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

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

This Article is the first to address the challenges of federalism in protecting medical privacy in workers’ compensation after the promulgation of the HPR and to propose legal change. The Article argues that workers’ compensation programs must align with the federal privacy protections of the HPR and proposes actions for the U.S. Department of Health and Human Services (HHS) and states to remedy departures. Part I discusses the complex relationship between the HPR and workers’ compensation. This relationship is often misunderstood by legislatures and courts, compounding the challenges of federalism in this area. Specifically, Part I addresses the HPR’s § 164.512(l) exception, permitted and authorized disclosures under the HPR, and the scope of such disclosures under legal and practice of medicine restrictions. Part II examines preemption challenges under the HPR and health information policy. The HPR’s § 164.512(l) exception and standard preemption provisions are discussed in the context of HHS’s intent to facilitate administrative proceedings, seek a balanced exchange of information between employees and employers, and prevent fraud. Current judicial interpretation of § 164.512(l) stands in stark contrast to these intentions. Courts assume § 164.512(l) is a blanket exclusion from federal privacy protections, rather than an exception that must be read “through,” or interpreted in the spirit of, the HPR. While the HPR allows states to develop privacy protections consistent with the Rule, states fail to fill in the legislative gaps given the limited reach of state constitutional provisions, the routine waiver of statutory privacy protections in the context of workers’ compensation, and the ineffective statutory limitations on scope of PHI disclosure. Part III provides the first published survey of states’ response to protecting workers’ privacy. It examines four areas: scope of PHI disclosure in workers’ compensation proceedings, legality of ex parte communications between parties and treating or examining physicians, requirements for notice of such communications, and requirements for protective orders governing disclosure of PHI. Part IV argues that the gap in legal protection created by § 164.512(l) highlights a federalism relationship best understood as “symbiotic federalism,” whereby different levels of government are mutually dependent. While the HPR exclusion recognizes states’ historic role in administering workers’ compensation programs and assumes that they are in the best position to establish privacy protections to administer claims efficiently, the HPR also serves as a floor for privacy protection. Thus, this Part argues § 164.512(l) affords states opportunities for developing privacy protection but does not authorize legal departures that violate the spirit of the HPR. As a result, HHS must clarify the meaning of § 164.512(l) and encourage states to comply with it. Compliance requires states to create law that imposes meaningful restrictions on PHI disclosures in workers’ compensation proceedings, narrowly tailoring them to what is necessary to administrate claims. If states fail to comply, conflicting state workers’ compensation statutes must be preempted. Additionally, if HHS authorizes ex parte communications, the agency could require notice and protective orders for PHI disclosures

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 Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy and Property

This Article presents a new paradigm, premised on the equal protection principle, for the legal regulation of human interactions with domestic animals: Equal Protection of Animals (EPA). EPA combines the insights of vulnerability theorists with the equal protection principle and capability theory to create a mechanism for recognizing the equal claims of human and nonhuman animals to protections against suffering. Under such an approach, domestic animals—like humans—have claims to food, hydration, shelter, bodily integrity (including avoiding pain), companionship, and the ability to exercise and to engage in natural behaviors of movement. Existing animal welfare and anti-cruelty laws, despite their stated purposes, fail to protect animals adequately. This Article identifies the ontology of the problem as interest-convergence, famously described by Derrick Bell in the desegregation context. The privileged (humans in this case) protect the disadvantaged (animals) only when their interests align. Because humans profit economically and socially from the exploitation of animals, interests often diverge. When this divergence occurs, all protections for animals are placed in jeopardy. Unlike protections for other disadvantaged groups, there is no constitutional or other legal floor guarding the basic liberties of animals. Interest convergence results in what I term “legal gerrymandering for human interest,” or the redrawing of the natural baseline of protections for animals to further human use of animals. In addition to undermining fundamental protections for animals against abuse and suffering, legal gerrymandering creates inconsistencies that violate legal norms of precedent and procedure. Specifically, I address differential treatment of animals of the same legal and species classes as well as different treatment of scientific evidence in animal law as opposed to other legal contexts. While some scholars seek to address the problem of inadequate animal protections, their proposals—treating animals as legal persons or quasi property— suffer two shortcomings. First, under traditional rights- and interests-based reforms, strong human rights or interests in using animals will always trump animal rights or interests, even with regard to avoiding some types of suffering. Second, existing scholarship is entrenched in a paralyzing debate about whether categorizing animals as “persons” instead of “property” will improve their legal protections. EPA does not have these limitations. EPA seeks to maximize the basic capabilities of human and nonhuman animals within the same population, addressing the hierarchy problem that human rights and interests are privileged over those of animals. Human claims to maximize basic capabilities cannot be valued above nonhuman animal claims for the same. Further, EPA directly considers animal capacities without regard to category; there is no need to categorize animals as persons or as a special form of property

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