Disability, Vulnerability, and the Limits of Antidiscrimination

Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination—an approach for which activists fought for twenty years prior to the enactment of the ADA—may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons. I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike. Interpreting Martha Fineman’s theory of vulnerability and applying it for the first time within disability legal studies, I argue that vulnerability to disability and the vulnerabilities disabled individuals experience more acutely than those without disability are both universal and constant. The shared vulnerabilities of disabled and nondisabled individuals suggest the need to restructure completely social institutions to respond to barriers to work and social participation. For practical reasons, I advocate a compromise focused on disabled persons with regard to accommodation for employment and some aspects of social participation: a move away from the standard antidiscrimination approach, which fragments protections, to an approach that treats vulnerability as extending across environments and enables a broader provision of material supports for disabled individuals. In particular, the reasonable accommodation mandate should be expanded with governmental supports to allow disabled workers accommodations both inside and outside the workplace that facilitate their employment. Additionally, a dialogue between employers and employees about accommodating disability should be mandatory, and employees should be entitled to reasonable accommodation that supports their preferred methods of functioning. Given the current legal structures in place, however, recognizing vulnerability to illness as universal suggests the need for universal health care, or treating access to health care as a matter of social welfare rather than disability law

Overcoming Fragmentation in Disability and Health Law

Legal structures respond to human need by defining situations in which specific rights or entitlements attach. Legal protections usually depend on whether an individual is operating within a particular time period, physical space, or other context. The assumption underlying this targeted approach to state response is that the law must make distinctions between individuals that both determine eligibility for legal protections and possible remedies. In litigation, this approach may be perceived as necessary to promote fairness amongst adversarial parties. Targeted approaches may also facilitate desired judicial outcomes, by expanding, contracting, or reframing liability. Laws structuring social welfare programs or other access to material resources may target certain populations to control public expenditures. This Article explores the previously underappreciated problem of legal fragmentation for individuals who are disabled or seriously ill. I examine such fragmentation at the macro- and micro-levels

The Federalism Challenges of Protecting Medical Privacy in Workers\u27 Compensation

Under current law, injured workers face a Hobson’s choice: They may file for workers’ compensation or maintain their medical privacy. The reason for this is that § 164.512(l) of the Health Insurance Portability and Accountability Act’s Privacy Rule (HPR) is widely misinterpreted by courts and legislatures as a wholesale waiver of privacy protections for injured workers. Section 164.512(l) excludes workers’ compensation from federal privacy protections that may frustrate the efficient administration of workers’ compensation claims. As the history and intent behind the HPR indicate, § 164.512(l) is premised on the assumption that states will protect workers’ privacy by creating and implementing their own privacy regimes. An original empirical survey detailed in this Article indicates states have not adequately provided such protections. This Article argues that workers’ compensation programs must be aligned with the federal privacy protections of the HPR and proposes actions for the U.S. Department of Health and Human Services and the states to remedy privacy failures. The Article begins by explaining the misunderstood relationship between the HPR and workers’ compensation generally. It then discusses why § 164.512(l) is misconstrued. The Article suggests that the answer may be rooted in the unclear boundary between constitutionally grounded federal privacy protections and the historic role of states in administering their own workers’ compensation programs and protecting privacy.The Article argues that the protection of privacy in workers’ compensation highlights a unique federalism relationship—what this Article terms “symbiotic” federalism—whereby the federal and state governments are mutually dependent on one another to ensure privacy is protected. Under this reading, workers’ compensation statutes must be interpreted “through,” or in the spirit of the HPR, and contrary law preempted

The Case Against Assisted Suicide Reexamined

In Toni Morrison\u27s acclaimed novel Beloved, Sethe, a runaway slave woman on the brink of capture, gruesomely murders one of her infant children and is halted seconds before killing the second. Cognizant of the approaching men, Sethe\u27s actions are deliberate, swift, confident, and unflinching. Afterwards, she sits erect in the Sheriff\u27s wagon. The reader is left to struggle, situating the horror of the event within the context of the reality of slavery. Was this an act of mercy tQ prevent the suffering Sethe\u27s child would know as a slave? Is loss of autonomy, even rising to the condition of slavery, sufficient justification for ending a life? Was this a desperate attempt to control an unjust situation? These questions of suffering, self-determination, and control are similar to the ones raised within the context of the euthanasia debate today. The two primary justifications for euthanasia are often identified as the prevention of suffering and respect for autonomous choice to end one\u27s life (or, for the incompetent person, respect for the guardian\u27s autonomous choice, presumably supporting the interests of the incompetent individual). Certainly slavery is the extreme example of diminished autonomy, and arguably of suffering. Nevertheless, an intuitive response that Sethe\u27s actions are morally wrong, or an emotive reaction of shock, is understandable

Fragmented Lives: Disability Discrimination and the Role of Environment-Framing

This Article presents a novel theory that courts undermine the purpose of the Americans with Disabilities Act (ADA) by implicitly embracing environment-frames that disfavor disability protections. Courts employ environment-frames at two stages of judicial analysis under the Act: the disability eligibility and remedy stages. In determining whether a plaintiff is in the statutorily protected class, courts typically use a broad environment-frame to assess limitation of a major life activity. The larger the environment-frame, the more likely a court will view an individual as able to perform a major life activity in some portion of her environment and deny her protected class status. By contrast, in the remedy context courts use narrow environment-frames. The smaller the environment-frame (e.g., a cubicle workspace rather than an office building), the greater the likelihood a court will perceive an individual as functional and deny her reasonable accommodation or other modification. Environment-frames thus fragment the human experience of disability, by creating a disconnection between the lived and the legally recognized aspects of disability. The ADA Amendments Act of 2008 (AAA), fails to address these problems. The AAA broadens the definition of disability, but it does not examine or change the environments in which courts assess an individual’s ability to function. I propose a two-part solution to address the problems of environmentframing. First, courts must adopt broad environment-frames for both eligibility and remedy purposes. To determine eligibility, courts should assess individuals with functional impairments in a broad environment that includes workplace, home, and other environments in the civic and social realms. Similarly, individuals requesting accommodation or other modification should have their claims assessed within a broad environment that captures the nature of what they are trying to access, e.g., a place of employment rather than an office space. Second, courts must interpret an individual’s ability to function in a more holistic or complete manner by gaining a better understanding of the effects of impairment throughout a broad environment. To ensure that the ability to function in some portion of a broad environment does not undermine disability status, I suggest a method of assessment similar to the one employed in Social Security disability benefits cases. Despite the Social Security Act’s relatively restrictive definition of disability, courts employ a more favorable assessment of a broad environment that does not limit eligibility for benefits in most cases. A holistic view of functioning within a broad environment would also afford more meaningful reasonable accommodation or other modification

Reconciling autonomy and beneficence in treatment decision-making for animal patients

This article explores how the concept of consent to medical treatment applies in the veterinary context, and aims to evaluate normative justifications for owner consent to treatment of animal patients. We trace the evolution of the test for valid consent in human health decision-making, against a backdrop of increased recognition of the importance of patient rights and a gradual judicial espousal of a doctrine of informed consent grounded in a particular understanding of autonomy. We argue that, notwithstanding the adoption of a similar discourse of informed consent in professional veterinary codes, notions of autonomy and informed consent are not easily transferrable to the veterinary medicine context, given inter alia the tripartite relationship between veterinary professional, owner and animal patient. We suggest that a more appropriate, albeit inexact, analogy may be drawn with paediatric practice which is premised on a similarly tripartite relationship and where decisions must be reached in the best interests of the child. However, acknowledging the legal status of animals as property and how consent to veterinary treatment is predicated on the animal owner’s willingness and ability to pay, we propose that the appropriate response is for veterinary professionals generally to accept the client’s choice, provided this is informed. Yet such client autonomy must be limited where animal welfare concerns exist, so that beneficence continues to play an important role in the veterinary context. We suggest that this ‘middle road’ should be reflected in professional veterinary guidance

The Federalism Challenges of Protecting Medical Privacy in Workers\u27 Compensation

Under current law, injured workers face a Hobson’s choice: They may file for workers’ compensation or maintain their medical privacy. The reason for this is that § 164.512(l) of the Health Insurance Portability and Accountability Act’s Privacy Rule (HPR) is widely misinterpreted by courts and legislatures as a wholesale waiver of privacy protections for injured workers. Section 164.512(l) excludes workers’ compensation from federal privacy protections that may frustrate the efficient administration of workers’ compensation claims. As the history and intent behind the HPR indicate, § 164.512(l) is premised on the assumption that states will protect workers’ privacy by creating and implementing their own privacy regimes. An original empirical survey detailed in this Article indicates states have not adequately provided such protections. This Article argues that workers’ compensation programs must be aligned with the federal privacy protections of the HPR and proposes actions for the U.S. Department of Health and Human Services and the states to remedy privacy failures. The Article begins by explaining the misunderstood relationship between the HPR and workers’ compensation generally. It then discusses why § 164.512(l) is misconstrued. The Article suggests that the answer may be rooted in the unclear boundary between constitutionally grounded federal privacy protections and the historic role of states in administering their own workers’ compensation programs and protecting privacy.The Article argues that the protection of privacy in workers’ compensation highlights a unique federalism relationship—what this Article terms “symbiotic” federalism—whereby the federal and state governments are mutually dependent on one another to ensure privacy is protected. Under this reading, workers’ compensation statutes must be interpreted “through,” or in the spirit of the HPR, and contrary law preempted

Animals as Living Accommodations

This is the first symposium published in a law journal about using nonhuman animals as “living accommodations” for individuals with disabilities. The symposium features the work of both invited participants and speakers chosen from a call for papers issued by The Association of American Law Schools’ (AALS) Section on Animal Law for the AALS 2017 Annual Meeting, which was held in San Francisco, California, in January 2017. This program was co-sponsored by the Sections on Disability Law and Law and Mental Disability

Overcoming Fragmentation in Disability and Health Law

Legal structures respond to human need by defining situations in which specific rights or entitlements attach. Legal protections usually depend on whether an individual is operating within a particular time period, physical space, or other context. The assumption underlying this targeted approach to state response is that the law must make distinctions between individuals that both determine eligibility for legal protections and possible remedies. In litigation, this approach may be perceived as necessary to promote fairness amongst adversarial parties. Targeted approaches may also facilitate desired judicial outcomes, by expanding, contracting, or reframing liability. Laws structuring social welfare programs or other access to material resources may target certain populations to control public expenditures. This Article explores the previously underappreciated problem of legal fragmentation for individuals who are disabled or seriously ill. I examine such fragmentation at the macro- and micro-levels