Hostile Environment Actions, Title VII, and the ADA: The Limits of the Copy-and-Paste Function

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article instead suggests an analysis of ADA hostile environment actions that is consistent with the specific combination of theories underlying that statute

Old Habits: Sister Bernadette and the Potential Revival of Sentence Diagramming in Written Legal Advocacy

Given the rise of e-filing and of software that makes it easier than ever to create images and insert them into documents, the nearly lost art of sentence diagramming may be due for a revival in written legal advocacy. This article posits that while sentence diagrams can indeed, in a limited set of cases, add to the persuasive force of a statutory-interpretation argument, the diagrams themselves are less compelling than attorneys may believe them to be, and diagrams cannot elucidate all types of interpretive issues. Like an analogy, a sentence diagram can illustrate an argument aptly — or ineptly — and counsel’s ability to come up with an illustrative analogy or a diagram is no guarantee that the illustrated argument has merit. This article first explains the nature of sentence diagrams and then discusses their potential utility in briefs. It then describes two cases where the inclusion of diagrams in briefs was less useful, or even counterproductive. In closing, it offers some concrete advice to attorneys on the use of sentence diagrams in written legal advocacy

Writing in the Legal Academy: A Dangerous Supplement

This article explores the relationship of writing and speech in the legal academy through the lens of an ancient, embedded hierarchy that favors speech over writing. The article borrows the philosophical notion of the dangerous supplement to describe the role of writing in this hierarchy and argues that law schools have long seen only one aspect of this role, viewing writing as a dangerous curricular supplement, but failing to see why it is necessary to the existence of the remainder of the curriculum. This article examines the lurking distrust that surrounds writing in the legal academy. Part I of this article traces the historical roots of the speech/writing hierarchy and its insinuation into the legal curriculum. Part II discusses how deans and faculty in United States law schools have responded to and reinforced this hierarchy in their treatment of legal writing programs. This Part then uses the notion of the dangerous supplement to critique the hierarchy upon which institutional decisions in this area have been based. Part III analyzes the effect of the speech/writing hierarchy on writing pedagogy, specifically addressing common criticisms of legal writing as students experience it in the legal academy. Part IV looks to the future, assessing the possibility and ramifications of breaking out of the hierarchy. Overall, by exposing the deception embedded in the hierarchy, this article attempts to explain why the legal academy needs the dangerous supplement of legal writing

Major Litigation Activities Regarding Major Life Activities: The Failure of the Disability Definition in the Americans with Disabilities Act of 1990

The passage of the Americans with Disabilities Act ( ADA ) in 1990 has been praised as the major accomplishment of the disability rights movement. This statute, however, is not without its flaws. Perhaps the most problematic one is the way in which “disability” is defined. Lisa Eichhorn argues that the definition undercuts the effectiveness of the ADA. She begins with a historical look at society’s concepts of disability and discusses how these concepts were incorporated into the Rehabilitation Act of 1973 and the ADA. She then examines cases that have been dismissed because plaintiffs cannot prove disabled status, which illustrate the problems with the disability definition. The Supreme Court has not provided lower courts with much guidance in this area, as demonstrated by the recent case of Bragdon v. Abbott. Ms. Eichhorn, however, offers relief for courts struggling with the definition: amend the disability definition so it represents more accurately the goals not only of the Act’s drafters but also of disability rights activists

Declaring, Exploring, Instructing, and (Wait for It) Joking: Tonal Variation in Majority Opinions

British literary critic I.A. Richards once defined “tone” as a literary speaker’s attitude toward his or her listener. Borrowing that definition, this article posits that the genre of the majority judicial opinion leaves more room for tonal variation than many scholars have previously theorized. The article first elaborates on the concept of “tone,” distinguishing it from “voice” and “style.” It then reviews the existing scholarship on tone in legal writing and describes the specific dynamics of tone in majority opinions. At that point, the article closely analyzes tonal variation in two 2020 Supreme Court opinions: the majority opinion in Chiafalo v. Washington, the so-called “faithless electors” case, authored by Justice Elena Kagan, and the majority opinion in Bostock v. Clayton County, the Title VII case involving gay and transgender persons, authored by Justice Neil Gorsuch. This analysis demonstrates that tone can vary widely not only from author to author, but also from passage to passage within a single author’s majority opinion. The article concludes by noting that readers who pay attention to tonal variations in opinions will derive a deeper understanding of those opinions, and that attorneys in particular can benefit from studying tones in opinions because many of the devices that create forceful and persuasive tones in judicial opinions can be adopted for use in legal briefs

Reasonable Accommodations and Awkward Compromises: Issues concerning Learning Disabled Students and Professional Schools in the Law School Context

Under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, colleges and universities are prohibited from discriminating against qualified students with learning disabilities and must reasonably accommodate such disabilities so that students have a genuine opportunity to complete academic programs successfully. Not surprisingly, just like their non-disabled peers, a number of learning disabled college graduates are choosing to enter professions such as law and medicine. Their entry into professional schools has raised a number of legal issues concerning their qualification to matriculate, their need for accommodations, and their eventual ability to practice successfully. This article discusses each of these issues in the specific context of legal education after providing general explanations of learning disabilities and of the federal statutes governing the rights of learning disabled students

Applying the ADA to Mitigating Measures Cases: A Choice of Statutory Evils

This Article critiques the idea that the ADA should exclude from its coverage people who use mitigating measures, such as medications and medical devices, to alleviate the effects of their mental and physical impairments. After describing the statute as an expansive but flawed tool for combating disability-based discrimination, the Article analyzes a 1999 trilogy of Supreme Court cases holding that in determining whether a person has a disability for purposes of ADA coverage, courts should take account of the ameliorative effects of so-called mitigating measures on the person’s impairments. Through this holding, the Court inappropriately constricted the scope of the term “disability” in the statute and thus narrowed the ADA’s coverage in a manner that undermines its legislative purpose. The Article concludes with a call for legislative action to re-establish the appropriately broad reach of the ADA

Major Litigation Activities Regarding Major Life Activities: The Failure of the Disability Definition in the Americans with Disabilities Act of 1990

The passage of the Americans with Disabilities Act ( ADA ) in 1990 has been praised as the major accomplishment of the disability rights movement. This statute, however, is not without its flaws. Perhaps the most problematic one is the way in which “disability” is defined. Lisa Eichhorn argues that the definition undercuts the effectiveness of the ADA. She begins with a historical look at society’s concepts of disability and discusses how these concepts were incorporated into the Rehabilitation Act of 1973 and the ADA. She then examines cases that have been dismissed because plaintiffs cannot prove disabled status, which illustrate the problems with the disability definition. The Supreme Court has not provided lower courts with much guidance in this area, as demonstrated by the recent case of Bragdon v. Abbott. Ms. Eichhorn, however, offers relief for courts struggling with the definition: amend the disability definition so it represents more accurately the goals not only of the Act’s drafters but also of disability rights activists

The Chevron Two-Step and the Toyota Sidestep: Dancing Around the EEOC\u27s Disability Regulations under the ADA

The definition of disability is among the most frequently litigated issues under the Americans with Disabilities Act ( ADA ) because the statute protects only individuals with disabilities. The ADA defines a disability, in part, as an impairment that substantially limits a major life activity, and the EEOC has issued a regulation further defining the term substantially limits for purposes of the Act\u27s employment-related provisions. Although the EEOC\u27s regulation is the product of a valid rulemaking process and is entitled to a high degree of deference under settled administrative law principles, the Supreme Court, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, recently sidestepped the regulation altogether and applied the Court\u27s own, narrower, interpretation of the term substantially limits in assessing whether an employee\u27s difficulty in performing manual tasks rendered her disabled under the ADA. The Toyota Court did not invalidate the EEOC regulation, but the Cour\u27s sidestep around the EEOC language has effectively and inappropriately narrowed the ADA disability definition, especially now that several circuit courts have applied Toyota\u27s interpretation of substantially limits to cases involving a broad range of major life activities. Nevertheless, in cases where the difference between the EEOC\u27s and the Toyota Court\u27s interpretation of substantially limits makes all the difference, some hope remains for plaintiffs who wish to assert ADA claims. Because the EEOC regulation remains valid, because Toyota - in some circuits - can still be limited to its facts, and because other prongs of the statutory disability definition may suffice as a source of coverage, individuals whose impairments significantly affect the manner in which they go about their lives may still find ways of invoking the ADA\u27s protections