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Foreword: The Disability Frame, Jasmine E. Harris, Karen Tani Jan 2022

Foreword: The Disability Frame, Jasmine E. Harris, Karen Tani

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This essay is the Foreword to the 2022 University of Pennsylvania Law Review symposium on “The Disability Frame.” “The disability frame” refers to the characterization of a particular controversy or problem as being “about” disability, which in turn can imply that disability-focused laws ought to resolve or adjudicate the issue. We see this frame function in at least four ways. First, the disability frame is sometimes invoked as a shield, with the hope that it will insulate someone from the reach of the state or exempt a person from an unwelcome or onerous responsibility (e.g., jury service, vaccination, a criminal …


Editor, Ethical Challenges In Discharge Planning: Stories From Patients, Elizabeth Pendo Jan 2021

Editor, Ethical Challenges In Discharge Planning: Stories From Patients, Elizabeth Pendo

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This symposium includes twelve personal narratives from patients and their caregivers who have navigated challenges in planning for discharge from the hospital and transition to care at home, a rehabilitation facility, long-term care facility, or hospice. Three commentaries on these narratives are also included, authored by experts and scholars in the fields of medicine, bioethics, and health policy with particular interest in vulnerable populations. The goal of this symposium is to call attention to the experiences of patients during transitions in care and to enrich discussions of ethical issues in discharge planning.


Reckoning With Race And Disability, Jasmine E. Harris Jan 2021

Reckoning With Race And Disability, Jasmine E. Harris

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Our national reckoning with race and inequality must include disability. Race and disability have a complicated but interconnected history. Yet discussions of our most salient socio-political issues such as police violence, prison abolition, healthcare, poverty, and education continue to treat race and disability as distinct, largely biologically based distinctions justifying differential treatment in law and policy. This approach has ignored the ways in which states have relied on disability as a tool of subordination, leading to the invisibility of disabled people of color in civil rights movements and an incomplete theoretical and remedial framework for contemporary justice initiatives. Legal scholars …


Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani Jan 2021

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

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This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.


Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra Jul 2020

Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra

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As states reopen, an increasing number of state and local officials are requiring people to wear face masks while out of the home. Grocery stores, retail outlets, restaurants and other businesses are also announcing their own mask policies, which may differ from public policies. Public health measures to stop the spread of the coronavirus such as wearing masks have the potential to greatly benefit millions of Americans with disabilities, who are particularly vulnerable to the impact of COVID-19. But certain disabilities may make it difficult or inadvisable to wear a mask.

Mask-wearing has become a political flashpoint, putting people with …


The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni Jan 2020

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

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Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …


The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss Jan 2020

The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss

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Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate …


The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter Jan 2020

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

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As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications …


Protecting The Rights Of People With Disabilities, Elizabeth Pendo Jan 2020

Protecting The Rights Of People With Disabilities, Elizabeth Pendo

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One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of under-served racial and ethnic groups with disabilities experience greater disparities in health status and access …


Ensuring The Reproductive Rights Of Women With Intellectual Disability, Nicole Agaronnik, Elizabeth Pendo, Tara Lagu, Christene Dejong, Aixa Perez-Caraballo, Lisa Iezzoni Jan 2020

Ensuring The Reproductive Rights Of Women With Intellectual Disability, Nicole Agaronnik, Elizabeth Pendo, Tara Lagu, Christene Dejong, Aixa Perez-Caraballo, Lisa Iezzoni

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Background: Women with intellectual disability experience disparities in sexual and reproductive health care services.

Methods: To explore perceptions of caring for persons with disability, including individuals with intellectual disability, we conducted open-ended individual interviews with 20 practising physicians and three video-based focus group interviews with an additional 22 practising physicians, which reached data saturation. Interviews were transcribed verbatim. We used conventional content analysis methods to analyse transcripts.

Result: Physicians indicated that intellectual disability can pose challenges to providing sexual and reproductive health care. Observations coalesced around four themes: (1) communication; (2) routine preventive care; (3) contraception and sterilisation; and (4) …


Knowledge Of Practicing Physicians About Their Legal Obligations When Caring For Patients With Disability, Nicole Agaronnik, Elizabeth Pendo, Julie Ressalam, Eric G. Campbell, Lisa Iezzoni Jan 2019

Knowledge Of Practicing Physicians About Their Legal Obligations When Caring For Patients With Disability, Nicole Agaronnik, Elizabeth Pendo, Julie Ressalam, Eric G. Campbell, Lisa Iezzoni

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doi: 10.1377/hlthaff.2018.05060 HEALTH AFFAIRS 38, NO. 4 (2019): 545–553


Accessibility Of Medical Diagnostic Equipment - Implications For People With Disability, Lisa Iezzoni, Elizabeth Pendo Jan 2018

Accessibility Of Medical Diagnostic Equipment - Implications For People With Disability, Lisa Iezzoni, Elizabeth Pendo

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Under Attorney General Jeff Sessions, the U.S. Department of Justice (DOJ) has inactivated or rescinded numerous rules and guidelines issued by prior administrations, sometimes attracting considerable public attention in the process. Little noticed, however, was a decision by the DOJ on December 26, 2017, to formally withdraw four Advance Notices of Proposed Rulemaking related to Titles II and III of the Americans with Disabilities Act (ADA), including rulemaking that addressed making medical diagnostic equipment accessible to people with disability. For now, this step halts efforts on a national level to ensure accessibility of such equipment, which includes exam tables, weight …


Hidden From View: Disability, Segregation And Work, Elizabeth Pendo Jan 2016

Hidden From View: Disability, Segregation And Work, Elizabeth Pendo

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The employment provisions of the Americans with Disabilities Act of 1990 were intended to bring working-age people with disabilities into the workplace by providing options for them to seek and gain meaningful, integrated employment. Although the ADA has made significant gains, the rate of progress in employment has been disappointing. While the lack of progress of people with disabilities in the traditional workplace has received attention, the work done by many, especially those with severe disabilities in segregated workplaces, remains hidden in sheltered workshops. This chapter explores the intersection of the concepts of disability, invisibility, and work and identifies the …


Processing Disability, Jasmine E. Harris Jan 2015

Processing Disability, Jasmine E. Harris

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This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, …


Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo Jan 2013

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

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Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.


Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo Jan 2011

Shifting The Conversation: Disability, Disparities And Health Care Reform, Elizabeth Pendo

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This piece is an invitation to consider health care reform as a political shift in our thinking about the barriers and inequalities experienced by people with disabilities in our health care system. Traditionally, when these issues have been addressed, the predominant approach has been through a civil rights framework, specifically the Rehabilitation Act of 1973 and the American with Disabilities Act of 1990 (ADA). Now, the Patient Protection and Affordable Care Act of 2010 (PPACA) offers a new approach. This essay will outline the barriers to health and health care experienced by people with disabilities, drawing upon my ongoing research …


Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo Jan 2010

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

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The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …


A Service Learning Project: Disability, Access And Health Care, Elizabeth Pendo Jan 2010

A Service Learning Project: Disability, Access And Health Care, Elizabeth Pendo

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Last summer, I was thinking about a public service project for my disability discrimination law course. I teach the course in fall, and try to incorporate a project each year. At the same time, I was working on a project looking at barriers to health care for people with disabilities. Some of the barriers are well known, such as lower average incomes, disproportionate poverty, and issues with insurance coverage, to name just a few. I was looking at barriers of a different type, however: those posed by physically inaccessible facilities and equipment. This was a new area for me. Like …


Reducing Disparities Through Health Care Reform: Disability And Accessible Medical Equipment, Elizabeth Pendo Jan 2010

Reducing Disparities Through Health Care Reform: Disability And Accessible Medical Equipment, Elizabeth Pendo

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People with disabilities face multiple barriers to adequate health care and report poorer health status than people without disabilities. Although health care institutions, offices, and programs are required to be accessible, people with disabilities are still receiving unequal and in many cases inadequate care. The 2009 report by the National Council on Disability, The Current State of Health Care for People with Disabilities, reaffirmed some of these findings, concluding that people with disabilities experience significant health disparities and barriers to health care; encounter a lack of coverage for necessary services, medications, equipment, and technologies; and are not included in the …


The Business Of Employing People With Disabilities: Four Case Studies, Alexander A. Boni-Saenz, Allen W. Heinemann, Deborah S. Crown, Linda L. Emanuel Jun 2006

The Business Of Employing People With Disabilities: Four Case Studies, Alexander A. Boni-Saenz, Allen W. Heinemann, Deborah S. Crown, Linda L. Emanuel

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This exploratory study examines employer attitudes towards people with disabilities in the labor market. Through in-depth, semi-structured interviews with senior management, human resources staff, directors of diversity, and hiring managers at four corporations, it pinpoints reasons why businesses chose to hire people with disabilities, investigates the perceived benefits and barriers to hiring people with disabilities, and identifies strategies for successfully hiring and retaining workers with disabilities. It fills a gap in examining the attitudes and decision-making processes of U.S. companies that have been leaders in hiring people with disabilities, as well as delving into the special issues of small businesses …


The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo Jan 2005

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

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Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit …


Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo Jan 2005

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

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Proceedings of the 2004 Annual Meeting, Association of American Law Schools, Sections on Employee Benefits and Employment Discrimination. Panel includes: Professor Colleen E. Medill; Professor Helen Norton; Eve Gartner, Esq.; and Professor Elizabeth Pendo.


Substantially Limited Justice?: The Possibilities And Limits Of A New Rawlsian Analysis Of Disability-Based Discrimination, Elizabeth Pendo Jan 2003

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

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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 …


Disability, Reciprocity, And 'Real Efficiency': A Unified Approach, Amy L. Wax Nov 2002

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

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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 …


Disability, Doctors And Dollars: Distinguishing The Three Faces Of Reasonable Accommodation, Elizabeth Pendo Jan 2002

Disability, Doctors And Dollars: Distinguishing The Three Faces Of Reasonable Accommodation, Elizabeth Pendo

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Despite a decade of litigation, there is no consistent understanding of the reasonable accommodation requirement of Title I of the Americans with Disabilities Act of 1990 (the 'ADA'). Indeed, there are three inconsistent distributive outcomes that appear to comport with the reasonable accommodation requirement: cost-shifting, cost-sharing, and cost-avoidance.

One reason for such inconsistent outcomes is a failure to develop a coherent and consistent theory of disability. Because disability has been and continues to be medicalized, this Article takes a fresh look at the medical literature on health, illness, and disability. It recommends the use of the experiential health model over …