Corrective Justice and Title I of the ADA

Several recent studies have shown that employment discrimination plaintiffs filing lawsuits in federal court under Title I of the Americans with Disabilities Act (ADA) win only approximately five percent of their cases. This Article argues that this phenomenon is attributable at least in part to the ADA\u27s very flawed definition of the term disability. It suggests that the current definition be abandoned and that a new approach be adopted, one that would reshape the ADA\u27s protected class so that it more closely resembles a discrete and insular minority, such as those traditionally protected by the civil rights laws. While Title I of the ADA embraces the goals of participatory and distributive justice for all individuals with disabilities, these objectives should be subordinated to the goal of providing corrective justice for those who commonly suffer discrimination. Individuals with disabilities should be redefined as those with mental or physical impairments that have been targeted for systematic discrimination by public policy or widespread private practice. The ADA should further authorize the Equal Employment Opportunity Commission (EEOC) to develop an exclusive list of covered impairments and categories of conditions that are known to be associated with discrimination, such as mental illness, disfigurement, and paralysis. The proposed definition and the list of covered categories would provide much clearer guidance to plaintiffs, employers, and the courts and would significantly enhance the efficacy of Title I of the ADA

Is There A Place for Race As a Legal Concept

What does race mean? The word race is omnipresent in American social, political, and legal discourse. The concept of race is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of race is elusive and has no reliable definition. This article argues that race is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of race can perpetuate prejudices and misconceptions and serve as justification for systematic persecution. Race suggests that human beings can be divided into subspecies, some of which are morally and intellectually inferior to others. The law has important symbolic and expressive value and is often efficacious as a force that shapes public ideology. Consequently, it must undermine the notion that race is a legitimate mechanism by which to categorize human beings. Furthermore, the focus on rigid racial classifications obfuscates political discussion concerning affirmative action, scientific research, and social inequities. When we speak of racial diversity, discrimination, or inequality, it is unclear whether we are referring to color, socio-economic status, continent of origin, or some other factor. Because the term race subsumes so many different ideas in people\u27s minds, it is not a useful platform for social discourse. The article proposes that race be replaced in future statutory and jurisprudential texts by other, more precise terminology, including color, continent of origin, national origin, and descent from ancestors of a particular color, national origin, or religion. Thus, legislators would engage in more careful statutory drafting and determine their legislative goals more precisely. In addition, the law would teach that, at most, the attributes we have called race refer only to superficial characteristics such as skin color or birthplace of one\u27s ancestors, a lesson that could make a valuable contribution to social progress

Legislation and Genetic Discrimination

State legislation addresses genetic discrimination in both employment and health insurance. Thirty-one states have passed laws that address genetic discrimination in employment. Approximately thirteen states prohibit employers from requiring applicants to undergo genetic testing as a condition of employment. Some states have more limited restrictions. Florida prohibits only the screening of applicants for the sickle-cell trait. Wisconsin requires employers to obtain written and informed consent from applicants prior to administering genetic tests, but does not preclude their utilization altogether. Some states establish exceptions that permit genetic testing that is job-related or that is conducted, with the employee\u27s written and informed consent, for the purpose of investigating Worker\u27s Compensation claims or to protect the employee\u27s health by testing for potential work-related medical problems

Mandatory Arbitration: Alternative Dispute Resolution or Coercive Dispute Suppression?

The enforceability of mandatory arbitration policies contained in employment contracts between employees and their direct employers remains an open question, even after the Supreme Court\u27s 1991 decision in Gilmer v. Interstate Johnson Lane Corp. While Gilmer gave effect to a mandatory arbitration clause in a contract between a securities broker and his licensing exchange, the Court noted that the contract at issue was not an ordinary employment contract between employer and employee. The Court declined to decide whether arbitration agreements in ordinary employment contracts are per se enforceable under the Federal Arbitration Act or whether these provisions are exempt from the Act and therefore subject to closer judicial scrutiny. Sharona Hoffman argues that arbitration provisions in ordinary employment contracts are beyond the scope of the Federal Arbitration Act, a conclusion consistent with the approach of the majority of courts of appeal which have considered this issue. To demonstrate the continuing development of the law governing the enforcement of mandatory arbitration policies, the author details a recent case in which the Equal Employment Opportunity Commission challenged and successfully enjoined enforcement of a mandatory arbitration policy. The arbitration policy was vulnerable to attack because its provisions so clearly favored the employer and because pre-existing employees were forced to choose between keeping their jobs or prospectively agreeing to arbitrate nearly all disputes under the terms of the employer\u27s arbitration policy. Hoffman concludes that while voluntary alternative dispute resolution schemes are enforceable, mandatory arbitration policies unilaterally imposed by employers upon employees may be voidable under both statutory law and the common law of contracts

Employing E-Health: The Impact of Electronic Health Records on the Workplace

Electronic Health Record (HER) systems may soon become a fixture in most medical settings. President Obama’s 29 stimulus legislation includes $19 billion to promote their implementation. The sophisticated features and efficiencies of HER systems have the potential to improve health outcomes and enhance patient welfare considerably. However, this emerging technology also poses significant challenges and risks, not the least of which are its workplace impacts. This article provides a first of its kind analysis of the ramifications of HER systems for workers and employers. The potential effects of health information computerization on the workplace are numerous. Employers may obtain and process EHRs for purposes of fitness for duty determinations, reasonable accommodations, workers’ compensation, and payment of medical claims. Digitized records could enable employers to obtain unprecedented amounts of information in response to lawful requests and thus intensify workers’ concerns about privacy and discrimination. At the same time, employers may find EHRs to be cumbersome and difficult to interpret and, if they store health information electronically, may worry about security breaches. HER systems could also affect employers’ insurance costs, impact discovery in litigation, and profoundly affect the work habits of health care providers. This article argues that these concerns can best be addressed by specific changes to the ADA, the HIPAA Privacy and Security Rules, and parallel state laws as well as by technological advances and appropriate federal oversight. As the country transitions to computerization in the medical field, proactive steps must be taken to protect stakeholders in all settings, including the American workplace

Corrective Justice and Title I of the ADA

Several recent studies have shown that employment discrimination plaintiffs filing lawsuits in federal court under Title I of the Americans with Disabilities Act (ADA) win only approximately five percent of their cases. This Article argues that this phenomenon is attributable at least in part to the ADA\u27s very flawed definition of the term disability. It suggests that the current definition be abandoned and that a new approach be adopted, one that would reshape the ADA\u27s protected class so that it more closely resembles a discrete and insular minority, such as those traditionally protected by the civil rights laws. While Title I of the ADA embraces the goals of participatory and distributive justice for all individuals with disabilities, these objectives should be subordinated to the goal of providing corrective justice for those who commonly suffer discrimination. Individuals with disabilities should be redefined as those with mental or physical impairments that have been targeted for systematic discrimination by public policy or widespread private practice. The ADA should further authorize the Equal Employment Opportunity Commission (EEOC) to develop an exclusive list of covered impairments and categories of conditions that are known to be associated with discrimination, such as mental illness, disfigurement, and paralysis. The proposed definition and the list of covered categories would provide much clearer guidance to plaintiffs, employers, and the courts and would significantly enhance the efficacy of Title I of the ADA

The Importance of Immutability in Employment Discrimination Law

This Article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 2009, two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions. The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment discrimination laws. Immutability, however, does not explain why other characteristics that are equally unalterable are excluded from the statutory scheme. Thus, the Article concludes that the employment discrimination laws lack coherence. While the laws extend even to fringe religions, such as white supremacy, they disregard a variety of traits that are fundamental to identity, including sexual orientation, parental status, and others. A focus on the concept of immutability can shed new light on the achievements and limitations of the antidiscrimination mandates and serve as an impetus to provide more comprehensive protection to American workers

Settling the Matter: Does Title I of the ADA Work?

Analysis of cases decided under Title I of the Americans with Disabilities Act (ADA), which addresses employment discrimination, reveals that defendants have consistently prevailed in well over 90% of cases since the ADA\u27s inception. This empirical evidence has led many commentators to conclude that the ADA\u27s Title I has failed to improve workplace conditions for individuals with disabilities. This article attempts to assess the efficacy of Title I through a different lens. It focuses on several data sets that have previously received little attention. It examines Equal Employment Opportunity Commission merit resolutions, lawsuit settlement statistics, and reports concerning reasonable accommodation requests processed by private and public sector employers. These statistics reveal that employers are reasonably responsive to Title I claimants outside of the courthouse setting and that the ADA has in fact improved workplace conditions for employees with disabilities. The more general point made by this article is that the efficacy and impact of statutory mandates cannot be judged based solely on reported court opinions. Rather, data concerning the behavior of those covered by the statutes and extra-judicial dispute resolution are essential to an assessment of whether a statute has achieved the societal changes that it was designed to effect. Consequently, the paper emphasizes the need for more comprehensive empirical studies concerning ADA claim resolutions and outlines a proposal for mandatory reporting of settlement outcomes and the processing of reasonable accommodation requests by employers