Disability Law Commons^™

Cyborgs And The Americans With Disabilities Act, Lou Colasanti

Student Scholarship

Medical technology is advancing at lightning speed with the potential to drastically benefit the disabled. These new technologies will result in humans who will use a wide array of assistive technologies and will likely be labelled as Cyborgs. Assistive technologies such as self-driving cars, robots, computer chip implants, insertable medical hardware, and exoskeletons are already well developed. The day is rapidly approaching when Cyborgs as a class will be large and influential. Critically, the Americans with Disabilities Act (ADA), the judges tasked with enforcing this legislation, and the legislature itself are all ill equipped to handle the speed of this …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Catholic University Law Review

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

Understanding Terminations For “Disability-Caused Misconduct” As Failures To Provide Reasonable Accommodation, Michael S. Verdichizzi

Notre Dame Law Review

The Note proceeds as follows. Part I provides a primer on the sorts of disability discrimination the ADA prohibits, with a special focus on the three types of claims one may bring under the act: disparate treatment, disparate impact, and failure to accommodate. Part II explores the current state of the misconduct issue in the disability discrimination context and demonstrates the circuit split by way of case analyses. Part III presents the principal argument of this Note, that uncontroversial canons of statutory interpretation demonstrate the erroneousness of the majority view, that the majority view hinders the ADA’s objective of equal …

This Aggression Will Not Stand, Schools: The Need For Federal Legislation Protecting Bullied Students With Disabilities, Russell A. Vogel

Touro Law Review

A boy with Autism comes home from school, visibly upset. His parents ask him why, and he responds that nobody in his class likes him. To his parents’ horror, they learn that their son’s teacher encouraged a class discussion about why they dislike their son. When the boy’s parents complain to the school about this issue, school administrators brush it aside. The next day, students sitting near the boy move their desks away from him and taunt him for the way he acts every time he tries to socialize with them. The boy then refuses to go to school each …

How The Americans With Disabilities Act Of 1990 Continues To Fail The Deaf And Hard Of Hearing, Maria Nowak

Mitchell Hamline Law Review

No abstract provided.

Bringing The Ada Out Of The Dark Ages: Social Media Websites Should Be Required To Meet The Accessibility Requirements Of The Americans With Disabilities Act, Olivia Garcia

University of San Francisco Law Review

No abstract provided.

How To Compromise On Saving The Most Lives: A Commentary On Hellman And Nicholson, “Rationing And Disability”, David Wasserman

Washington and Lee Law Review Online

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Rationing And Disability: The Civil Rights And Wrongs Of State Triage Protocols, Deborah Hellman, Kate M. Nicholson

Washington and Lee Law Review

The COVID-19 pandemic and the unprecedented natural disasters of 2020 remind us of the importance of emergency preparedness. This Article contributes to our legal and ethical readiness by examining state “Crisis Standards of Care,” which are the standards that determine how medical resources are allocated in times of scarcity. The Article identifies a flaw in the policy choice at the heart of the standards: the standards focus on saving as many lives as possible but, in so doing, will predictably disadvantage the ability of people with disabilities and racial minorities to access life-saving care.

To date, scholarly attention has focused …

The Deliberate Indifference Standard: A Broken Promise To Protect And Serve The Mentally Ill, Katherine R. Carroll

Touro Law Review

No abstract provided.

Food Allergy Bullying As Disability Harassment: Holding Schools Accountable, D'Andra Millsap Shu

University of Colorado Law Review

Millions of American schoolchildren of all ages suffer from food allergies, and increasingly, bullies target these children because of their allergies. If a bully exposes a victim to an allergen, food allergy bullying can sicken or kill within minutes. Food allergy bullying is already responsible for many hospitalizations and at least one death. Most food allergy bullying happens at school, and schools play a crucial part in addressing and preventing bullying. All too often, though, schools fail to take appropriate action. Sovereign immunity and other obstacles insulate public schools from liability in many instances, but federal disability law may provide …

Dissing Ability, Tory L. Lucas

Lewis & Clark Law Review

People with disabilities have historically endured the horrors of exclusion and elimination because America has incessantly fixated on disability without seeing ability. To correct a disabling view of people with disabilities, this Article prescribes a paradigm shift that permanently redirects the focus from disability to ability. If America achieves this hopeful vision to no longer diss—or disrespect—ability, then people with disabilities will enjoy equal access to equal opportunity.

Qualified Does Not Mean Over Qualified: The Ada’S Accommodation Of Last Resort Should Not Be A Competition!, Dana Ortiz-Tulla

Touro Law Review

No abstract provided.

Covid-19 Employee Health Checks, Remote Work, And Disability Law, Elizabeth Pendo

All Faculty Scholarship

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities, about 61 million individuals in the U.S. The law’s protections in the workplace are especially important during COVID-19, which has worsened pre-existing disparities experienced by people with disabilities. The ADA also applies to new strategies to reduce the risk of COVID-19 infection in the workplace. This Chapter will focus on two strategies that impact individuals with and without disabilities – employee health screening, testing and vaccination policies, and new or expanded remote work programs.

Accessible Websites And Mobile Applications Under The Ada: The Lack Of Legal Guidelines And What This Means For Businesses And Their Customers, Josephine Meyer

Seattle University Law Review Online

No abstract provided.

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

All Faculty Scholarship

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.
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Enforcement Of The Americans With Disabilities Act: Remedying “Abusive” Litigation While Strengthening Disability Rights, Evelyn Clark

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the Americans with Disabilities Act and the private litigation used to enforce compliance. While the ADA was designed to be enforced by private citizens, many have called for reform to limit what they see as “abusive” litigants. This Note focuses on (1) the perceived problem of vexatious litigants abusing the ADA and its state counterparts to benefit monetarily, (2) the attempted solutions on both a state and federal level, and (3) recommended solutions that focus on protecting the rights of individuals with disabilities while limiting abusive litigation meant to extort businesses.

Internet Architecture And Disability, Blake Reid

Indiana Law Journal

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

Student Note: Finding The Positive In A Positive Drug Test: How Narrowing The Definition Of An Individualized Pre-Employment Assessment Under The Ada Can Encourage Recovery From Opioid Dependence, Sarah Ferraro

Belmont Health Law Journal

This note will address the disparities in the way courts have analyzed the direct threat exception to ADA protection, and why a uniform application of the exception is crucial to both employers and those in recovery. Part I examines how opioids have devolved from an effective pain management tool to a national enemy. This section will answer common questions about why opioids are so addictive and why doctors prescribe them in the first place. It also addresses the scope of the ADA and the direct threat exception used to justify a decision not to hire a prescription drug user, as …

Disability Rights Past, Present And Future: A Roadmap For Disability Rights, Marcy Karin, Lara Bollinger

University of the District of Columbia Law Review

The Americans with Disabilities Act (“ADA”)2 “was and is all about civil rights.”3 Enacted in 1990, its goal was to prohibit discrimination based on disability across society, from employment to places of public accommodation and government services. As the byproduct of bipartisan support and significant advocacy and leadership by members and allies of the disability community, there were high hopes that the ADA would live up to its goal. Unfortunately, that reality never came to pass for many individuals with disabilities. Instead, a line of Supreme Court decisions in 1999 and 2002 imposed increasingly narrow interpretations of the law’s core …

Covid-19 And Public Accommodations Under The Americans With Disabilities Act: Getting Americans Safely Back To Restaurants, Theaters, Gyms, And “Normal”, Frank Griffin M.D., J.D.

SLU Law Journal Online

THIS IS A PRELIMINARY EXPEDITED VERSION OF THE OFFICIAL ARTICLE TO BE ORIGINALLY PUBLISHED IN SAINT LOUIS UNIVERSITY LAW JOURNAL VOLUME 65 NUMBER 2

COVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and …

Virtual Access: A New Framework For Disability And Human Flourishing In An Online World, John D. Inazu, Johanna Smith

Scholarship@WashULaw

While many commentators have noted the wealth and class disparities that emerge from the digital divide, disability adds another important lens through which to consider questions of access and equity. Online accessibility for disabled people has fallen prey to the same assumptions and impediments that led to the Americans with Disabilities Act (“ADA”) addressing disability access in the offline world. Addressing these shortcomings requires a significant conceptual shift in our understanding of “access,” even among disabled people. Offline, the sidewalk or doorway hindered access to those who needed assistance walking or moving. Today’s virtual sidewalks and doorways complicate access in …

A Primer On Disability Discrimination In Higher Education, Laura Rothstein

Brandeis School of Law Faculty Scholarship

This article provides an overview of key issues and a focus on some of the most significant and important recent developments that should be given a high priority by university attorneys and higher education administrators and policymakers. It emphasizes the role that administrators responsible for facilitating or coordinating disability services on campus can play in ensuring that faculty members, staff members, and other administrators have the knowledge and tools to ensure access and also to avoid liability to the institution. Major changes in the Trump administration and Congress may signal changes that could affect disability discrimination issues on campus. These …

Classifying Wcag 2.0 Guidelines As The Legal Standard For Websites Under Title Iii Of The Americans With Disabilities Act, Toni Cannady

Catholic University Law Review

Over the last two decades, technological advancements have driven significant changes in society that have led to more productivity, more convenience, and more accessibility. In particular, websites serve as a platform for consumers to engage in commerce. Under Title III of the Americans with Disabilities Act, public accommodations are prohibited from discriminating on the basis of disability. Nonetheless, to date, the law “has failed to keep pace with these technological advances” creating profound effects for individuals with disabilities and businesses alike. However, in the absence of clearly defined standards, lawsuits by plaintiffs have fueled a new body of judicially made …

Inaccessible Websites Are Discriminating Against The Blind: Why Courts, Websites, And The Blind Are Looking To The Department Of Justice For Guidance, Elizabeth Sheerin

St. John's Law Review

(Excerpt)

This Note argues that Title III of the ADA should extend to websites and mobile applications as “places of public accommodation” and suggests a framework to determine which accommodations should be adopted to make websites accessible to people with visual disabilities. Specifically, it calls on Congress and the DOJ to fix this hole in the law and ensure the Act protects all persons with disabilities, as it was intended to. Part I will introduce the ADA, including its legislative history and amendments, and then will describe the standards private agencies have developed to make the Internet accessible to those …

Would The Ada Pass Today?: Disability Rights In An Age Of Partisan Polarization, Laura Rothstein

Brandeis School of Law Faculty Scholarship

The Americans with Disabilities Act of 1990 (ADA) was the most significant civil rights legislation enacted since the Civil Rights Act of 1964. It provided comprehensive protection against discrimination for individuals with disabilities in employment, public accommodations, and public services. It built on § 504 of the Rehabilitation Act that provided these protections only to programs receiving federal financial assistance. It afforded broad access to those individuals who had benefitted from the 1975 Individuals with Disabilities Education Act. This complex and far-reaching legislation was made possible by a confluence of timing and the right people at the right place at …

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

Touro Law Review

No abstract provided.

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

All Faculty Scholarship

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

Foreword To The Symposium: Current Issues In Disability Rights Law, Samuel J. Levine

Touro Law Review

No abstract provided.

The Future Of Disability Rights Protections For Transgender People, Kevin M. Barry, Jennifer L. Levi

Touro Law Review

No abstract provided.