Disability Law Commons^™

Alternative Approaches To Judicial Review Of Social Security Disability Cases, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

For many years, Congress has had various bills before it to create alternatives to the current practice of Article III review (in district courts) of Social Security disability cases. This report, prepared initially for the Social Security Advisory Board, reviews the various legislative proposals and statutory alternatives such as the Veterans Administration administrative/judicial review structure. It concludes that, on balance, review before an Article I court (with Court of Appeals review limited to purely legal issues) has numerous advantages over the present system. These advantages include improvements in the accuracy and consistency of results (the federal district courts have vastly …

Developing A Full And Fair Evidentiary Record In A Nonadversary Setting: Two Proposals For Improving Social Security Disability Adjudications, Jeffrey Lubbers, Frank S. Bloch, Paul R. Verkuil

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Labor Market Experience Of Workers With Disabilities: The Ada And Beyond, Julie L. Hotchkiss

Upjohn Press

This book focuses on the labor market provisions of the Americans with Disabilities Act (ADA). It provides a comprehensive analysis of the current labor market experience of American workers with disabilities and an assessment of the impact the ADA has had on that experience.

The Decline In Employment Of People With Disabilities: A Policy Puzzle, David C. Stapleton Editor, Richard V. Burkhauser Editor

Upjohn Press

The book begins with a documentation of the employment rate decline and ends by spelling out the implications of this decline for public policy. However, the bulk of the book provides a detailed examination of the various explanations for the puzzling decline in employment among the working-aged population with disabilities.

The Interaction Of The Ada, The Fmla, And Workers' Compensation: Why Can't We Be Friends?, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article addresses some of the issues that arise when an employee injured at work qualifies for leave under the ADA, the FMLA and workers' compensation statutes. Part II of the Article provides a brief overview of these
three statutory schemes, focusing on the provisions, which define employee and employer qualification and the rights and responsibilities surrounding leave due to a work-related injury. Part III examines how the courts have resolved some of the overlapping and conflicting provisions contained in these statutes. This section particularly focuses on how the courts address employer obligations under all three statutes when an employee …

Enabling Work For People With Disabilities: A Post-Integrationist Revision Of Underutilized Tax Incentives, Francine J. Lipman

Scholarly Works

No abstract provided.

Reasonable Accommodation As Part And Parcel Of The Antidiscrimination Project, Mary Crossley

Articles

Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has …

Access To The Courts: A Blueprint For Successful Litigation Under The Americans With Disabilities Act And The Rehabilitation Act, Marc Charmatz, Antoinette Mcrae

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Latex Allergy Crisis: Proposing A Healthy Solution To The Dilemma Facing The Medical Community, Lynn Cherne-Breckner

Journal of Law and Health

The explosion in the number and severity of latex allergies began with the emergence of the AIDS epidemic as the Centers for Disease Control issued universal precautions advising health care workers to use protective barriers to prevent the spread of the infection. This resulted in constant use of the gloves by medical workers and a great increase in demand for cost effective gloves. Essentially, the quality of the glove making process decreased, increasing the amount of allergy inducing proteins excreted to wearers. Afflicted workers include physicians, nurses, dentists, dental hygienists, operating room personnel, laboratory technicians and ambulance attendants among others. …

Case Studies On The Implementation Of The Workforce Investment Act: Focus On Co-Location, Sheila Fesko, Jaimie Ciulla Timmons, Allison Cohen Hall

Case Studies Series, Institute for Community Inclusion

Seamless service delivery means that a customer receiving services can move between two or more agencies with limited disruption. Seamless services have not been accomplished when a customer must take a cross-town bus to travel from one agency to another. To address this issue, many One-Stop career centers are looking into how staff from their partner agencies can physically share space. This can range from a single staff person from an agency working in the Center on specific days of the week (itinerant staffing) to all staff from that agency working there on a full-time basis (full co-location). Staff report …

Case Studies On The Implementation Of The Workforce Investment Act: Focus On Accessibility, Sheila Fesko, Jaimie Ciulla Timmons, Allison Cohen Hall

Case Studies Series, Institute for Community Inclusion

Universal access is a central tenet of the Workforce Investment Act (WIA) and mandates that One-Stop Career Center (One-Stop) services be accessible for individuals with disabilities. Partnerships between Vocational Rehabilitation (VR) and workforce development agencies have increased awareness about the importance of service accessibility and states have been responding to this issue in their planning and service delivery. This brief highlights the innovative strategies states have used to make their One-Stops better able to support job seekers with disabilities. This brief is part of a series of products offering practical solutions for state and local entities as they implement the …

Case Studies On The Implementation Of The Workforce Investment Act: Focus On Involving Customers With Disabilities, Sheila Fesko, Jaimie Ciulla Timmons, Allison Cohen Hall

Case Studies Series, Institute for Community Inclusion

Although it is uniformly accepted that customers with disabilities should be involved in the process to create a new workforce system under the mandates of the Workforce Investment Act (WIA), anecdotal evidence suggests this to be more rhetoric than reality. Currently One-Stop Career Centers, workforce boards, and states are struggling with how to solicit and incorporate this important input into the planning process. The following is offered as a tool to help involve customers with disabilities as One-Stop centers are developed. This brief is part of a series of products offering practical solutions for state and local entities as they …

Tools For Inclusion: Making It Easier To Go To Work: What The Changes At Social Security Mean To You, David Hoff, Elena Varney, Lisa O'Connor

Tools for Inclusion Series, Institute for Community Inclusion

Recent changes to Social Security reduce the financial consequences of working for people who receive benefits. This publication explains the changes and how they impact people with disabilities who want to work.

Title Vii Retaliation, A Unique Breed, 36 J. Marshall L. Rev. 925 (2003), David Anthony Rutter

UIC Law Review

No abstract provided.

Corrective Justice And Title I Of The Ada, Sharona Hoffman

Faculty Publications

Several recent studies have shown that employment discrimination plaintiffs filing lawsuits in federal court under Title I of the Americans with Disabilities Act (ADA) win only approximately five percent of their cases. This Article argues that this phenomenon is attributable at least in part to the ADA's very flawed definition of the term "disability." It suggests that the current definition be abandoned and that a new approach be adopted, one that would reshape the ADA's protected class so that it more closely resembles a discrete and insular minority, such as those traditionally protected by the civil rights laws. While Title …

Beyond Dusky And Godinez: Competency Before And After Trial, Michael L. Perlin

Articles & Chapters

Scholars have carefully considered all aspects of the incompetency to stand trial process, questions involving incompetency to confess, questions involving incompetency to be executed, and, to a lesser extent, questions related to incompetency to plead guilty or to waive counsel, but little attention has been paid to the relationship between incompetency and the full range of other criminal procedure issues: sentencing, appeals, consent to searches, and others. This article discusses this range of issues, assesses the factors relied upon by courts in deciding these cases and attempts to offer an agenda for future scholarly developments in this area.

Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo

All Faculty Scholarship

In its recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act, and specifically the questions of who should be protected under the ADA, and what such protection requires. In the wake of the Court's decisions, workers have found it increasingly difficult to assert and protect their right to be free of disability-based discrimination in the workplace. Given the widespread influence of John Rawls in contemporary discussions of social, political and economic justice, his recent and final formulation of his theory of distributive justice presents a significant and promising philosophical foundation for evaluation of …

Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo

Articles

John Rawls has been called the most significant and influential moral philosopher of the twentieth century, and his ideas have deeply influenced discussions of social, political, and economic justice across disciplines including law, philosophy, and political science. Given his preeminence, does Rawls's theory of justice as fairness fail in either of the two ways described above or is it a promising analysis for achieving justice for people with disabilities?

In its most recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act of 1990 (the ADA). In several significant decisions, it has grappled with …

Safe, But Not Sound: Limiting Safe Harbor Immunity For Health And Disability Insurers And Self-Insured Employers Under The Americans With Disabilities Act, Rachel Schneller Ziegler

Michigan Law Review

When Congress passed the Americans with Disabilities Act ("ADA") on July 26, 1990, supporters heralded the Act as a full-scale victory for the 43 million disabled Americans. The Act's protections went far beyond those of its predecessor, the Rehabilitation Act of 1974, which only prohibited discrimination against individuals with disabilities by entities receiving federal funding. The new act was intended to prevent discrimination by private and public employers, public services, and public accommodations. In a bill signing ceremony at the White House, in front of more than two thousand advocates for the disabled, then President George Bush likened the ADA …

From Paper To Action: State-Level Interagency Agreements For Supported Employment Of People With Disabilities, Deborah Metzel, Susan M. Foley, John Butterworth

All Institute for Community Inclusion Publications

Over the past decade there has been an increasing national emphasis on the participation of individuals with disabilities in the labor force. This concern was recognized through Executive Order No. 13078 signed by President Bill Clinton in March 1998, establishing the Presidential Task Force on Employment of Adults with Disabilities. The Task Force was charged with a mission "to create a coordinated and aggressive policy to bring adults with disabilities into gainful employment at a rate that is as close as possible to that of the general adult population" (Section 1 (c)). Legislation and policy changes have also been directed …

Research To Practice: Collaboration Between Medicaid And Other State Agencies- Findings From The National Survey Of State Systems And Employment For People With Disabilities, Jennifer Sullivan Sulewski, Dana Scott Gilmore, Susan Foley

Research to Practice Series, Institute for Community Inclusion

Many state Medicaid agencies are playing a greater role in multi-agency efforts to promote employment for people with disabilities. This brief uses data from the National Survey of State Systems and Employment for People with Disabilities to explore the varieties of collaboration Medicaid agencies are using and the agencies they are collaborating with.

Disability, Reciprocity, And 'Real Efficiency': A Unified Approach, Amy L. Wax

All Faculty Scholarship

The Americans with Disabilities Act (ADA) requires private employers to offer reasonable accommodation to disabled persons capable of performing the core elements of a job. Some economists have attacked the statute as ill-advised and inefficient. In examining the efficiency of the ADA, this article analyzes its cost-effectiveness against the following social and legal background conditions: First, society will honor a minimum commitment to provide basic support to persons - including the medically disabled - who, through no fault of their own, cannot earn enough to maintain a minimally decent standard of living. Second, legal and pragmatic factors, including "sticky" or …

Education Law, D. Patrick Lacy Jr., Kathleen S. Mehfoud

University of Richmond Law Review

No abstract provided.

Health Care Law, Peter M. Mellette, Emily W. G. Towey, J. Vaden Hunt

University of Richmond Law Review

No abstract provided.

Institute Brief: Achieving Quality Services: A Checklist For Evaluating Your Agency, Doris Hamner, Jaimie Ciulla Timmons, David Hoff

The Institute Brief Series, Institute for Community Inclusion

This checklist can help staff and directors at One-Stop Career Centers and state and private agencies evaluate the quality and responsiveness of their services to job seekers with disabilities. Areas covered include access to resources, agency culture, coordination, and consumer-directedness.

Case Studies On The Implementation Of The Workforce Investment Act: Spotlight On Maine, Jaimie Ciulla Timmons, Sheila Fesko, Allison Cohen Hall

Case Studies Series, Institute for Community Inclusion

The implementation of the Workforce Investment Act (WIA) requires major organizational change for employment and training agencies. The initiative emphasizes coordination, collaboration and communication among organizations for better service delivery. At this time, states are developing systems that will enable them to address the needs of all customers seeking employment. The Institute for Community Inclusion (ICI) has conducted state case studies for two purposes: (1) to identify how states have begun the process of collaboration under the new mandates of WIA; and (2) to understand the impact on customers with disabilities. This is the third in a series of publications …

Tools For Inclusion: Evaluating Your Agency And Its Services: A Checklist For Job Seekers With Disabilities, Jaimie Ciulla Timmons, Melanie Jordan, David Hoff

Tools for Inclusion Series, Institute for Community Inclusion

It is important to evaluate employment services and decide if you are getting the results that you are looking for. You should have high expectations! If you are currently using an agency for help with employment, this checklist can help you make sure you are getting what you need.

Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley

Washington Law Review

The Individuals with Disabilities Education Act (IDEA) requires school districts to educate all students receiving special education in the "least restrictive environment" appropriate for each student's needs. This provision reflects Congress' preference that children with disabilities be educated alongside their non-disabled peers to the maximum extent possible. The U.S. Supreme Court has never determined how to test whether a school district has complied with this provision, so the federal circuits have developed several different tests. However, these circuit tests all arose prior to the most recent 1997 Amendments to the IDEA. This Comment explores the development and subsequent application of …

Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing

Washington Law Review

The Americans with Disabilities Act (ADA) creates and protects employment opportunities for disabled persons by prohibiting adverse employment actions in the form of disparate treatment and disparate impact. Additionally, subparts (A) and (B) of § 12112(b)(5) of the ADA place distinct duties on employers to accommodate disabled persons, protecting, respectively, existing and future employment opportunities. Because the ADA protects both existing and future opportunities, the duty to accommodate may be breached in two distinct manners. When a plaintiff alleges failure to accommodate, a court must determine which section of the ADA applies and select an appropriate analytical framework for the …

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn

Washington Law Review

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …