Disability Law Commons^™

Mixed Signals: What Can We Expect From The Supreme Court In This Post-Ada Amendments Act Era?, Nicole Buonocore Porter

Faculty Publications

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was intended to breathe new life into the ADA after the courts, especially the Supreme Court, drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA.

This abstract has been taken from the …

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Faculty Publications

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for …

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 …

Section 5: Civil Rights And Liberties, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Special Treatment Stigma After The Ada Amendments Act, Nicole Buonocore Porter

Faculty Publications

This Article explores a unique source of stigma suffered by individuals with disabilities in the workplace. Instead of focusing on those with the most stigmatizing disabilities, I focus on those individuals who have disabilities that are not perceived as very severe, yet they still suffer stigma. These individuals are stigmatized because of the special treatment they receive (or are perceived as receiving) through workplace accommodations provided pursuant to the Americans with Disabilities Act (ADA). In prior work, I have called this phenomenon "special treatment stigma, " the harm that arises from receiving special treatment in the workplace, especially when coworkers …

Accommodating Everyone, Nicole Buonocore Porter

Faculty Publications

This Article attempts to eliminate “special treatment stigma” by accommodating everyone. Special treatment stigma occurs when some employees (usually individuals with disabilities and workers with caregiving responsibilities) are provided with accommodations in the workplace. This receipt of “special treatment” causes employers and coworkers to resent these employees. This Article argues that the best way to ameliorate the stigma that accompanies special treatment in the workplace is to accommodate everyone through a universal accommodation mandate. This mandate would require employers to accommodate all employees who request an accommodation in the workplace, regardless of the reason for the accommodation. As long as …

The Costs Of Easy Victory, Michael E. Waterstone

William & Mary Law Review

Studies of law and social change often focus on areas of intense conflict, including abortion, gun rights, and various issues around race, gender, and sexual orientation. Each of these has entered the culture wars, inspiring fierce resistance and organized countermovements. A reasonable assumption might be that social change in less controversial areas might be easier. In this Article, I suggest that it is not that simple. Using the disability rights movement, I demonstrate how flying under the radar leads to unappreciated obstacles. The disability rights movement had a relatively easy path to the passage of the Americans with Disabilities Act …

Withdrawn Accommodations, Nicole Buonocore Porter

Faculty Publications

This Article addresses a phenomenon that often arises in reasonable accommodation cases under the Americans with Disabilities Act, a phenomenon I call “withdrawn accommodations.” This occurs when an employer has agreed to provide an accommodation to an employee with a disability and then later withdraws the accommodation. Employers might withdraw accommodations for a couple of reasons. First, an employer might withdraw an accommodation because it finds out that the employee’s need for the accommodation is permanent, rather than temporary, as the employer might have first believed. Second, a new supervisor might arrive on the scene, and decide to withdraw a …

Self-Perception Of Disability And Prospects For Employment Among U.S. Veterans, Christopher L. Griffin Jr., Michael Ashley Stein

Faculty Publications

No abstract provided.

What Disability Means To Me: When The Personal And Professional Collide, Nicole Buonocore Porter

Faculty Publications

No abstract provided.

The Difficulty Accommodating Health Care Workers, Nicole Buonocore Porter

Faculty Publications

I argue that accommodating health care workers is difficult, perhaps more difficult than accommodating other workers, and I explain why. First, in Part II, I will describe the characteristics of health care jobs that make those jobs difficult for individuals with disabilities. These characteristics include: (1) most health care jobs are physically rigorous, often involving heavy lifting, pushing, and walking and standing for long periods of time; (2) most health care jobs involve long hours and/or shift work; and (3) the majority of jobs in the health care industry are safety-sensitive positions, with life or death often hanging in the …

Mitigating The Impact Of Title Vii's New Retaliation Standard: The Americans With Disabilities Act After University Of Texas Southwestern Medical Center V. Nassar, August T. Johannsen

William & Mary Law Review

No abstract provided.

Mutual Marginalization: Individuals With Disabilities And Workers With Caregiving Responsibilities, Nicole Buonocore 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 …

Disability, Development, And Human Rights: A Mandate And Framework For International Financial Institutions, Michael Ashley Stein, Penelope J. S. Stein

Faculty Publications

No abstract provided.

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Faculty Publications

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.

The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …

Caregiver Conundrum Redux: The Entrenchment Of Structural Norms, Nicole Buonocore Porter

Faculty Publications

Scholars and feminists (and feminist scholars) have been debating ways to ameliorate the work-family conflict for several decades. For some of us writing in this area, it seems as if the debate is endless and ineradicable. Unfortunately, this Article does not end the debate with some brilliant solution. Instead, I attempt to explain why the "caregiver conundrum" is so unwieldy and unyielding. The reason, I argue, is because of the entrenchment of structural norms in the workplace. By structural norms, I am referring to employers' rules and practices regarding hours, shifts, schedules, attendance, leaves of absence, etc.--basically, when and where …

The New Ada Backlash, Nicole Buonocore Porter

Faculty Publications

[T]his paper explores whether courts are using the reasonable accommodation provision or the qualified individual inquiry to limit the number of individuals entitled to the special protection of the ADA...

This paper will proceed in five parts. Part II provides a brief history of the ADA, both of its structure and legislative history. It then proceeds to a discussion of the major Supreme Court cases that dramatically narrowed the coverage of the ADA through a narrow interpretation of what it means to be an individual with a disability. I will also discuss why courts may have narrowly construed the statute. …

A Defining Moment: A Review Of Disability & Equity At Work, Why Achieving Positive Employment Outcomes For Individuals With Disabilities Requires A Universal Definition Of Disability, Nicole Buonocore Porter

Faculty Publications

This book, Disability & Equity at Work, describes its goal as "to discuss factors contributing to disabled persons' inequality at work and to offer proposals for leveling this uneven playing field." The book is an interdisciplinary, international review of the laws, policies, initiatives, and studies regarding the employment situation of individuals with disabilities. It is a compilation of fifteen different chapters by different authors, which cover a wide variety of subject matters. Some chapters focus on low- and middle-income countries, where individuals with disabilities often have low employment and high poverty rates. And some chapters focus on problems that …

MartinIzing Title I Of The Americans With Disabilities Act, Nicole Buonocore 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 …

Doubly Protected And Doubly Discriminated: The Paradox Of Women With Disabilities After Conflict, Kathleen Cornelsen

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

No abstract provided.

Disability Cause Lawyers, Michael E. Waterstone, Michael Ashley Stein, David B. Wilkins

William & Mary Law Review

There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases. This Article responds to these scholarly voids. …

Assessing Post-Ada Employment: Some Econometric Evidence And Policy Considerations, John J. Donohue Iii, Michael Ashley Stein, Christopher L. Griffin Jr., Sascha Becker

Faculty Publications

This study looks at whether the Americans with Disabilities Act of 1990 (ADA) helped or hurt job opportunities for people with disabilities. The researchers used long-term survey data following the same individuals from 1981 to 1996 to see changes in work hours, yearly pay, and hourly wages. For the larger group studied, employment for people with disabilities dropped after the ADA took effect, but their pay compared to other workers stayed about the same. For a smaller group of workers tracked every year, job levels did not show the same drop, though wages for people with disabilities were already falling …

Enabling Refugee And Idp Law And Policy: Implications Of The U.N. Disability Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord

Faculty Publications

No abstract provided.

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

China And Disability Rights, Michael Ashley Stein

Faculty Publications

No abstract provided.

Monitoring The Convention On The Rights Of Persons With Disabilities: Innovations, Lost Opportunities, And Future Potential, Michael Ashley Stein, Janet E. Lord

Faculty Publications

As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) protects some 650 million persons with disabilities. The CRPD also has an opportunity to progressively reconfigure the structure and process of human rights oversight. While the overall framework for monitoring and implementing the CRPD resembles existing core human rights instruments, it has some notable features. The CPRD Committee is endowed with several innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more …

Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins

Faculty Publications

No abstract provided.

Health Care And The Un Disability Rights Convention, Michael Ashley Stein, Penelope J S Stein, Dorothy Weiss, Raymond Lang

Popular Media

No abstract provided.

Ratify The Un Disability Treaty, Michael Ashley Stein, Janet E. Lord

Popular Media

No abstract provided.

Social Rights And The Relational Value Of The Rights To Participate In Sport, Recreation And Play, Janet E. Lord, Michael Ashley Stein

Faculty Publications

No abstract provided.