Disability Law Commons^™

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying levels of …

The Ohio State University Dispute Resolution In Special Education Symposium Panel, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Advocates, Federal Agencies, And The Education Of Children With Disabilities, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

The aim of this essay, prepared for a symposium on dispute resolution in special education held at The Ohio State University Moritz College of Law in February 2014, is to highlight ways that advocates for children with disabilities can use federal agencies to improve the implementation and enforcement of federal laws protecting children with disabilities in schools—that is, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act as it relates to schools.

One can spend a lot of time engaging with the contemporary public conversation about the law surrounding …

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 …

Sexual Assault And The Meaning Of Power And Authority For Women With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

The sexual assault of persons with mental disabilities (also described as cognitive, intellectual and developmental disabilities) occurs at alarmingly high rates worldwide. These assaults are a form of gender-based violence intersecting with discrimination based on disability. Our research on the treatment of such cases in the Canadian criminal justice system demonstrates the systemic barriers these victims face at the level of both substantive legal doctrine and trial procedure. Relying on feminist legal theory and disability theory, we argue in this paper that abuses of trust and power underlie most sexual assaults of women with mental disabilities. We argue that existing …

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

All Faculty Scholarship

This chapter is a factbook summarizing disability laws, organisations, and statistics in Egypt as of 2014.

Traumatic Brain Injury And The Americans With Disabilities Act: Implications For The Social Work Profession, Dale Margolin Cecka

Law Faculty Publications

The practice of social work has been greatly affected by the Americans with Disabilities Act of 1990 (ADA). Title I of the statute prohibits discrimination against people with disabilities, including the increasing number of workers who are returning to work after a traumatic brain injury (TBI). This article examines the extent to which the ADA protects those with TBI from being harassed, being denied reasonable workplace accommodations, or suffering other adverse actions related to perceived discrimination. To do so, it relies on judicial decisions from U.S. federal courts involving alleged workplace discrimination of this population. Implications for social work practice …

Beyond A Reasonable Doubt: The Constitutionality Of Georgia's Burden Of Proof In Executing The Mentally Retarded, Veronica M. O'Grady

Georgia Law Review

In 2002, the Supreme Court in Atkins v. Virginia announced that executing mentally retarded defendants violates the Constitution. Georgia's standard for determining whether a criminal defendant is mentally retarded-and therefore ineligible for the death penalty- is the highest in the nation, requiring defendants to prove mental retardation to a jury, during the guilt and innocence phase, beyond a reasonable doubt. As in the case of Warren Lee Hill, Jr., this high burden necessarily results in Georgia executing defendants who are almost certainly mentally retarded,arguably violating the Atkins directive. Though once the first state to create a ban on executing the …

Disability, Repressive Regimes, And Health Disparity: Assessing Country Conditions In North Korea, Jae-Chun Won, Janet E. Lord, Michael Ashley Stein, Yosung Song

Articles

This article examines the potential of international human rights standards to account for heightened risk and vulnerability to human rights abuses for persons with disabilities in politically repressive environments. We offer a preliminary assessment of whether and how a disability-cognizant accounting of human rights in repressive regimes can lead to a more credible and comprehensive understanding of disability in such contexts. In so doing, we make the case for a more thorough and thoughtful application of international disability rights standards to better inform human rights investigations, transitional justice approaches, and international criminal law proceedings. To illustrate this methodology, we analyze …

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

Articles

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 …

No Idea What The Future Holds: The Retrospective Evidence Dilemma, Dennis Fan

Faculty Scholarship

The Individuals with Disabilities Education Act’s predecessor established a multilevel administrative and judicial review system for special education decisions, and ever since, the volume of special education cases in federal court has ballooned. Most present cases involve disputes over whether the school district drafted an individualized education program capable of providing a child with disabilities a “free appropriate public education.” But what evidence parties can bring to these disputes is not settled. Circuit courts are split on whether “retrospective evidence” — evidence that arises after the school district drafts the individualized education program — is admissible. This Note addresses present …

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

Articles

No abstract provided.

Should States Ban The Use Of Non-Positive Interventions In Special Education? Re-Examining Positive Behavior Supports Under The Idea, Elizabeth Shaver

Akron Law Faculty Publications

In the 1980s and 1990s, behavior analysts vigorously debated ethical concerns about the use of certain behavioral interventions to address severe behavior of disabled children. In 1997, while that debate was still ongoing, the Individuals with Disabilities Education Act (IDEA) was amended to require educators to consider the use of “positive behavioral interventions and supports,” among other strategies, to address problem behavior that impedes a disabled child’s learning. Since 1997, the “positive behavioral interventions and supports” framework has shifted focus, but IDEA’s language essentially has stayed the same. In addition, some states have enacted poorly-worded statutes or regulations in order …