Intersectional Cohorts, Dis/ability, and Class Actions

This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as disabled.The Article disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law’s focus on individual claims. It asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because one major goal of disability law is to remove social barriers to the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this Article shows that group-based claims like those of the Compton students are a valid use of the class certification power.This Article’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” The members of intersectional cohorts share similar self-identities, attributed identities, and identity performances to such extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level theory of each individual or essentializing identities through a macro-level theory of broad social groups.Understanding poor Black and Latinx students in violence-torn neighborhoods as an intersectional cohort shows they have sufficiently shared experiences and responses to their environment to presume they constitute a class that should be certified in the Compton suit and in other similar lawsuits. This approach is supported by the scientific research on Adverse Childhood Experiences (ACEs) and their relationship to complex trauma and disability. We hope this analysis will serve as a model for future theoretical and applied analysis of intersectional cohorts, especially with respect to dis/abilities

Reconsidering Legal Regulation of Race, Sex, and Sexual Orientation

Reviewing Sonu Bedi, Beyond Race, Sex and Sexual Orientation: Legal Equality without Identity; Devon W. Carbodo and Mitu Gulati, Acting White?: Rethinking Race in Post-Racial America; Ruthann Robson, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes; and John D. Skrentny, After Civil Rights: Racial Realism in the New American Workplace

Subsidized Egg Freezing in Employment: Autonomy, Coercion, or Discrimination?

In 2014, Apple and Facebook announced that they would provide up to $20,000 for female employees to freeze their eggs as an employment benefit. These announcements raised mixed reviews. Some applauded the decision because they believe that egg freezing may offer to women more control over their reproductive choices. Others argued that the new benefit sends the wrong message to women and that encouraging good parenting by giving better parental leave and child care policies would be more beneficial to families. Others were concerned that this “benefit” applies only to professional or managerial-class women, but may not be helpful to women in working class jobs. The differing initial responses only begin to demonstrate how complex the decision to offer egg freezing as an employment benefit is and should be. Employers’ subsidies of egg freezing have broad social implications. Subsidies raise issues about the distribution of benefits to different classes of employees and which types of benefits are better for women, men, and families of diverse classes. On an even larger scale, studying egg freezing subsidies provides a lens into the “brave new world” of the modern corporation and the way it shapes society through workplace norms and expectations. Much of contemporary corporate America reinforces a gendered structure of society and the family that links masculinity to the breadwinner ideal. While egg freezing may be an attempt to attract women to high-level jobs, it does not break down these gendered structures. In fact, it reinforces the masculine worker ideal by encouraging all-consuming loyalty and work hours from its management employees and sending the message to women and men that in order to succeed they must treat work as their primary obligation and arrange their personal and family responsibilities around work even to the extent of changing their own biology. This article attempts to anticipate the issues that egg freezing as an employment benefit will raise for society, employees, and employers. It concludes that rather than using egg freezing or other similar measures to attract female management employees, workplaces should be transformed to respect women, men, family, and personal values. The goal should not be to encourage employees to postpone childbearing by engaging in extraordinary measures to change their hormones but to recognize that all human beings have needs outside of the workplace