Wednesday, March 16, 2011
DePaul Law School Professor Mark Weber, just wrote an excellent article entitled The Common Law of Disability Discrimination which will appear in Utah Law Review. Professor Weber argues that common law claims sounding in breach of contract and tort are viable despite statutory remedies under the ADA. He believes that such claims would not be preempted and that causes of action for breaches of promises to accommodate or in violation of public policy (as well as others) are viable and can fill in the gaps where the ADA does not provide adequate coverage such as with respect to damage issues, coverage issues and statute of limitations issues.
I know from personal experience that common law torts such as assault and battery are often asserted in sexual harassment cases. I see know reason why some disability discrimination claims cannot also assert common law causes of action.
This is a must read article. The abstract provides:
In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination.
On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases.
Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.
Mitchell H. Rubinstein