Category Archives: Americans With Disabilities Act

Why silence continues to surround pregnancy discrimination in the workplace

Source: Michelle D. Deardorff, The Conversation, August 23, 2016

….Part of the reason for this, I believe, is that scholars have largely failed to study the issue. When researchers do address pregnancy and employment, they tend to focus on the exceptions or women in professional and managerial employment, not the lives of working-class women.

Pregnancy and the American Worker,” a new book I coauthored with James Dahl, aims to remedy this lack of scholarship by examining how U.S. courts have interpreted pregnancy discrimination under the two acts meant to prevent it. Our research suggests that one reason the issue has received so little attention is that pregnancy discrimination disproportionately affects hourly workers – typically poor or working class – a group often without a voice and frequently ignored by political elites…..

Disability Rights and Labor: Is This Conflict Really Necessary?

Source: Samuel R. Bagenstos, University of Michigan Law School, Public Law Research Paper No. 509, June 15, 2016

From the abstract:
The relationship between the American labor movement and identity-based social movements has long been a complicated one. Organized labor has often been an ally of civil rights struggles, and major civil rights leaders have often supported the claims and campaigns of organized labor. Recall the reason Dr. Martin Luther King was in Memphis on the day he was assassinated — to lend his support to a strike by unionized sanitation workers. But unions and civil rights groups have found themselves on the opposite sides of intense battles as well. The relationship between the labor movement and the disability rights movement is just as complicated. Organized labor has often been an ally of disability rights efforts. But in some of the highest stakes battles for workers and individuals with disabilities, many unions and disability rights groups have opposed each other. Although many commentators have written about the tensions and collaborations between labor unions and civil rights groups promoting race or sex equality, the very similar dynamics of the relationship between unions and disability rights groups have largely escaped comment.

In the past several years, though, the tensions in the labor-disability relationship have become especially acute. As unions (particularly the Service Employees International Union) have pushed for increased wages and benefits for direct-care workers who provide home and community-based services, and state Medicaid cuts have placed pressure on the budgets available to pay those workers, many disability rights activists have worried that labor’s agenda will lead to the (re-)institutionalization of people with disabilities. This tension stood in the background of the litigation in Harris v. Quinn, in which the Supreme Court addressed the collective bargaining system some states had set up for personal-assistance workers. And the dispute between unions and (some) disability rights activists broke out in a particularly sharp and nasty way in response to the Department of Labor’s recent rules expanding Fair Labor Standards Act protections for home care workers. Although some disability rights groups supported the new rules, which had been a major priority of organized labor, particularly vocal and influential activist groups opposed them. These tensions are nothing new. Disability rights activists have long challenged the paternalism of those assigned to “help” or “care” for them, and the unions that represent those workers are thus a natural target for suspicion if not antagonism. And many (though not all) elements of the American labor movement have strongly opposed the deinstitutionalization of people with mental disabilities. The current labor-disability tensions cannot be understood outside of the context of that history.

This essay, which was presented as the Stewart Lecture on Labor and Employment Law at the Indiana University Maurer School of Law in April 2016, attempts to do two things. First, it puts the current labor-disability controversy into that broader context. Second, and perhaps more important, it takes a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, this essay argues both that those workers have a compelling normative claim to full FLSA protection — a claim that disability rights advocates should recognize — and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to the broader tensions, the essay argues that disability rights advocates go wrong, both normatively and pragmatically, in treating the interests of individuals with disabilities as inevitably superordinate to those of individuals who do the work of providing community-based services and supports. Although this wrong turn is completely understandable in light of the history of paternalist subordination of people with disabilities at the hands of the helping professions, today’s situation calls for an accommodation of the legitimate claims of each side.

Collective bargaining language on domestic violence, discrimination, disabilities, and LGBTTI rights

Source: Canadian Union of Public Employees (CUPE), 2015

Domestic violence and the workplace: A bargaining guide
September 29, 2015

Discrimination: A checklist and sample collective agreement language
October 19, 2015

Duty to accommodate: A checklist for collective agreement language
October 19, 2015

Bargaining LGBTTI rights: A checklist for collective agreement language
October 19, 2015

Social Security Disability Insurance: Participation and Spending

Source: Congressional Budget Office, publication 51443, June 2016

From the summary:
The Social Security Disability Insurance (DI) program pays cash benefits to nonelderly adults who have worked in the past but are judged to be unable to continue performing substantial work because of a disability. The program also pays benefits to some of those adults’ dependents. In 2015, the DI program paid a total of $143 billion, or about 0.8 percent of gross domestic product (GDP), in benefits to almost 9 million disabled beneficiaries and about 2 million of those beneficiaries’ spouses and children. Disabled beneficiaries generally are entitled to Medicare after a two-year waiting period; the cost of those benefits in 2015 was around $85 billion, or about 0.5 percent of GDP, CBO estimates.

How Have Enrollment and Spending Changed Since 1970?
Between 1970 and 2014, the share of working-age people who receive DI benefits as a result of their own disability and whose DI benefits are calculated on the basis of their own disability and work history more than tripled, increasing from 1.3 percent to 4.5 percent, before declining slightly in 2015. The increase in DI beneficiaries since 1970 is attributable to changes in the characteristics of the working-age population, in federal policy, and in employment…..

Promises Kept, Promises Broken, Promises Deferred: The Americans with Disabilities Act

Source: Robert Dinerstein, American University – Washington College of Law, WCL Research Paper No. 2016-12, 2015

From the abstract:     
This article, which is part of a 25th anniversary symposium on the ADA’s impact on people with intellectual and developmental disabilities, argues that although the ADA has led to some demonstrable improvements in the lives of people with intellectual disabilities, in some areas it has been disappointing (especially because of well-known restrictive court decisions or unrealistic expectations of what the ADA could achieve), while in still other areas the success of the ADA is still “to be determined.” The ADA cannot by itself eliminate stigma against people with disabilities, and it is up to advocates to push for judicial and executive branch interpretations of the ADA that will allow its lofty promises to become reality.

Employer Wellness Incentives, the ACA, and the ADA: Reconciling Policy Objectives

Source: Kristin M. Madison, Northeastern University School of Law Research Paper No. 261-2016, October 2015

From the abstract:
Employer-based wellness programs have become increasingly common. Many large firms offer incentives for completing health-related questionnaires or undergoing biometric testing; some offer incentives for meeting targets related to biometric measures such as blood pressure or body-mass index. Over the last two decades, policy makers have both promoted and restricted incentive-based wellness programs. The 2010 Affordable Care Act (ACA) reflected both impulses: it imposed limits on the use of incentives, but signaled support for incentive-based programs by raising a previously existing ceiling on incentive magnitude. More recently, however, federal actions taken in connection with the Americans with Disabilities Act (ADA) threatened to undermine some ACA compliant, incentive-based wellness programs, eliciting protests from some employers. This essay examines the congruence of policy objectives underlying health plan regulations, the ADA, and their wellness program exceptions. While health plan regulations seek to preserve insurance affordability, regardless of health status, the ADA’s wellness program exception seeks to ensure the voluntariness of employees’ provision of information. The author argues that incentives can be compatible with voluntariness, and should therefore be permitted under the ADA, but that the ADA’s focus on voluntariness should lead to incentive regulations that are structured differently from those under the ACA.

Hospitals rationing drugs behind closed doors: a civil rights issue

Source: Wendy F. Hensel, Leslie E. Wolf, The Conversation, February 23, 2016

The United States is facing a shortage of prescription drugs, ranging from antibiotics to cancer treatments. These shortages are putting the medical profession in the frequent position of deciding who will get the drugs that are in short supply and, more importantly, who will not. … According to the article, the decision-making process varies considerably across institutions. For instance, in some hospitals formal ethics committees make these decisions. At others, these decisions are made by individual physicians, pharmacists or even drug company executives. And, as the article also reports, patients typically are not told of the shortage and have no idea that their choice of treatment has been limited, even though the decision may delay their recovery, increase their pain or, in some cases, potentially accelerate their death. As legal experts in medical ethics and disability law who have conducted research on the allocation of medical resources, we were struck by the general lack of awareness of the law evident in the article. The fact is, there are civil rights laws and state laws governing informed consent that apply to such decisions, even in times of public health emergencies and medical shortages. These laws constrain physician decision-making and must be taken into account on the front end in making treatment or distribution decisions for all patients and in particular, we would argue, for patients with disabilities….
Related:
Drug Shortages Forcing Hard Decisions on Rationing Treatments
Source: Sheri Fink, New York Times, January 29, 2016

Such shortages are the new normal in American medicine. But the rationing that results has been largely hidden from patients and the public.

Employee Wellness Programs Not So Voluntary Anymore

Source: Rebecca Greenfield, Bloomberg Businessweek, January 15, 2016

Take a blood test or lose your health coverage….

….Like many employers, Flambeau uses a wellness program to cut insurance costs by encouraging healthy employee habits. In the past, submitting to on-site tests of blood pressure, body-mass, and cholesterol meant saving a few hundred dollars. Now companies such as Flambeau have gone a step farther, denying healthcare entirely to those who don’t participate. People like Arnold must instead pay for more expensive coverage through the government’s COBRA program.

According to several federal courts—including one that ruled in favor of Flambeau—this is all perfectly legal.

In a case filed by the Equal Employment Opportunity Commission, the U.S. government argued that Flambeau’s wellness program didn’t comply with the Americans with Disabilities Act, which limits companies from requiring medical exams or personal health information from workers. Denying employer-sponsored coverage crosses the line from voluntary to coercive, the EEOC contended…..

Disabled in DC: Coping With Increasing Costs and Demand for Paratransit

Source: Daniel C. Vock, Governing, August 31, 2015

The Washington, D.C., metropolitan area has a robust transportation network for people without cars. It has one of the busiest transit systems in the nation that reaches deep into the suburbs, one of the biggest taxi cab fleets in the country, and a welcoming regulatory environment for ride-hailing companies like Uber. But it still struggles to provide accessible transportation to people with disabilities, 25 years after the Americans with Disabilities Act (ADA) made transportation for them a civil right.

In D.C., and many other cities, rising costs and technological change are playing havoc with efforts to increase accessibility at the same time that demand is growing because of the aging Baby Boomers.

This three-part series explores D.C.’s challenges in keeping paratransit costs under control; providing good working conditions for paratransit employees; and expanding transportation options beyond the public transit system. They are issues that the country as a whole faces as it tries to live up to the ADA’s promise.

Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act

Source: Michelle A. Travis, University of San Francisco – School of Law, Research Paper No. 2015-17 May 14, 2015

From the abstract:
This Article reveals a new resistance strategy to disability rights in the workplace. The initial backlash against the Americans with Disabilities Act of 1990 (ADA) targeted protected class status by characterizing the ADA’s accommodation mandate as special treatment that benefitted the disabled at the expense of the nondisabled workforce. As a result, federal courts treated the ADA as a welfare statute rather than a civil rights law, which resulted in the Supreme Court dramatically narrowing the definition of disability. Congress responded with sweeping amendments in 2008 to expand the class of individuals with disabilities who are entitled to accommodations and to align the ADA with Title VII of the Civil Rights Act of 1964 by establishing nearly universal impairment-based antidiscrimination protection. While these amendments have largely dismantled the disability status barrier, employers and their attorneys are working to erect a new barrier with the ADA’s “otherwise qualified” provision, which requires plaintiffs to prove the ability to perform all of the “essential functions of the job” as part of a prima facie disability discrimination case. This Article shows how federal courts are using the concept of “essential job functions” to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs to again restrict access to accommodations and undermine the ADA as a universal civil rights law. By replacing “non-disabled” with “non-qualified” as the ADA’s new gatekeeper, this strategy effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.