Disability Law Commons^™

From Advocacy To Inaction: Paradoxes Of The United States And The Convention On The Rights Of Persons With Disabilities, Elizabeth W. Raymakers

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

This Note utilizes an analytical lens to consider why the United States never ratified the Convention on the Rights of Persons with Disabilities (CRPD). The Note first establishes the history of the CRPD and turns to the history of attempted ratification by the United States. By examining the legislative history of the Convention, as well as the U.S. engagement internationally leading up to and subsequent to the ratification attempts, this Note establishes a more nuanced understanding of the United States’ stance on the CRPD. Subsequently, by applying an analytical framework intended to identify manifestations of support for aspects of international …

Easing The Limits Of The Statute Of Limitations: A Path To A More Equitable Idea, Sarah Shepley

William & Mary Law Review

Part I of this Note discusses the special education framework, outlining the rights and obligations of parents and school systems created by the Individuals with Disabilities in Education Act (IDEA). Part II evaluates the IDEA’s statute of limitations as the gatekeeping instrument of the due process complaint system and discusses the Third Circuit’s reconciliation of the seemingly conflicting statutory provisions of the IDEA in G.L. v. Ligonier Valley School District Authority. Part III situates the implications of the Ligonier decision within the broader special education landscape, discussing other courts’ adoption of or deviations from the Third Circuit’s interpretation, interpretations …

New Jersey And Guardians: Perfect Together? Suggested Improvements To Guardianship Laws In New Jersey For Adults With Developmental Disabilities, Caroline H. Osborne

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

New Jersey has a large population of adults with developmental disabilities, and many family members of adults with developmental disabilities will seek guardianship. Guardianships and conservatorships have been gaining widespread media attention and awareness. With celebrities coming forward to discuss their experiences and movies being made about their potential for abuse, there has been a new focus on reforming the systems that are in place to improve outcomes for those being placed under guardianships.

Guardians and conservators have been identifying several problems with the current system, including that it is too difficult to secure guardianship over their loved ones, and …

For The Right To Repair Oneself: Cybernetic Imds And The Plight Of Manufacturer Abandonment, Kathy Bacuta

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

One in four people in the United States are disabled, making them the country’s largest minority. Yet they are well-known as the forgotten minority because they are often overlooked by governments and international organizations, and are rarely included in diversity and equity discussions. This is clear in how little the United States fights for the rights of the disabled. The disability aid and big pharma industries have been accused of being parasitic, the public has been accused of being unaccommodating, and the state and federal government has been accused of being unhelpful towards supporting the lives of the disabled. However, …

Troubling Trends: Ada Definition-Of-Disability Cases 2019-2023, Nicole Buonocore Porter

Faculty Publications

This empirical Article continues my every-five-year tradition of examining every federal case discussing the definition of disability since the Americans with Disabilities Act (ADA) was amended, effective 2009. The results of this research from the third five-year period (2019–2023) are disappointing in both familiar and surprising ways. Similar to the 2014–2018 period, we continue to see way too many courts incorrectly applying (or not even citing to) the ADA Amendments Act. Moreover, I discovered several new troubling trends in this dataset that raise the possibility that we might be heading toward another backlash against ADA plaintiffs. This Article presents my …

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

Reimagining The Inclusive Jury, Anna Offit

Faculty Publications

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

Disability And Transnational Arbitration: Human Rights Linkages And Reasonable Accommodations, Ilias Bantekas

William & Mary Business Law Review

Disability intersects with arbitration as regards the mental capacity of a party to enter into an arbitration agreement, the appointment of arbitrators with disability and grounds for removal thereof, accommodations during arbitral proceedings for arbitrators and counsel with disabilities, as well as the costs for all appropriate accommodations. This Article demonstrates that the right to a fair trial, which is universally recognized in arbitration, dictates that parties and arbitral institutions be free to select arbitrators of their choice, and no impediments may be imposed against arbitrators with disabilities other than that they are able to fulfill the functions of their …

Subordination Through Schedules, Nicole Buonocore Porter

Faculty Publications

Our jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding …

Policing Veterans: What The Veterans Affairs Police Can Illustrate About The Policing Of Disability In America, Zachary R.M. Outzen

Faculty Publications

The Department of Veterans Affairs Police (“VA Police”), a federal law enforcement agency tasked with law enforcement on Department of Veterans Affairs (VA) properties, has a shocking record of misconduct and brutality against veterans. Because the VA is the largest integrated healthcare system in the United States, the VA Police are primarily responsible for policing VA medical facilities. While issues facing the veteran community have largely been analyzed as separate from those facing the American public at large, VA medical facilities replicate broader socioeconomic trends in policing of vulnerable populations. Veterans receiving VA healthcare services are disproportionately likely to be …

Making The Best From A Mess: Mental Health, Misconduct, And The "Insanity Defense" In The Va Disability Compensation System, Caleb R. Stone

Faculty Publications

The disability compensation system implemented by the Department of Veterans Affairs ("VA") is highly technical and complex. Before veterans reach questions concerning entitlement to benefits or the amount of compensation, they must first achieve basic eligibility for VA benefits. That involves receiving a discharge that is "honorable" for VA purposes. For some former servicemembers seeking benefits, using the VA's "insanity defense" to excuse misconduct leading to a less-than-honorable discharge may be the best avenue for obtaining compensation. The VA insanity provision contemplated in 38 U.S.C. s. 5303(b) and defined in 38 C.F.R. s. 3.354 is the only "defense" that allows …

What The Lawyer Well-Being Movement Could Learn From The Americans With Disabilities Act, Alex B. Long

William & Mary Law Review Online

Perhaps the central theme in all of the lawyer well-being literature is the profession's need to create a culture in which lawyers are proactive about taking care of themselves. This necessarily involves reducing some of the stigma associated with mental health issues so that lawyers feel comfortable to seek help when needed and to otherwise be mindful of their own well-being. The trick, obviously, is adopting an approach that meaningfully addresses the problems of mental health issues within the profession without further stigmatizing mental health issues more generally. This Article argues that despite its admirable efforts, the legal profession has …

When Legal Incapacity Becomes A Lack Of Personhood: Why A Ward's Ability To Sue In Their Own Name Should Be A Fundamental Aspect Of Virginia Guardianship, Rachel Davis

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

It is a fundamental failing of any legal system when it is unable to protect the most vulnerable within its population. Whether we are comfortable admitting it or not, guardian abuse of incapacitated wards has been well-documented across all fifty states. Virginia is no exception, and this lack of oversight leaves one of our most vulnerable populations without recourse. This Note argues that by simply granting a ward the ability to bring suit in their own name, Virginia may strike a significant blow to the dysfunction that systematically infects the guardianship process. This Note highlights Virginia statute and case law …

Disclaiming Disability, Nicole Buonocore Porter

Faculty Publications

In the Americans with Disabilities Act (“ADA”) Amendments Act of 2008, Congress ordered the courts to broadly interpret the definition of disability under the ADA. For the most part, courts have followed that instruction, but there are still too many instances in which they have not. One particularly pernicious error made by courts is relying on a plaintiff’s statement “disclaiming” her disability — that is, testifying that she does not consider herself “disabled” — to hold that she does not meet the statutory definition of disability, and therefore loses her claim. This Article addresses this error. Specifically, after cataloguing this …

Disability Diversity And Identity Capitalism, Nicole Buonocore Porter

Faculty Publications

I first read Professor Nancy Leong’s compelling book Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality when I was asked to provide a pre-publishing peer review. I was equal parts captivated and troubled by the numerous examples of identity capitalism (and its counterpart, identity entrepreneurialism) that I had never thought about, and perhaps even acquiesced in.

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But in all honesty, I was troubled after my initial review of the manuscript because I had the sense that Leong was suggesting that diversity itself is bad, or at least that concentrating on diversity is bad. Upon my review …

To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort

William & Mary Business Law Review

Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the …

Fulfilling Porter's Promise, Danielle Allyn

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

Despite the Porter court’s reference to a “long tradition of according leniency to veterans,” in the criminal legal system, veterans are overrepresented on death rows across America, including Georgia’s. Most of these veterans come to death row with experiences of marginalization due to other aspects of their identity, such as race or mental disability.

This Article examines the cases of six men executed in Georgia, each with a history of military service, and each with experiences of disenfranchisement based on race and/or mental disability. At trial, each confronted legal risks that disproportionately place Black people and people with mental disabilities …

Confronting Eugenics Means Finally Confronting Its Ableist Roots, Robyn M. Powell

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

In September 2020, a whistleblower complaint was filed alleging that hysterectomies are being performed on women at an immigration detention center in alarmingly high rates. Regrettably, forced sterilizations are part of the nation’s long-standing history of weaponizing reproduction to subjugate socially marginalized communities. While public outrage in response to the whistleblower complaint was swift and relentless, it largely failed to acknowledge how eugenic ideologies and practices, including compulsory sterilizations, are ongoing and deeply entrenched in ableism. Indeed, a conversation that recognizes the ways in which eugenics continues to target people with disabilities is long overdue.

This Article contextualizes how eugenics …

Digital Accessibility In The Hospitality And Tourism Industry: Legal And Ethical Considerations, Debra D. Burke, Kenneth J. Sanney, Dan Clapper

William & Mary Business Law Review

Federal law requires accessibility for public sector websites. What about the web pages and apps of hotels, restaurants, and tourism providers? The Americans with Disabilities Act may cover private sector websites if they are considered a place of public accommodation, but the law is unclear. This Article will provide an overview of the legal responsibilities of operators to provide accessibility to persons with disabilities, discuss the World Wide Web Consortium’s guidelines for web accessibility, and argue that the hospitality and tourism industry has a unique ethical obligation to fill in the gap where the legal system has failed this population.

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman

William & Mary Law Review

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district …

The Blind Leading The Deaf: An Investigation Of The Inconsistent Accommodations The Justice System Provides To People Who Are Deaf, Elizabeth Pindilli

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

Historically, and to this day, people with disabilities have not been considered capable of determining their own needs. Instead, the general population has taken it upon themselves to dictate what accommodations they shall receive. This becomes particularly problematic for the deaf community when interacting with the criminal justice system, where a lack of communication is synonymous with a lack of justice. In this situation, the state should defer to the individual’s understanding of their needs, or carry the burden of proving that another accommodation is equally effective.

The Website Accommodations Test: Applying The Americans With Disabilities Act To Websites, Ashley Cheff

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

In 2017, 814 lawsuits were filed alleging discrimination under the Americans with Disabilities Act (ADA) due to website inaccessibility, up from 262 in the previous year. Beginning in July 2010, the federal Department of Justice (DOJ) considered issuing regulations under ADA Title III related to website accessibility. However, no changes have been made to date, leaving courts split over whether websites constitute places of public accommodation via the ADA. Dispositive to some jurisdictions’ holdings is whether a website has a nexus to a physical place, which may lend toward viewing the site as a public accommodation. Other jurisdictions provide that …

Endrew's Impact On Twice-Exceptional Students, Catherine A. Bell

William & Mary Law Review

Approximately 2 to 5 percent of the American student population qualifies as both gifted and learning disabled. These students, labeled by educators as “twice-exceptional,” generally demonstrate superior cognitive ability, yet also present profound weaknesses in seemingly basic skills. This disconnect in twice-exceptional students’ abilities produces great difficulties for America’s public schools.

Twice-exceptional students, as a result of their disability, can generally qualify for special education services under the federal Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Once a student qualifies for services under the IDEIA, he is entitled to receive a Free and Appropriate Public Education (FAPE). The …

Accommodating Pregnancy Five Years After Young V. Ups: Where We Are & Where We Should Go, Nicole Buonocore Porter

Faculty Publications

This Article will explore how pregnant employees fare when they are denied accommodations in the workplace that would have allowed them to work safely through their pregnancies. The two most commonly used legal avenues for pregnant plaintiffs are the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA). Successful cases under the ADA were rare until Congress expanded the ADA’s definition of disability in 2008. PDA claims became easier after the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc. This Article will analyze both the body of PDA cases decided since Young, and …

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 …

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, …

Selective Hearing: Communication Barriers In The Court System For Deaf And Hard-Of-Hearing Victims Of Rape Or Sexual Assault, Lauren Oberheim

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

No abstract provided.

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 …