Disability Law Commons^™

Adverse Employment Actions In Failure-To-Accommodate Claims: Much Ado About Nothing, Nicole Buonocore Porter

Faculty Publications

This Article addresses a circuit split in the disability law jurisprudence. Under the Americans with Disabilities Act (ADA), employees generally bring two types of claims against their employers—discrimination claims and failure-to-accommodate claims. Succeeding on a discrimination claim requires proving that the employee suffered an adverse employment action. Succeeding on a failure-to-accommodate claim does not. But several courts—including a recent case in the Tenth Circuit—have added this adverse-employment-action requirement into failure-to-accommodate claims. In doing so, these courts have camouflaged important issues about an employer’s obligation to provide a reasonable accommodation to disabled employees. Although I believe that courts that require an …

Say “No” To Discrimination, “Yes” To Accommodation: Why States Should Prohibit Discrimination Of Workers Who Use Cannabis For Medical Purposes, Anne Marie Lofaso, Lakyn D. Cecil

Seattle University Law Review

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …

Unfit To Be Seen: Customer Preferences And The Americans With Disabilities Act, Craig Westergard

Brigham Young University Journal of Public Law

No abstract provided.

“Not Yet A Priority:” The Intersectional Exploration Of Labor Market Access For People With Disabilities, Anona Neal

Independent Study Project (ISP) Collection

Approximately one in four families in Morocco are affected by disability. Of those affected by disability, many are in vulnerable situations, because there is an explicit linkage between having a disability and likelihood of experiencing poverty. The primary reasons for this phenomenon include lack of access to education, employment and health care. Following the Arab Spring, the Moroccan government implemented Article 166 which explicitly banned workplace discrimination against people with disabilities (PWD); however, only 13% of those affected by disability of working age can find employment. In this paper, I investigate the obstacles PWD face that prevent them from accessing …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

A Reasonable Solution For Working Parents: Expanding Reasonable Accommodation Under The Americans With Disabilities Act To Parents Of Children With Disabilities, Katherine Lease

William & Mary Journal of Race, Gender, and Social Justice

There is a growing intersection between a woman’s child-rearing and work responsibilities, but federal law inadequately addresses this issue. For mothers who have a child with a disability, they face increased parenting demands, which often lead to detrimental changes in their employment status and negative perceptions of their work ability and commitment. Many women face expectations to simultaneously be the perfect mother and the ideal worker, but this is largely unattainable when faced with the demands of raising a child with a disability.

This Note will explore the development and inadequacy of the current protection against association discrimination, that is, …

Mandatory Reassignment As A Reasonable Accommodation Under The Americans With Disabilities Act Turns “Nondiscrimination Into Discrimination”, Christina M. Loguidice

Brooklyn Law Review

This note directly addresses one of the most pertinent and core civil rights issues—employment rights of individuals with disabilities—and proposes a unique contribution to current scholarship. The problem lies in the interpretation of the Americans With Disabilities Act’s provision that suggests that reassignment “may” be a reasonable accommodation, which is defined as any accommodation required for an employee with a disability to equalize success and opportunity in the workplace. The word “may” in the provision creates confusion over whether reassignment is always reasonable. Hence, circuit courts are divided on the issue of whether mandatory reassignment is always a reasonable accommodation …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights And Non-Adversarial Procedures In The Va Disability Benefits System, Hugh Mcclean

SMU Law Review

The refrain “Delay, Deny, Wait Till They Die” is more than a slogan for disabled American veterans. It is a battle cry for soldiers, sailors, and airmen who have long put aside their armaments but remain entangled in the unending appeals process of the Department of Veterans Affairs’ (VA) disability benefits system. When Congress created a system for the fair and equitable distribution of military benefits, it did so with the intent that the system be non-adversarial. Congress did not want disabled veterans pitted against the nation that they had sought to defend in litigation over disability benefits. However, defining …

Canines At The Company, Felines At The Factory: The Risks And Rewards Of Incorporating Service Animals And Companion Animals Into The Workplace, Rebecca J. Huss

Dickinson Law Review (2017-Present)

With unemployment rates at historically low levels, the ability of an employer to attract and retain productive employees is key to a company’s success. Simultaneously, the percentage of persons in the United States with disabilities is increasing. Additionally, many persons without disabilities consider allowing companion animals at work a valuable employee benefit. This Article focuses on the legal and workplace implications of incorporating service animals and companion animals at work.

This Article begins by analyzing when an employer must accommodate a request by an employee with a disability to be accompanied by a service animal at work under the Americans …

Fifth Indifference: Clarifying The Fifth Circuit's Intent Standard For Damages Under Title Ii Of The Americans With Disabilities Act, Derek Warden

Texas A&M Law Review

The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts …

A New Look At The Ada's Undue Hardship Defense, Nicole Buonocore Porter

Faculty Publications

...This Article will not only summarize and attempt to categorize the undue hardship cases but will also identify three trends that become apparent when engaging in a thorough analysis of this body of cases.

This Article will proceed in four additional parts. Part II will provide the background of the undue hardship provision, including the statutory language and its regulations, the legislative history, and the undue hardship cases decided under the precursor to the ADA—the Rehabilitation Act of 1973. Part III will delve into the undue hardship cases under the ADA. Even though most people think about undue hardship as …

Disabling Ada Retaliation Claims, Nicole Buonocore Porter

Faculty Publications

In this article, I set out to explore what effect the expansion of the definition of “disability” would have on the post-Amendments retaliation cases. What I discovered surprised me. Despite the common belief that retaliation cases are often more successful than cases alleging status-based discrimination, this did not prove to be true with respect to this dataset of ADA retaliation cases. In fact, as indicated by the title of this article, courts are continuing to disable employees’ retaliation claims under the ADA. Plaintiffs lost (i.e., did not survive a motion to dismiss or a motion for summary judgment) in three-quarters …

Explaining "Not Disabled" Cases Ten Years After The Adaaa: A Story Of Ignorance, Incompetence, And Possibly Animus, Nicole Buonocore Porter

Faculty Publications

I set out to find and read every case that addressed the definition of disability from the point my last article left off until the present (January 1, 2014 through December 31, 2018). This resulted in 976 cases. Of those 976 cases, the court erroneously held that the plaintiff was not disabled in 210 of them...

This Article attempts to explain what went wrong—why did courts incorrectly hold that the plaintiff was not disabled in more than 200 cases? The answer, I’ve concluded, is a little bit of ignorance (courts and parties that were apparently unaware that the ADAAA was …

Dads Are Parents, Too: Why Amending The Pregnancy Discrimination Act Is Necessary For Courts To Determine If A Parental Leave Policy Violates Title Vii, Krista Gay

Brooklyn Journal of Corporate, Financial & Commercial Law

To attract millennials desiring a work-life balance, large companies have begun to offer new parent leave to both male and female employees and commonly offer longer leave to women than men. Although a company may offer pregnancy disability leave to women without offering similar leave to men, if the company classifies the leave as parental bonding leave, it must be offered equally. If it is not, as highlighted by recent lawsuits against JP Morgan and Estée Lauder, a Title VII claim can arise. Historically, courts have had difficulty deciding if such a policy does in fact violate Title VII, because …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Compensating Work-Related Disability: Theory, Politics And History Of The Commodification-Decommodification Dialectic, Eric Tucker

Articles & Book Chapters

In 2015, the last year for which we have complete Canadian data, workers' compensation boards recognized that 852 Canadian workers died from work-related injuries and diseases and 232,629 workers experienced disabling injuries requiring them to take time off work. About 13 percent of those injured will have permanent disabilities of varying severity.These figures significantly underestimate the true burden of work-related disability for at least three reasons. First, the percentage of the paid Canadian workforce covered by workers' compensation has been shrinking. In 2008, it was estimated to stand at about 80 percent, although coverage bounced back to about 85 percent …

Sb 201 - Sick Leave, Mary Elizabeth D. Steinhaus, Chadwick L. Williams

Georgia State University Law Review

The Act amends Georgia’s general provisions relating to labor and industrial relations by adding a new provision that requires qualifying employers to allow their employees to use sick leave to care for immediate family members.

The Ada And The Fight Against Employment Discrimination, 52 Uic J. Marshall L. Rev. 51 (2018), Brianne Perkins

UIC Law Review

No abstract provided.

Index: Sports Law In Law Reviews And Journals, Jordan Lysiak

Marquette Sports Law Review

None

Research To Practice: State Employment First Policies: State Definitions, Goals And Values, Jennifer Bose, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Research to Practice Series, Institute for Community Inclusion

This brief is the first in a series focusing on Employment First implementation as it relates to one of the seven elements within the High-Performing States in Integrated Employment model. It examines the background of circumstances under which Employment First efforts began in seven states, and introduces each state’s values, mission, and goals around increasing employment opportunities for people with disabilities. States may use the lessons in this brief to develop an Employment First policy, or to evolve existing efforts.

"When They Enter, We All Enter": Opening The Door To Intersectional Discrimination Claims Based On Race And Disability, Alice Abrokwa

Michigan Journal of Race and Law

This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of …

Cumulative Hardship, Nicole Buonocore Porter

Faculty Publications

Although there are plenty of cases that mention the undue-hardship provision under the ADA, there are relatively few cases where the undue-hardship provision is outcome-determinative or even discussed in depth. To complicate matters further, the Author of this Article could find no case where the court discussed the issue of cumulative hardship in the ADA context. This Article explores this issue and arrives at possible solutions for how this issue should be resolved when it arises.

This Article proceeds in four parts. Part I gives an introduction to the ADA and the undue-hardship provision. Part 1H gets to the heart …

Taking Care Of Business And Protecting Maine's Employees: Supervisor Liability For Employment Discrimination Under The Maine Human Rights Act, Katharine I. Rand

Maine Law Review

On the heels of federal legislation prohibiting employment discrimination most states, including Maine, have enacted their own civil or human rights statutes aimed at eliminating discriminatory behavior in the workplace. Like its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), the Maine Human Rights Act, enacted in 1971, prohibits employers from discriminating on the basis of race, gender, age, religion, or national origin and provides a civil remedy for victims of employment discrimination. Moreover, like Title VII, the question of just who constitutes a liable “employer” under the Maine Human Rights Act has been the …

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Cardozo Law Review

No abstract provided.

An Americans With Disabilities Act For Everyone, And For The Ages As Well, Anita Silvers, Leslie P. Francis

Cardozo Law Review

The article argues that the Americans with Disabilities Act (ADA) was originally intended to universally protect individuals from disability-based discrimination, rather than focusing on categorizing who is disabled. The authors contend that the ADA should be interpreted to prevent discrimination based on disability for everyone, regardless of specific eligibility criteria, and that the statute's effectiveness has been undermined by court decisions that emphasize categorical limitations. They advocate for a broader, more inclusive understanding of the ADA, aligned with its original purpose of combating discrimination.

Regarding Age As A Disability: Conceptualizing Age Discrimination At Work As (Mis)Perception Of Disability Discrimination, Kevin M. Cremin

Cardozo Law Review

No abstract provided.

Making Accessible Futures: From The Capitol Crawl To #Cripthevote, Faye Ginsburg, Rayna Rapp

Cardozo Law Review

The article examines the evolving recognition and integration of disability rights in American society, emphasizing the transformative impact of the Americans with Disabilities Act (ADA) and the cultural shift towards inclusivity. It highlights the growing demographic presence of individuals with disabilities, the role of activism, and the importance of inclusive design and representation in media and politics. The authors argue that while significant progress has been made, ongoing advocacy is crucial to address persistent challenges and ensure the full recognition of disability as a valued aspect of human diversity.