Reasonable Accommodations and the ADA Amendments’ Overlooked Potential

There is “a dearth of precedent” outlining the scope of the Americans with Disabilities Act’s reasonable accommodations provision. The “little precedent” available “remains severely underdeveloped,” “in a state of chaos,” and leaves “many issues unresolved.” Circuit splits abound. For example, courts widely differ in their perspectives about whether the ADA requires employers to permit employees with disabilities to work from home. Similarly, in circumstances in which an employee with a disability can no longer do his or her current job, courts differ on the question of whether the ADA requires the employer to prefer the employee with a disability for vacant positions within the employer’s organization. These and other questions about the scope of the ADA’s reasonable accommodations provision remain unresolved because the first two decades of judicial opinions construing the ADA did not focus on defining the reasonable accommodations provision. Instead, courts concluded that the vast majority of ADA plaintiffs were not “disabled enough” to bring ADA claims. Commentators labeled this phenomenon the “ADA backlash” and speculated that it was fueled by judicial discomfort with the obligations that the ADA’s reasonable accommodations provision placed on employers. Today, the ADA Amendments Act of 2008’s dramatic expansion of the ADA’s protected class requires courts to directly confront the many unresolved questions about the breadth of the ADA’s reasonable accommodations provision. In virtually all cases, courts can no longer avoid delineating the scope of an employer’s accommodations obligation by concluding that the plaintiff is ineligible to bring a reasonable accommodations claim

“Corrective” Surgery and the Americans with Disabilities Act

This Article challenges the assumption that the Americans with Disabilities Act (ADA) requires persons with disabilities to undergo corrective surgery as a precondition to membership in the ADA\u27s protected class. This issue is ripe for discussion because current efforts to amend the ADA, although not focused on the corrective surgery issue, will unsettle the current doctrine underpinning many courts\u27 conclusions that an individual\u27s decision to forgo available medical technology bars her from relief under the ADA. The article aims to make two contributions. First, it argues that the ADA\u27s focus on reshaping cultural responses to disability suggests that individuals need not acquiesce to all available medical efforts to eliminate their disability before they may challenge disability discrimination. Instead, the ADA\u27s conceptual congruence with the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race and gender, suggests that the ADA provides individuals with disabilities the opportunity to argue that their physical differences should be accepted and accommodated rather than erased. Second, it argues that reading the ADA\u27s nondiscrimination mandate to cover persons who decline corrective surgery is consistent with the ADA\u27s text. The Supreme Court\u27s Sutton v. United Air Lines decision, which has contributed to many courts\u27 conclusions that the ADA requires individuals to undergo corrective surgery, in fact prevents courts from excluding persons from the ADA\u27s protected class based on the hypothetical benefits of forgone corrective surgery

Removed Cases and Uninvoked Jurisdictional Grounds

Traditionally understood, a congressional grant of federal subject matter jurisdiction alone does not confer authority on a federal court to hear a case; a party to the case must also affirmatively invoke the applicable jurisdictional ground. In a sharp break from this traditional understanding, federal courts have recently begun to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. Courts adopting this practice have concluded that a district court must retain removed cases that meet the requirements of a congressionally-authorized ground of subject matter jurisdiction even when an arguably antecedent requirement - party invocation of that jurisdictional ground - has not occurred. This article identifies and criticizes this development, coining the phrase mandatory retention to describe federal courts\u27 decision to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. The article recommends that courts equalize plaintiffs\u27 and defendants\u27 abilities to amend their jurisdictional allegations rather than shift responsibility for establishing jurisdiction in removed cases from the defendant to the federal court

Information Famine, Due Process, and the Revised Class Action Rule: When Should Courts Provide a Second Opportunity to Opt Out?

Imagine your friend Alice, a young mother, comes to you for advice. Her baby has severe birth defects, which likely resulted from the morning sickness drug Alice took when she was pregnant. Alice has incurred tremendous hospital bills for her child and is afraid she will not have enough money to pay for the additional surgeries her child will need in the future. After looking over the documents she recently received, you tell her she has a fast-approaching deadline to decide whether to commit herself to accepting a settlement from the company that manufactured the morning sickness drug. Understandably, Alice wants to know how much she would receive under the settlement and is frustrated because the documents she received do not give her this information. To her great astonishment, you explain that the settlement does not yet exist and there is no way to predict how much the settlement might ultimately provide her. Anticipating her next question, you then tell her that she will not be able to learn the settlement\u27s terms before the deadline for accepting or rejecting them. In fact, you know the attorney who represents her has barely begun negotiations with the pharmaceutical company. What you are explaining to Alice is that her claim against the pharmaceutical company has become part of a traditional class action under Federal Rule of Civil Procedure 23(b) (3). The class action allows a court to deal with the large number of similar claims against the pharmaceutical company in a single lawsuit that will more than likely result in a court-approved settlement. If Alice stays in the class action, her claim will be conclusively decided by the class action and she will-hopefully-receive a check from the pharmaceutical company. Alice also has the option to exclude herself from the class, or opt out, if she thinks she can obtain a more favorable settlement or judgment by bringing an individual lawsuit. The catch is that Alice must decide, right now, whether to bind herself to accept the settlement that the class action will ultimately yield or to opt out and go it alone. 1 If she stays in the class action, settlement negotiations will be entirely out of her hands. She will have no authority to reject proposed settlements and will simply receive whatever remedy the class settlement provides. If she feels the settlement is unfair, her recourse will be to become an objector and attempt to persuade the court to withhold its approval of the settlement. Alternatively, she may entreat class counsel to renegotiate with the defendant. Neither avenue of protest is likely to be successful. 2 So, Alice must choose today whether she will opt out of the settlement or accept whatever amount the class action ultimately provides. With a lawyer\u27s help, Alice can roughly estimate how much she could recover in an individual lawsuit, but this information is not sufficient to make an informed opt-out decision because she cannot know the value of the class settlement. The class action might be a better option or it might be much worse. Either way, Alice is stuck. Her choice is a painful real life parallel to the dilemma often posed to game show contestants: whether to accept a prize they have seen or reject it in favor of the unknown prize behind door number two. For Alice, the choice is not simply a gamble for the greater of two windfalls. Rather, her gamble is to pick the avenue that will come closest to covering her debt to the hospital and her child\u27s future surgeries. If she does not opt out of the class action, she commits herself to accepting whatever money the class settlement provides and forgoes her opportunity to pursue an individual lawsuit. This Note contends that, in appropriate circumstances, judges overseeing class litigation should exercise their discretion to provide class members like Alice a second chance to opt out at the time when settlement terms are known

Legal Issues for Treatment Providers and Evaluators

Patients with intellectual disability (ID) can benefit from the full range of mental health services. To ensure that psychiatric assessment, diagnosis and treatment interventions are relevant and effective; individuals with ID should be evaluated and treated within the context of their developmental framework. Behavior should be viewed as a form of communication. This chapter provides a summary of legal issues for ID treatment providers and evaluators

Disability Stigma and Intraclass Discrimination

By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated with different disabilities suggests that such employment decisions are not automatically free from disability-based animus, many courts historically regarded such decisions as immune from ADA scrutiny. They held that the ADA only prohibited discrimination between persons inside and outside the ADA’s protected class. Today, this “no intraclass claims” approach persists in a modified form: Some courts limit intraclass claims to situations in which employers disfavor persons with more biologically severe disabilities vis-à-vis those with less biologically severe disabilities. Although this approach benefits individuals with more biologically severe disabilities, it compounds the disadvantage experienced by persons whose disabilities carry the most significant social stigma, a burden that does not directly correlate with the biological severity of a person’s disability. This Article argues that just as courts’ traditional refusal to permit intraclass disability discrimination claims inappropriately obscured the negative social responses to disabilities the ADA was designed to address, courts’ current emphasis on the biological severity of disabilities departs from the ADA’s core purpose: remedying the stigma and stereotypical assumptions experienced by individuals with disabilities

“Corrective Surgery” and the Americans with Disabilities Act

This Article challenges the assumption that the Americans with Disabilities Act (ADA) requires persons with disabilities to undergo corrective surgery as a precondition to membership in the ADA\u27s protected class. This issue is ripe for discussion because current efforts to amend the ADA, although not focused on the corrective surgery issue, will unsettle the current doctrine underpinning many courts\u27 conclusions that an individual\u27s decision to forgo available medical technology bars her from relief under the ADA. The article aims to make two contributions. First, it argues that the ADA\u27s focus on reshaping cultural responses to disability suggests that individuals need not acquiesce to all available medical efforts to eliminate their disability before they may challenge disability discrimination. Instead, the ADA\u27s conceptual congruence with the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race and gender, suggests that the ADA provides individuals with disabilities the opportunity to argue that their physical differences should be accepted and accommodated rather than erased. Second, it argues that reading the ADA\u27s nondiscrimination mandate to cover persons who decline corrective surgery is consistent with the ADA\u27s text. The Supreme Court\u27s Sutton v. United Air Lines decision, which has contributed to many courts\u27 conclusions that the ADA requires individuals to undergo corrective surgery, in fact prevents courts from excluding persons from the ADA\u27s protected class based on the hypothetical benefits of forgone corrective surgery

Pregnancy as “Disability” and the Amended Americans with Disabilities Act

The recent expansion of the Americans with Disabilities Act’s (ADA) protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect. Drawing on the social model of disability, this Article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social model defines “disability” not as an impairment located within an individual’s body but as the interaction between the individual’s body and her social environment. Within this framework, workers may experience pregnancy, a healthy biological state, as a workplace “disability.” Accordingly, now that workers with temporary physical limitations comparable to pregnancy may receive ADA accommodations, courts should conclude that the ADA’s goal—to reshape the workplace to accommodate previously excluded persons—extends to pregnancy

Information Famine, Due Process, and the Revised Class Action Rule: When Should Courts Provide a Second Opportunity to Opt Out?

Imagine your friend Alice, a young mother, comes to you for advice. Her baby has severe birth defects, which likely resulted from the morning sickness drug Alice took when she was pregnant. Alice has incurred tremendous hospital bills for her child and is afraid she will not have enough money to pay for the additional surgeries her child will need in the future. After looking over the documents she recently received, you tell her she has a fast-approaching deadline to decide whether to commit herself to accepting a settlement from the company that manufactured the morning sickness drug. Understandably, Alice wants to know how much she would receive under the settlement and is frustrated because the documents she received do not give her this information. To her great astonishment, you explain that the settlement does not yet exist and there is no way to predict how much the settlement might ultimately provide her. Anticipating her next question, you then tell her that she will not be able to learn the settlement\u27s terms before the deadline for accepting or rejecting them. In fact, you know the attorney who represents her has barely begun negotiations with the pharmaceutical company. What you are explaining to Alice is that her claim against the pharmaceutical company has become part of a traditional class action under Federal Rule of Civil Procedure 23(b) (3). The class action allows a court to deal with the large number of similar claims against the pharmaceutical company in a single lawsuit that will more than likely result in a court-approved settlement. If Alice stays in the class action, her claim will be conclusively decided by the class action and she will-hopefully-receive a check from the pharmaceutical company. Alice also has the option to exclude herself from the class, or opt out, if she thinks she can obtain a more favorable settlement or judgment by bringing an individual lawsuit. The catch is that Alice must decide, right now, whether to bind herself to accept the settlement that the class action will ultimately yield or to opt out and go it alone. 1 If she stays in the class action, settlement negotiations will be entirely out of her hands. She will have no authority to reject proposed settlements and will simply receive whatever remedy the class settlement provides. If she feels the settlement is unfair, her recourse will be to become an objector and attempt to persuade the court to withhold its approval of the settlement. Alternatively, she may entreat class counsel to renegotiate with the defendant. Neither avenue of protest is likely to be successful. 2 So, Alice must choose today whether she will opt out of the settlement or accept whatever amount the class action ultimately provides. With a lawyer\u27s help, Alice can roughly estimate how much she could recover in an individual lawsuit, but this information is not sufficient to make an informed opt-out decision because she cannot know the value of the class settlement. The class action might be a better option or it might be much worse. Either way, Alice is stuck. Her choice is a painful real life parallel to the dilemma often posed to game show contestants: whether to accept a prize they have seen or reject it in favor of the unknown prize behind door number two. For Alice, the choice is not simply a gamble for the greater of two windfalls. Rather, her gamble is to pick the avenue that will come closest to covering her debt to the hospital and her child\u27s future surgeries. If she does not opt out of the class action, she commits herself to accepting whatever money the class settlement provides and forgoes her opportunity to pursue an individual lawsuit. This Note contends that, in appropriate circumstances, judges overseeing class litigation should exercise their discretion to provide class members like Alice a second chance to opt out at the time when settlement terms are known