Labor and Employment Law Commons^™

Mutual Marginalization: Individuals With Disabilities And Workers With Caregiving Responsibilities, Nicole B. Porter

Faculty Publications

This Article explores the marginalization of two groups of employees--individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers' expectations of an "ideal worker." Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal-worker norm. The need for accommodation causes both groups of employees to suffer from "special-treatment stigma," which manifests itself in …

Finding A Fix For The Fmla: A New Perspective, A New Solution, Nicole B. Porter

Faculty Publications

When the Family and Medical Leave Act ("FMLA") was enacted in 1993, it was considered landmark legislation.... Yet, despite the promise of the FMLA, by almost all accounts it has not achieved much.... Over the years, scholars have proposed many solutions to improve the FMLA.

[...]

In this article, I am taking a different perspective and proposing a reform that I have not seen proposed before. Of all of the problems with the FMLA, the one that gets the least attention is the frequency with which employees abuse their rights under the FMLA and the difficulty employers have administering the …

MartinIzing Title I Of The Americans With Disabilities Act, Nicole B. Porter

Faculty Publications

Prior to the ADA Amendments Act of 2008, relatively few cases proceeded past the initial inquiry of whether the plaintiff was covered by the ADA. Consequently, the scope of an employer's obligation to provide a reasonable accommodation to an individual with a disability remains under-developed and under-theorized. Now that the Amendments have made it easier for plaintiffs to prove that they have a disability under the ADA, we can expect to see more courts struggling with many difficult reasonable accommodation issues. The current case law is chaotic, providing little guidance to employers and courts in determining whether an accommodation is …

Relieving (Most Of) The Tension: A Review Essay Of Samuel R. Bagenstos, Law And The Contradictions Of The Disability Rights Movement, Nicole B. Porter

Faculty Publications

This Review Essay reveals the considerable contribution made by Professor Samuel Bagenstos in his book, Law and the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, …

Height Discrimination In Employment, Isaac B. Rosenberg

W&M Law Student Publications

This Article looks critically at heightism, i.e., prejudice or discrimination against a person on the basis of his or her height. Although much scholarship has focused on other forms of trait-based discrimination—most notably weight and appearance discrimination, both of which indirectly involve height as a component—little has focused on “pure” height discrimination. Nevertheless, within the past five years courts, scholars, and legislatures have increasingly tackled these non-traditional forms of discrimination. As such, this Article endeavors to fill the gap in the existing scholarship.

This Article specifically focuses on heightism in the workplace, with an emphasis on prejudice against short people …

Reasonable Burdens: Resolving The Conflict Between Disabled Employees And Their Coworkers, Nicole B. Porter

Faculty Publications

This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in U.S. Airways, Inc. v. Barnett) have weighed in on this debate, but their analyses fall short of the ultimate goal of this Article--to achieve equal opportunity for individuals with disabilities without unnecessarily interfering with the rights of other employees. In order to achieve that goal, this Article proposes a …

Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Emergency Preparedness And Disability, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone

Faculty Publications

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …

Victimizing The Abused?: Is Termination The Solution When Domestic Violence Comes To Work?, Nicole B. Porter

Faculty Publications

Domestic violence occurs in the workplace more frequently than one might presume. Workplace violence is the number one cause of death for women in the workplace in part because of domestic violence spillover, where an abuser harms his victim as well as any co-workers who try to intervene.

The conflict between domestic violence and the workplace is often exposed in its rawest state when a victim of domestic violence is considered to be a threat to the workplace by her employer.

The initial reaction of most people when hearing of [a] hypothetical [in which an employer fires a domestic violence …

Same Struggle, Different Difference: Ada Accommodations As Antidiscrimination, Michael Ashley Stein

Faculty Publications

The Americans with Disabilities Act (ADA) was heralded as an "emancipation proclamation" for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this prevalent belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by …

Labor Markets, Rationality, And Workers With Disabilities, Michael Ashley Stein

Faculty Publications

No abstract provided.