Thursday, June 6, 2019
Kevin M. Barry (Quinnipiac) and Jennifer Levi (Western New England) have just posted on SSRN their article (forthcoming 35 Touro L. Rev.) The Future of Disability Rights Protections for Transgender People. Here's the abstract:
The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if that disability happens to be one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article tells the story of how this transgender exclusion came to be, why a growing number of federal courts say it does not apply to gender dysphoria, a new and distinct medical diagnosis, and the future of disability rights protections for transgender people.
Wednesday, March 27, 2019
Marcy Karin (UDC) sends word that on March 29th, the UDC Law Review is hosting its annual symposium, Disability Rights: Past, Present, and Future. The focus of the symposium will be on protecting and improving disability rights in today’s challenging environment and tomorrow’s uncertain future. Chai Feldblum, former Commissioner of the U.S. Equal Employment Opportunity Commission, will be the keynote speaker. A number of friends of the blog are speaking on a range of topics, including: The ADAAA at 10; Disability and the #MeToo Movement; Disability, Police Interactions, and the Criminal Justice System; Disability and Education; Disability, Leave, and Caregiving; and Disability Beyond the Workplace.
Anyone in the DMV area – or who wants to see the cherry blossoms and come to the DMV area—is welcome to join for any part of the day-long dialogue about disability rights. Registration (and a full panel/speaker list) is available at bit.ly/DisabilitySymposium. The Law Review’s related call for papers is here: Download UDC Law Review Call for Papers - Disability Rights.
In addition to the symposium, UDC is hosting a reception at Arent Fox at 6pm on March 28th to kick-off the symposium and launch The ADA Project, a new public education resource from the UDC Legislation Clinic and Quinnipiac University Civil Justice Clinic. Registration for the reception is available at bit.ly/TheADAProject.
This looks great!
Thursday, February 28, 2019
Congratulations to Paul Harpur for having been awarded a Future Scholarship Fellowship (funded by The Kinghorn Foundation, Harvard University, Syracuse University, and the University of Queensland) entitled “Universally Designed for Whom? Disability, the Law and Practice of Expanding the 'Normal User'”. Harpur will use his Fulbright Futures Scholarship to spend 3 months between the Burton Blatt Institute at Syracuse University and Harvard University. H will be collecting data and building relationships between Australian and U.S. advocates and researchers involved with the development and promotion of design that is accessible to everyone in society, whether they be able or disabled. Harpur’s research project aims to combat ableism’s influence on human life, so that in the future different ability is not associated with disablement, but instead is accepted as a part of human diversity.
Saturday, February 9, 2019
Nicole Porter (Toledo) has just posted on SSRN a pair of articles well worth reading. Here's the abstract for the article A New Look at the ADA's Undue Hardship Defense (forthcoming Missouri L. Rev.):
Under the Americans with Disabilities Act (ADA), employers must provide accommodations to their disabled employees unless those accommodations cause an undue hardship to the employer. When the ADA was being enacted in 1990, many thought that the undue hardship defense would be hotly debated in the courts and by academics. And yet, the undue hardship defense is very rarely outcome determinative and has not been the subject of a significant piece of scholarship since the mid-1990s. This article takes a fresh look at the under-developed case law surrounding the undue hardship defense. From a data set of over 1,600 potential undue hardship cases, I identified only 120 that address undue hardship in depth. These cases reveal that cost — which both the statute and conventional wisdom suggest is the focus of the inquiry — plays only a minor role. Instead, these cases revealed three recurring themes: (1) courts often confuse or conflate the reasonable accommodation inquiry and the undue hardship defense; (2) whether an accommodation places burdens on other employees (what I call “special treatment stigma”) frequently is relevant to the undue hardship defense; and (3) the phenomenon of “withdrawn accommodations” often influences courts’ analysis of the undue hardship defense. These themes not only provide a deeper insight into the undue hardship defense, but also help to more broadly illuminate the scope of an employer’s obligation to provide reasonable accommodations.
Here's the abstract for Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era? (forthcoming Touro L. Rev.):
The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.
Sunday, December 17, 2017
Thanks to Paul Harpur (TC Beirne - Queensland) for sending word of this disability case currently pending in Ohio:
On December 15, 2017, Denoewer, an adult individual with intellectual and developmental disabilities who is autistic, non-verbal, and epileptic, sued his employer of 7.5 years for disability discrimination and has joined his employer’s client claiming it was an accessory to the discrimination. The claim is available here.
Denoewer pleaded he experienced disability discrimination at the hands of his employer, Uco, a 501(c)(3) non-profit that exists to employ individuals with disabilities in a setting that is purportedly integrated (essentially a sheltered workshop). He contends that Uco breached the ADA and Ohio Rev. Code through treating him less favourably than workers without disabilities. He is seeking compensation for an amount between his actual rate of pay, and pay-related benefits, and the amounts earned and accrued by workers performing tasks that Denoewer was not permitted to perform, even though he claims he could complete, due to his impairment.
The aspect of this case which is novel is the move to sue Uco’s customer, HONDA of America MFG., Inc., for being an accessory to Uco’s disability discrimination. Honda’s accessorial liability is based upon 2 key grounds:
First Honda exercised significant economic power so as to ensure that UCO’s labor costs were lower than were lawfully possible.
Second, Honda’s specific production demands also determined which of UCO’s Production Associates would be permitted to work on the line. As a result, in some instances, non-disabled individuals were placed on the line instead of individuals with disabilities, such as Denoewer, in order to meet Honda’s specific demands.
As a consequence Denoewer is arguing that Honda aided and abetted UCO’s discriminatory conduct.
Wednesday, November 1, 2017
Congratulations to Paul Harpur (U. Queensland/Beirne Law) on the publication earlier this year by Cambridge University Press of his book Discrimination, Copyright & Inequality. The book analyses the interaction between anti-discrimination and copyright laws, in the international human rights and copyright jurisdictions, as well as in the national jurisdictions in Australia, Canada, the UK and USA. This work builds on international and domestic notions of digital equality and rights to access information. The core thesis of this monograph is that technology now creates the possibility that everyone in the world, regardless of their abilities or disabilities, should be able to access the written word.
Here's the publisher's description:
Wednesday, June 21, 2017
Sophie Mitra (Fordham Dep't Econ.) and Douglas Kruse (Rutgers - Management & Labor) have just published a significant new empirical study of the impact of disability on employment. The article is Are Workers with Disabilities More Likely to be Displaced?, and unfortunately their answer is "yes". The article is published at International Journal of Human Resource Management, Vol. 27(4), pp. 1550-1579, 2016; here's the abstract:
The literature on employment and disability has been relatively silent regarding the job loss experience of persons with disabilities. We document the gap in job displacement rates across disability status in the United States over the 2007–2013 period using data from the 2010, 2012 and 2014 Displaced Worker Supplements of the Current Population Survey. We find that men and women with disabilities are, respectively, 75 and 89% more likely to experience an involuntary job loss than men and women without disabilities in the United States over the 2007–2013 period, with gaps in displacement rates of eight and seven percentage points for men and women, respectively. A significant gap is found in most occupation-education subsamples. Using a logit decomposition, we find that differences in observable characteristics do not explain the gap in the job loss rate across disability status. Longitudinal tests following workers over a one-year period point to a causal effect of disability on the likelihood of displacement. While the disability gap may be due to unobservable characteristics, job mismatch and employer discrimination are also possible explanations, highlighting the potential importance of employer and public policies in improving the job security of workers with disabilities.
Wednesday, May 24, 2017
The call for papers for the annual Centre for Human Rights disability rights conference to be held 7-8 November 2017 at the University of Pretoria is now out on the Centres' website. The theme for the conference this year is Domesticating the CRPD in the African region: A focus on access to justice and legal capacity. Important dates:
- Deadline (Abstracts): 16 June 2017.
- Authors will be notified by: 26 June 2017 whether their abstract has been accepted.
- Deadline (Papers): 8 September 2017.
- Authors whose abstracts are accepted will be required to submit their full papers by 8 September 2017.
- Applicants will be notified by 30 September 2017 whether their application for funding has been accepted.
- Date of Conference: 7-8 November 2017.
Sunday, May 21, 2017
Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) has provided this guest post on Blatt v. Cabela’s Retail, Inc.
Seventeen months after oral argument in Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014), Judge Joseph Leeson issued a six-page decision on whether a person suffering with gender dysphoria is covered by the ADA. Judge Leeson said “yes.” The opinion is at .
Judge Leeson agreed with the DOJ’s 11/16/15 Second Statement of Interest (SSOI), that the court should avoid the equal protection argument made by Blatt (and earlier by me in Chapter 16 of Gender Identity and Sexual Orientation Discrimination in the Workplace: A Practical Guide). Sachin Pandya [previously] discusse[d] the DOJ’s SSOI.
Monday, April 24, 2017
Deborah Widiss (Indiana) has a new paper on SSRN (forthcoming in the UC Davis Law review): The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act after Young v. UPS. From the abstract:
Pregnant women sometimes ask employers for accommodations – such as being able to sit on a stool or avoid heavy lifting – to permit them to work safely and productively. In 2015, in Young v. United Parcel Service, the Supreme Court held that the Pregnancy Discrimination Act (PDA) requires courts to scrutinize carefully denial of such requests. The facts in Young arose prior to the effective date of the ADA Amendments Act of 2008 (ADAAA); accordingly, the Court did not address how the ADAAA, which expanded the range of health conditions that qualify as disabilities, affects claims for accommodations under the PDA. This Article fills that gap, updating analysis from an earlier article I wrote on this subject to incorporate the Court’s holding in Young and to discuss how lower courts are applying Young.
The PDA mandates that pregnant employees be treated “the same” as other employees “similar in their ability or inability to work.” Young established that employees who receive accommodations pursuant to the ADA or workers’ compensation laws may be used as comparators in PDA analysis, rejecting lower court decisions to the contrary. The Court stated that evidence that an employer routinely accommodates other health conditions but refuses to provide support for pregnancy is strong circumstantial evidence of discriminatory bias.
The ADAAA magnifies the importance of this holding; it also largely resolves the Young Court’s concern that the PDA not be interpreted to confer a “‘most-favored-nation’ status” on pregnant employees. Under the ADAAA and its implementing regulations, employers must provide reasonable accommodations for impairments that substantially limit an individual’s ability to lift, bend, walk, or stand, even on a temporary basis. Thus workplace accommodations for health conditions that cause limitations like those caused by pregnancy should now be commonplace (and many conditions associated with pregnancy may qualify as disabilities themselves). Robust enforcement of the PDA’s “same treatment” mandate does not create a danger that pregnant employees will be treated better than other employees; rather, it helps ensure that pregnant employees are not consistently treated less well than other employees.
This is a great follow-up to Deborah's earlier work, and looks to be a good read.
Tuesday, April 11, 2017
In 2012, in Kloeckner v. Solis, the court appeared to resolve the question of the appropriate forum for federal civil-service employees appealing decisions of the Merit Systems Protection Board in “mixed cases” (cases alleging an adverse employment action that also violated a federal anti-discrimination statute), holding that those decisions must be challenged in federal district court. But in Perry v. Merit Systems Protection Board, to be argued April 17, the court returns to the issue to decide whether, as the U.S. Court of Appeals for the District of Columbia Circuit held, the answer is different when the MSPB rejects the employee’s claim for lack of jurisdiction because the adverse employment action is not appealable, rather than on the merits or on some procedural ground.
Wednesday, March 29, 2017
Camabridge University Press has just published, as part of the Cambridge Disability Law and Policy Series, Paul Harpur's (Queensland Law) Discrimination, Copyright and Equality: Opening the e-Book for the Print-Disabled. Here's the publisher's description:
- While equality laws operate to enable access to information, these laws have limited power over the overriding impact of market forces and copyright laws that focus on restricting access to information. Technology now creates opportunities for everyone in the world, regardless of their abilities or disabilities, to be able to access the written word – yet the print disabled are denied reading equality, and have their access to information limited by laws protecting the mainstream use and consumption of information. The Convention on the Rights of Persons with Disabilities and the World Intellectual Property Organization's Marrakesh Treaty have swept in a new legal paradigm. This book contributes to disability rights scholarship, and builds on ideas of digital equality and rights to access in its analysis of domestic disability anti-discrimination, civil rights, human rights, constitutional rights, copyright and other equality measures that promote and hinder reading equality.
- A valuable resource for advocates, law makers, librarians and others who seek to reform laws, policies and practices that reduce reading equality.
- Provides a comparative analysis of how copyright and anti-discrimination laws interacts.
- Provides an in-depth analysis of advances in international and domestic laws.
Thursday, February 9, 2017
Paul Harpur's (Queensland) has been working recently on a cross-disciplinary project analysing the regulation of disability assistance animals/service animals in Australia, Canada, Ireland, the UK, and the U.S. Yesterday, he was interviewed on Australia's Channel 10. Though apparently the segment can't be viewed outside Australia, here's an excerpt from the interview.
What do a bird, a miniature horse, a cat and pig have in common with a guide dog? They’re all legal assistance animals…and it’s causing a headache for authorities.
Aged 11 years old and weighing in at around a kilo, Tiberius is a blue and gold Macaw and is much more than an exotic pet.
He is a lifeline for Alicia, who suffers complications from a chronic pain condition. "[Tiberius's] job is to monitor my heart and pain condition and warn me of incoming attacks."
Tiberius monitors her pulse for changes and Alicia says she can’t live without him. Twice, he has saved her life of an actual heart attack. “I was on the phone saying I’m going to have a heart attack. My service animal has sensed it and warned me. I got laughed at.”
As well as mockery, Alicia has had to contend with outright hostility from people not used to seeing a working disability parrot. “I’ve been escorted out, I’ve been demanded out, I’ve had people swearing at me, spit coming off them.”
While local and state laws prevent non-canines like Tiberius being used as assistance animals, federal laws don’t: and people are starting to cotton on .
When the act was passed in 1992 it used the term “disability assistance animals” and it’s always used the term “animals”. Back in the day 99% of animals were dogs so no one’s really noticed it. But with the growth of animal assisted therapy there is an increase in people wanting to bring other animals into public spaces.
And Federal laws also lack the strict training standard found in state laws. Individuals can train their own animals and associations that have nothing to do with disability can train animals. It’s a mess.
Professor Paul Harpur, who relies on a seeing eye dog, has studied the trend towards non-canines. He worries people are fraudulently claiming their pets as disability assistance animals.
It’s already a big issue in US: with turkeys, ducks, kangaroos and pigs turning up on planes and restaurants as “emotional support animals”. Transport authorities here [in Australia] have had to contend with a miniature horse approved for travel on Melbourne’s trams; as well as an assistance dingo, a “stress rabbit”, plus assistance cats, rats, birds and pigs.
Saturday, December 17, 2016
Paul Harpur (Queensland) writes to tell us that an Australian disability wage-setting tool has been found discriminatory, and that the Australian government has agreed to pay 9,735 intellectual disabled workers entitlements which may reach $100 million AUD. Here's Paul's analysis:
An Australian government disability wage setting tool used to assess the wages of intellectually disabled workers who were employed in an Australian Disability Enterprise (a form of government subsidized employment) resulted in people with certain disabilities being under paid.
The tool in question, the Business Services Wage Assessment Tool, was used to determine how much each worker should be paid and if they were entitled to wage increases.
It was alleged that the imposition of the condition or requirement that wages be fixed using the tool amounted to indirect disability discrimination within the meaning of s 6 of the Disability Discrimination Act 1992 (Cth).
The tool fixed the amount of a wage by an assessment of competency and of productivity. The assessment of competency was made by reference to eight elements. Some of these competencies were irrelevant to the work actually undertaken by workers and the assessment processes relating to other competencies was flawed. The assessment processes used abstract answers in an interview situation with intellectually disabled workers. If workers did not provide a prescribed response they scored zero.
The Australian government accepted that this tool was discriminatory and has agreed to pay back wages for thousands of workers. The government introduced legislation to create a framework to repay wages in the Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth) (see also the Business Services Wage Assessment Tool Payment Scheme Bill 2014 (Cth) Explanatory Memorandum) and on 16 December 2016 the wage claims and discrimination claims by a class of 9,735 workers was approved by the Federal Court of Australia in Duval-Cowrie v Commonwealth of Australia (2016) FCA 1523. The length and size of these under payments are substantial and are estimated to cost the Australian government $100 million AUD.
Wednesday, November 2, 2016
If you have students writing on issues connected with disability and the law, please share with them this announcement (you can even post this flyer Download TJSL-CraneWritingCompetition-2017-d2) from our friend Susan Bisom-Rapp (Thomas Jefferson):
Thomas Jefferson School of law is pleased to announce the third Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner.
All submissions must be submitted electronically to: firstname.lastname@example.org. All entries must be received by midnight, Pacific Standard Time, January 15, 2017. Winning submissions will be announced by April 15, 2017.
For further details, please consult the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Please distribute this information broadly so that we may reach as many eligible students as possible. Questions may be directed to Associate Dean and Professor Susan Bisom-Rapp, who will be coordinating the competition:email@example.com.
Friday, October 21, 2016
Speakers at a workshop in Queensland predict that employers Down Under could soon see a sharp increase in employee requests to bring service animals to the workplace. Per Disability assistance animals or not? Problems in policy and practice workshop: Summary and Scoping Discussion Paper, with Paul Harpur, Martie-Louise Verreynne, Nancy Pachana, Peter Billings and Brent Ritchie:
Employers of the one in every five Australians that have disabilities could face increasing demands to bring "assistance animals" such as dogs and miniature horses into the workplace, a workshop heard recently.
Speakers at the workshop on the issue at the Queensland Supreme Court on September 27 said that recent court rulings and an uncertain regulatory regime have made it difficult to determine or challenge whether a worker is entitled to bring such an animal to work.
Former disability discrimination commissioner Graeme Innes told the forum that four million Australians have disabilities that would give them protection under the Disability Discrimination Act.
Speakers at the workshop suggested while most of these people might not generally regard themselves as disabled, the existence of a medical condition usually enables such a person to assert they have a disability within the meaning of s4 of the Disability Discrimination Act.
They said it would be "relatively easy" for most of those people to claim an animal accompanying them was an assistance animal protected under section 9 of the Act, according to the chief investigator appointed by the workshop, Paul Harpur, a senior lecturer in the University of Queensland's TC Beirne School of Law.
A scoping paper circulated at the workshop – Disability animals or Not? Problems in policy and practice – said the Act defines assistance animals as those that are trained to help a person with a disability to alleviate the effects of their disability and to meet standards of hygiene and behaviour appropriate for an animal in a public place.
It said courts had interpreted the definition broadly to encompass "a self-trained dog that has not been accredited by a recognised disability training organisation".
Sunday, September 4, 2016
Sam Estreicher (NYU) has posted on SSRN his article Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules. Kudos to Sam proposing something designed to create job opportunities for the heretofore nearly unemployable; I hope this helps move the discussion forward. Here's Sam's abstract:
This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.
Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.
The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern.
This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.
Tuesday, July 19, 2016
Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:
Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.
The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!
July 19, 2016 in Books, Disability, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (1)
Thursday, December 17, 2015
Friend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:
The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle. We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.
Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016. To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at firstname.lastname@example.org and email@example.com by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well.
To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.
Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop. Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.
SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.
December 17, 2015 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour | Permalink | Comments (0)
Monday, December 7, 2015
How will the Department of Justice (DOJ) defend against an Equal Protection Clause challenge to that part of the Americans with Disabilities Act (ADA) that excludes “gender identity disorders not resulting from physical impairments” from the statutory term “disability,” 42 U.S.C. § 12211(b)(1) (the “GID exclusion)? When we last talked about Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014) —an employment discrimination lawsuit brought by a transgender plaintiff.—DOJ had asked the district judge to avoid the constitutional issue by deciding the plaintiff’s Title VII claim (discrimination because of gender identity) instead of her ADA claim. The district court didn’t buy it and asked DOJ to say more or intervene.
So, a second try. DOJ has a new constitutional-avoidance argument: According to “a growing body of scientific evidence,” gender dysphoria—the plaintiff’s alleged disability—is a gender identity disorder that does “result[ ] from physical impairments.” Therefore, the district court can (and must) read the ADA’s GID exclusion not to apply in this case. The ADA’s definition of disability contemplates impairments as “physical” or “mental”. 42 U.S.C. § 12102(1)(A) (“a physical or mental impairment”). DOJ’s key move here is to read the phrase “resulting from physical impairments” in the GID exclusion to not cover “GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood,” that is, a GID that “has a physical basis.” Citing various sources in support, including a recent literature review (Saraswat et al., 2015), DOJ concludes: “While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.”
In response, the defendant-employer agreed that the GID exclusion doesn’t cover gender dysphoria stemming from a physical impairment, but emphasized that the plaintiff hadn’t alleged that her gender dysphoria resulted from a physical impairment. As a result, the defendant’s lawyers wrote, DOJ’s avoidance argument wasn’t “credible”. The plaintiff’s amici—several NGOs that advocate for transgender people’s rights— agreed that DOJ’s position was, in its result, at least consistent with their view that, after the DSM-5, gender dysphoria isn’t a gender identity disorder at all, but a “new diagnosis.” But if not, the amici added, and if DOJ’s view requires a plaintiff in any particular to prove that his or her gender dysphoria does actually result from a physical impairment, then the court can’t avoid the Equal Protection Clause challenge completely. That’s because (1) only transgender plaintiffs would bear that burden of proof; (2) that burden would burn a lot of “attorney resources for discovery and the preparation of expert reports and requiring courts to delve into a thicket of medical evidence and opine on etiology, with the attendant risk of different courts reaching differing results in similar cases”; and (3) if the plaintiff couldn’t meet that burden, the court would then have to decide the constitutional issue. The plaintiff’s lawyers agreed with this view.
What about the plaintiff’s ADA claim based on perceived disability? First Amended Complaint ¶¶ 36, 53. The ADA defines “disability” to include cases in which a person is “regarded as” disabled. 42 U.S.C. § 12102(1)(C). Today, that’s defined to cover a person who suffers discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity,” id. § 12102(3)—the result of the ADA Amendments of 2008. So, if the defendant’s alleged illegal conduct had occurred today, maybe DOJ would also say—to make avoidance work—that the GID exclusion doesn’t apply to “regarded-as” ADA claims. (That is, not even when a defendant-employer treats a person adversely because it thinks (erroneously) that a person has a “gender identity disorder” caused by a physical impairment; or thinks (erroneously, in DOJ’s view) that a person has a “gender identity disorder” caused by a mental impairment; or thinks a person has a “gender identity disorder” but doesn’t know or care whether that condition has a mostly physical or mostly mental etiology.) But the alleged illegal conduct in Blatt took place before the ADA amendments of 2008. Back then, the Third Circuit had required that, for a regarded-as claim, the plaintiff’s perceived disability would, if true, count as an “impairment” under the ADA, see Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d. Cir. 2002).
Maybe we’ll find out soon how DOJ’s second try at avoidance will fare. Oral argument on the defendant’s partial motion in Blatt is scheduled for this Thursday (Dec. 10).
--- Sachin Pandya