Disability Law Commons^™

Avoiding Pandora’S Box: Why Federal Nondiscrimination Statutes Do Not Prohibit Health Insurance Coverage Exclusions Of Sex-Rejecting Procedures, Rachel N. Morrison

Catholic University Law Review

There is increasing litigation over whether employer-provided health insurance and state Medicaid plans can exclude coverage of procedures for “gender transitions.” Plaintiffs claim that gender-transition coverage exclusions violate the Equal Protection Clause of the Fourteenth Amendment and federal nondiscrimination statutes. While Fourteenth Amendment claims should be foreclosed by the Supreme Court’s holding in Geduldig v. Aiello, nondiscrimination claims require a separate analysis.

This article shows the proper analysis for whether coverage exclusions of transition procedures violate federal nondiscrimination statutes. Looking to the history of coverage exclusion claims, Part I traces sex and pregnancy discrimination claims challenging coverage exclusions of …

Blame It On The Algorithm (But Sue Them Both): Joint Enterprise And Agency In Ai-Driven Hiring Discrimination, Khushi Palan

American University Business Law Review

The proliferation of artificial intelligence (AI) in hiring processes has created a significant accountability gap in employment discrimination law. While federal statutes like Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act focus on finding liability for traditional employers, they fail to adequately address the unique role of third-party AI vendors whose algorithms often drive discriminatory outcomes. This Comment examines the emerging legal landscape through the lens of Mobley v. Workday, where the District Court for the Northern District of California recognized that AI vendors can function as “agents” of …

Algorithmic Bias In Hiring: Amending Title Vii To Prohibit Ai Discrimination, Michael H. Leroy

Journal of Legislation

I propose amendments to Title VII to address discriminatory hiring related to AI technologies. Section 703(c)’s definition of an “employment agency” should be modified to include “any person who uses artificial intelligence” to procure employees. I also propose a new definition in section 703 that incorporates the expansive definition of AI in 15 U.S.C. 9401(3). These small changes would make AI hiring firms more responsible for discriminatory screening and selection of job applicants, and better protect applicants who are adversely selected by sex, race, disability and other protected characteristics.

Menstruation, Menopause, And The Pregnant Workers Fairness Act, Marcy L. Karin, Deborah Widiss

Articles by Maurer Faculty

Some workplaces are extraordinarily inhospitable to menstruators, especially those in low-wage jobs. Workers have been denied restroom breaks and then harassed or fired after menstrual blood leaked onto their clothes or their employer’s property. Employers routinely refuse to provide accommodations for menopause symptoms or time off for menstruation-related medical care. The failure to support menstruators is a significant barrier to ensuring workplace equality. This Article explains how federal laws, including the landmark Pregnant Workers Fairness Act (PWFA), can—and should—be interpreted to help address these inequities. PWFA requires employers to provide “reasonable accommodations” for “pregnancy, childbirth, or related medical conditions.” Menstruation …

Beyond Title Vii: Litigating Harassment By Nonemployees Under The Ada And Adea, Kate Bradley

Washington Law Review

Employees in the United States are protected from unlawful harassment that rises to the level of a “hostile work environment.” Federal circuits recognize that employers could be liable under Title VII when their employees experience hostile work environments because of harassment from nonemployees. However, outside of Title VII, not all federal circuits have recognized that the Americans with Disabilities Act of 1990 (ADA) and Age Discrimination in Employment Act of 1967 (ADEA) protect employees from hostile work environments.

As a result, employees are vulnerable with respect to age and disability-based harassment. This Comment argues that all federal circuits should allow …

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 …

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 …

Unilateral Burdens And Third-Party Harms: Abortion Conscience Laws As Policy Outliers, Nadia Sawicki

Indiana Law Journal

Most conscience laws establish nearly absolute protections for health care providers unwilling to participate in abortion. Providers’ rights to refuse—and relatedly, their immunity from civil liability, employment discrimination, and other adverse consequences—are often unqualified, even in situations where patients are likely to be harmed. These laws impose unilateral burdens on third parties in an effort to protect the rights of conscientious refusers. As such, they are outliers in the universe of federal and state anti-discrimination and religious freedom statutes, all of which strike a more even balance between individual rights and the prevention of harm to third parties. This Article …

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.

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

Touro Law Review

No abstract provided.

The Application Of Title Ii Of The Americans With Disabilities Act To Employment Discrimination: Why The Circuits Have Gotten It Wrong, William Brooks

Touro Law Review

No abstract provided.

The Substantially Impaired Sex, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In making the case for increased attention to and expanded legal remedies for disabled women who experience labor market discrimination, this Article proceeds as follows: Part I reviews previous work on intersectional discrimination, which, heretofore, has focused almost exclusively on the experience of African-American women. Part II examines the EEOC data, which details the universe of ADA charges filed with the agency from 2000 to 2009. The EEOC data make clear how men's and women's disability charges differ, and the data also provide a great deal of evidence as to why men's and women's disability charges differ. Part III considers …

Towards Reasonable: The Rise Of State Pregnancy Accommodation Laws, Stephanie A. Pisko

Michigan Journal of Gender & Law

In light of the recent Supreme Court decision Young v. UPS, pregnancy accommodation in the workplace is once again at the forefront of employment law. Pregnancy is not considered a disability under the ADA, nor is it within the scope of Title VII protections, but states are passing their own pregnancy accommodation laws. These laws will affect employers and employees alike, but exactly how is uncertain. Perhaps the most natural (and obvious) result of the explosion of state pregnancy accommodation laws will be a federal law, or an amendment to the ADA categorizing pregnancy as a disability. But there …

Title Vii Discrimination Actions: Applicable Or Inapplicable To The Partnership Decision? Hishon V. King & Spalding, Gus Yogmour

Akron Law Review

An underlying premise of a partnership is that it is a strictly voluntary association between two or more persons for a business purpose. The concept that a partnership can be forced against its will to accept another individual into the organization as a partner is repugnant to the underlying premise of voluntariness of association. One purpose of Title VII of The Civil Rights Act of 1964 is to prohibit discrimination on the basis of sex and to place men and women on an equal footing. In order for this equal footing to exist, an individual's capabilities can be the only …

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

Disparate Impact And Pregnancy: Title Vii's Other Accommodation Requirement, Camille Hébert

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Discrimination Cases Of The 2002 Term, Eileen Kaufman

Touro Law Review

No abstract provided.

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy

Faculty Articles and Other Publications

This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

All Faculty Scholarship

Proceedings of the 2004 Annual Meeting, Association of American Law Schools, Sections on Employee Benefits and Employment Discrimination. Panel includes: Professor Colleen E. Medill; Professor Helen Norton; Eve Gartner, Esq.; and Professor Elizabeth Pendo.

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

All Faculty Scholarship

Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit …

Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday

Michigan Law Review

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …

Reasonable Accommodation Of Workplace Disabilities, Stewart J. Schwab, Steven L. Willborn

Cornell Law Faculty Publications

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa A. Eichhorn

Faculty Publications

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …

Deference And Disability Discrimination, Rebecca Hanner White

Michigan Law Review

For thirty-five years, the civil rights community has paid scant attention to administrative law principles. Those interested in advancing on-the-job equality for this country's working men and women (or in preserving employer autonomy vis-a-vis federal encroachment) have all but ignored what many consider the arcane technicalities of administrative law. This state of affairs is strange when one considers that administration and enforcement of each of our major federal laws outlawing employment discrimination have been confided to an administrative agency, the Equal Employment Opportunity Commission ("EEOC"). The EEOC, however, has historically been given short shrift by litigants and by the judiciary. …

Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman

Scholarly Works

In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There was an …

Threshold Barriers To Title 1 And Title Iii Of The Americans With Disabilities Act: Discrimination Against Mental Illness In Long-Term Disability Benefits, Nancy Lee Firak

Journal of Law and Health

Any discussion of the ADA presents an organizational challenge not only because of the complex structure of the Act itself, but also because the ADA implicates other complex federal remedial schemes such as the Employee Retirement Income Security Act (ERISA) and the Rehabilitation Act. The social policy implications of the issues under discussion in this article are complex and at times even contradictory, as is perhaps unavoidable. Part II outlines a typical case in which the employer provided inferior long-term disability benefits to those with mental disabilities. The purpose of Part II is to provide the reader with a map …

Handling Difficult Issues Under The Family Medical Leave Act, Helen Norton

Publications

No abstract provided.