ADA Amendments Research Articles

Differences in Americans with Disabilities Act Title I discrimination allegations filed by people with learning disabilities and other disabilities

BACKGROUND: Workers with learning disabilities (LD) report many barriers to employment, including discrimination on the part of employers. OBJECTIVE: To compare the workplace discrimination experiences of workers with LD to those of people with other disabilities. METHOD: The comparison of the two groups, people with LD and people with other disabilities, concerned three factors: Characteristics of Charging Parties, prominent issues involving the nature of the discrimination allegation, and the outcomes of EEOC investigations at the time of case closure. An ex post facto, causal-comparative quantitative design was used to examine allegations closed following the ADA Amendments Act of 2008 (ADAA). RESULTS: Results revealed statistically significant differences in characteristics of the Charging Parties in the two groups. The LD group was significantly younger, more Caucasian, and more male than general population disabilities (GENDIS). The LD group was less African American, Latina/o, or Asian than GENDIS. Regarding the nature of allegations, the substance of allegations made by the LD group was more likely to involve matters of disability harassment, discipline, hiring, constructive discharge, training, and promotion. The LD group was less likely to file allegations involving reasonable accommodation, assignment, and layoff. CONCLUSION: Workers with learning disabilities experience high rates of employment discrimination, and the types of discrimination they experience are different than those experienced by people with other disabilities.

Anxiety and employment discrimination: Implications for counseling and return towork practice.

The most prevalent mental health diagnosis is anxiety disorder, which remains largely undertreated. This investigation considered differences in workplace discrimination against adults with anxiety disorders during two eras of legal history: the original Americans with Disabilities Act (ADA, 1990-2008) and the ADA Amendments Act (ADAAA, 2009-present). Research questions addressed differential (a) numbers and types of allegations, (b) case resolutions, and (c) demographic characteristics of the charging parties. Results indicated substantially more allegations and merit-based resolutions filed by charging parties with anxiety disorders post-ADAAA. Furthermore, the post-ADAAA era revealed increases in allegations from women and people from non-white racial groups. These findings can inform advocacy and counseling and rehabilitation services for clients who experience anxiety.

On the Importance of the Americans with Disabilities Act at 30

This article offers a glimpse of the Americans with Disabilities Act (“ADA”) of 1990, as amended by the ADA Amendments Act of 2008 (“ADAAA”), at its 30th anniversary. It considers current issues before the courts, primarily legal cases from 2020 and 2021, and new questions in light of the COVID-19 pandemic, such the latitude of the ADA’s antidiscrimination protections and its definition of disability. It provides a quick primer on the basics of the ADA: employment discrimination under Title I, antidiscrimination mandates for state and local governments under Title II, and commands to places of accommodation offering services to the public under Title III. The ADA at 30 remains a beacon for a future in which all people, regardless of individual difference, will be welcomed as full and equal members of society.

Parental Leave and Classism: Balancing Rights and Interests Utilizing Weber’s Model of Analysis

Several federal statutes protect women from pregnancy-related discrimination (Americans with Disabilities Act, ADA Amendments Act, Pregnancy Discrimination Act) and provide for unpaid maternity lea...

Workplace discrimination for persons with hearing loss: Before and after the 2008 ADA Amendments Act.

Individuals with hearing loss experience unique barriers to employment frequently documented in the areas of communication and education. The purpose of this article is to contribute to extend this inquiry to the uniqueness of workplace discrimination involving persons with hearing loss. This study investigated differences in allegations of workplace discrimination filed by persons with hearing loss ("Hearing") compared to those filed by persons with other physical or neurological disabilities (General Disability, or "GENDIS") before and after the enactment of the 2008 Americans with Disabilities Act Amendments Act (2008 Amendments). Using secondary data collected from the Equal Employment Opportunity Commission (EEOC) Integrated Mission System, we employ simple measures of proportion and odds ratios to describe differences between allegations derived from GENDIS and Hearing loss populations. These are population statistics, and not samples, of all allegations of discrimination reported to the EEOC through 2016. The comparisons involve Characteristics of the Charging Parties, Issues or discriminatory behaviors alleged, and closure statuses or Merit Rate of the EEOC's investigations - both before and after the 2008 Amendments. Following the 2008 Amendments, Charging Parties changed dramatically on age and gender status. Reasonable Accommodation, Hiring, Harassment, and employment Terms and Conditions showed unique features between groups and/or time periods. The "veracity" (confirmed truthfulness or merit) of the EEOC allegation (or Merit) rate also changed following the Amendments: higher for GENDIS; lower for Hearing. Possible rationale for these findings are offered, and new research questions are raised. Finally, implications for the cross-disability movement are presented.

Supporting the Academic Needs of Students in Higher Education: A Collaboration between Occupational Therapy and Disability Services

Time is often reported by students in postsecondary education as a barrier to academic success. For individuals with challenges to learning, time can place an even greater demand on students’ performance. The contribution of the occupational therapist as are source to a postsecondary academic support team can facilitate the development of productive habits and daily routines necessary for a successful college experience for students seeking accommodations through Access and Disability Services. Purpose: Contribute information supporting factors that influence the academic success of students seeking accommodations in postsecondary education to the body of knowledge in occupational therapy and higher education. Seek a better understanding based on student experience how an individual’s habits and daily routines, associated with time spent in activities related to their role as a college student within a typical day, supports a balance of activities necessary to foster the success of students with disabilities in postsecondary education Aim of the Study: The purpose of this study is to explore how temporal factors influence student performance from the perspective of undergraduate students experiencing challenges to learning. Methodology Research Design: Interpretive phenomenological qualitative study Convenient Sample of Participants: Students ages 18-28 enrolled in postsecondary education at Elmhurst College who receive services through Access and Disability Services. Students must have a high school diploma or GED and qualify under Americans with Disabilities Act of 1990, ADA Amendments Act of 2008, or the Bridge program. Results Results will be determined through semi-structured interviews with students receiving Access & Disability services at Elmhurst College, which will then be transcribed by the researchers. The information gathered in the interviews will be transcribed and then analyzed to form the results for this study. Conclusions Through an extensive literature review it was found that student’s needs in a post secondary setting are not always met even when services are available and utilized. This interpretive phenomenological qualitative study was carried out to obtain a better understanding of student needs in relation to overall academic performance. After collecting and analyzing results from this study the researchers hope to demonstrate evidence to support the use of occupational therapy in community-based academic settings while adding to the body of knowledge for the profession. Implications for Practice A main focus of the AOTA Vision 2025 is to expand occupational therapy services on an individual, population, and community level in order to make a bigger impact with our unique expertise. The researchers hope the results of this study can provide support for occupational therapy services in a postsecondary community setting where it is not currently being utilized. Furthermore, that this data will show the benefit of occupational therapy services for the individual students, the coordinators, and the organization as a whole. This research was client-centered by getting a better understanding of the individual student’s lives and areas of need to enable better academic engagement.

Disability Saliency and Discrimination in Hiring

Theory suggests that disability discrimination protections may adversely affect the hiring of individuals with disabilities by making them more expensive. Using SIPP data, we explore how the ADA Amendments Act (ADAAA), which expanded disability discrimination protections, affected the relative hiring rate of individuals with disabilities. We employ new categorizations of disability type: salient physical conditions, non-salient physical conditions, mental retardation and developmental disability, and other mental conditions. We find that the ADAAA had no effect other than increasing hiring for those with non-salient physical conditions. These results suggest that condition saliency may mediate the effects of discrimination protections on hiring.

Analysing the Effects of Insuring Health Risks: On the Trade-off between Short-Run Insurance Benefits versus Long-Run Incentive Costs

This paper constructs a dynamic model of health insurance to evaluate the short- and long run effects of policies that prevent firms from conditioning wages on health conditions of their workers, and that prevent health insurance companies from charging individuals with adverse health conditions higher insurance premia. Our study is motivated by recent US legislation that has tightened regulations on wage discrimination against workers with poorer health status (Americans with Disability Act of 2009, ADA, and ADA Amendments Act of 2008, ADAAA) and that will prohibit health insurance companies from charging different premiums for workers of different health status starting in 2014 (Patient Protection and Affordable Care Act, PPACA). In the model, a trade-off arises between the static gains from better insurance against poor health induced by these policies and their adverse dynamic incentive effects on household efforts to lead a healthy life. Using household panel data from the PSID we estimate and calibrate the model and then use it to evaluate the static and dynamic consequences of no-wage discrimination and no-prior conditions laws for the evolution of the cross-sectional health and consumption distribution of a cohort of households, as well as ex-ante lifetime utility of a typical member of this cohort. In our quantitative analysis we find that although a combination of both policies is effective in providing full consumption insurance period by period, it is suboptimal to introduce both policies jointly since such policy innovation induces a more rapid deterioration of the cohort health distribution over time. This is due to the fact that combination of both laws severely undermines the incentives to lead healthier lives. The resulting negative effects on health outcomes in society more than offset the static gains from better consumption insurance so that expected discounted lifetime utility is lower under both policies, relative to only implementing wage nondiscrimination legislation.

Long Live the Old Flesh: AIDS and the Americans with Disabilities Act at Quarter-Century

Long Live the Old Flesh:AIDS and the Americans with Disabilities Act at Quarter-Century1 Travis Alexander (bio) This is…this is gastric juices churning, this is enzymes and acids, this is intestinal is what this is, bowel movement and blood-red meat—this stinks, this is politics…the game of being alive. And you think you're… What? Above that? Above alive is what? Dead! In the clouds! You're on earth, goddamnit! Plant a foot, stay a while. —Roy Cohn, from Angels in America (Kushner 1992, 68) When the Americans with Disabilities Act passed into law in 1990, it delivered unimpeachable material reparations to the disabled community in the U.S. But as some observers remind us, the Act's pursuit of social justice wasn't strictly material. It also initiated a representational therapeutic in adopting a constructivist definition of the term "disabled," according to which narratives of disablement were to be as constitutive of a disabled subjectivity, legally speaking, as the latter's material dimension.2 As of July 26, 1990, "being regarded" as having an impairment would be no less constitutive of disablement than "having" a physical or mental impairment. What the ADA brought online in this sensitivity to the discursive inflection of materiality is in fact largely continuous with the academic conceptions of identity that were being elaborated in the social sciences and humanities at the time of its passage. Just as the Act locates disability at the intersection of material contingency and social discourse, so poststructural theorists locate identity at the crossroads of material or phentoypic contingency, social- or State-based discourses of normalization, and performance. At bottom, neither disability as defined by the ADA nor identity as defined by poststructural theory are essentially determined or exhausted by their material dimension. Given [End Page 251] such theoretical commerce with progressive academic concepts, it might surprise us to recall that the ADA was signed into law by a Republican president: George H.W. Bush. Even more confounding, perhaps, is the fact that the ADA Amendments Act (ADAAA) of 2008 signed into law by the second Bush was designed in order to reaffirm precisely the constructivist aspect of the original Act's conception of disability ("Fact Sheet" 2011). Through the 1990s and 2000s a series of Supreme Court decisions established precedents which made remedies more difficult to attain. That is to say, ADA protections were deemed appropriate only for increasingly severe impairments.3 The Amendments Act both rolled back the stringency of these requirements and augmented the original Act's list of "major life activities" that, if limited by an individual's impairment, would qualify her/him for ADA protections. Most saliently among these new activities were "caring for oneself," learning, reading, thinking, and communicating. Through such revisions the Amendments Act ratified the 1990 legislation's convergence with progressive academic imperatives in legitimizing the affective and theoretical dimensions of subjectivity. The Republican affiliation with the original Act, then, wasn't so aberrant after all, since the next Republican in office doubled down on precisely the most progressive commitments of that earlier legislation. Thus, perhaps there is less explanatory purchase in deploying the ADA(AA) to evidence a right-wing openness to identity politics than there is in leveraging it to underscore the bipartisan investment in such imperatives. After all, the ADA and the ADAAA are about as bipartisan as domestic legislation is likely to ever be in this country. Originally introduced by Democratic Senator Tom Harkin (IA), the Act ultimately cleared the upper chamber by a vote of 91 to 6 and passed in the House 377 to 28, before moving on to Bush's desk ("Actions Overview" 1990). Eighteen years later, the Amendments Act was passed by an even wider margin of 402 to 17 in the House and was approved in the Senate by unanimous consent ("H.R.3195" 2008). Despite opposition from an insignificant cluster of religious and business lobbies, the Act seemed to augur political consensus.4 Thus, we might be on safer ground in not glossing the ADA(AA)'s convergence with identity politics as emerging from an isolated evolution of Republican politics, but rather in framing this convergence as...

Health Care Professionals and the Employment-Related Needs of Cancer Survivors.

Introduction Individuals diagnosed with cancer look to health care professionals as primary sources of information. This positions staff in oncology settings in an ideal role to inform patients, who continue workforce participation in increasing numbers, about resources that might help them to handle work-related issues related to their oncological symptoms. This article reports on findings from a survey of staff that provide nonmedical services to cancer patients in two Houston area hospital systems. The impetus for this survey was two-fold: the trend in recent years for increasing numbers of cancer survivors to stay in the workforce after or even during treatment, and low levels of awareness that these employees are eligible for protection under the Americans with Disabilities Act of 1990 and its 2008 amendments (ADA Amendments Act of 2008, Pub. L. 110-325, 122 Stat. 3553, 2008; Americans with Disabilities Act, 42 U.S.C. § 12111-17, 2006). The survey assesses perceptions of the effects of cancer on patients' employment status, levels of knowledge about supports to address these employment-related needs, and respondents' preferred modes for information receipt. The latter topic serves the purpose of tailoring training activities to the respondents' informational needs and learning preferences. Methods Data were collected via an online survey administered in two Houston-area hospital systems. This article reports on the findings from 86 respondents. Results Tenure as measured by years in oncology is related positively to level of knowledge about disability-related benefits, legislation and programs (r=.32, P<.01). Respondents with more years in their profession worked with patients whom they reported had a higher number of cancer side effects that "created work difficulties for patients" (r=.24, P<.05). The number of side effects was in turn positively associated with negative effects of the diagnosis at work (r=.27, P<.05). A higher score of negative effects of the cancer diagnosis at work in turn correlated with unwanted consequences of disclosing the cancer at work (r=.36, P<.01). No statistically significant correlations were observed among the variables measuring respondents' reported knowledge of disability-related benefits, laws and programs, their perception of patients' level of understanding of these topics, and reports of patients' receipt of reasonable accommodation. Conclusions Health care professionals who treat cancer patients could benefit from training resources about how survivors might address their employment-related needs, including how to convey that knowledge to their patients. Mentoring programs might also have positive outcomes, since respondents with greater tenure in oncology-related settings reported higher levels of knowledge about disability-related topics.

Let's Try This Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the "Regarded As" Prong of the Statutory Definition of Disability

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.” Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let’s try this again” mode, Congress enacted the ADAAA in 2008 as a multi-faceted attempt to override the restrictive court rulings. A crucial cornerstone of the 2008 act is a compromise concerning the scope of the “regarded as” prong of the disability definition. One aspect of the compromise is a dramatic expansion in the coverage of individuals adversely treated on the basis of an actual or perceived impairment. This expansion, however, is tempered by two accompanying limitations that exclude coverage of transitory and minor impairments and that eliminate any duty on the part of employers to provide reasonable accommodations to individuals who qualify as disabled solely under the “regarded as” prong. This article chronicles the history of the ADA, the judicial backlash, and the events leading to the enactment of the ADAAA. The article then proceeds to discuss the likely impact and nagging concerns implicated by the “regarded as” compromise. The ADAAA clearly is welcome legislation that expands the class of individuals protected against disability discrimination and employment decisions premised on stereotypical preconceptions. The “regarded as” compromise, however, also comes with a series of nagging questions that have the potential to hinder the ultimate goals of the new legislation and perhaps even unleash a new judicial backlash. These areas of uncertainty must be closely monitored in the years ahead to ensure that the courts do not again frustrate the ADA’s reinvigorated promise

Section 504-Only Students

Students with disabilities fit into two groups: (a) those with individualized education plans (IEPs), who are eligible under both the Individuals With Disabilities Education Act and Section 504, and (b) those with 504 plans, who are eligible under Section 504 only. Updating the only previous data about the incidence of 504-only students, which was a non-governmental survey prior to the 2008 ADA amendments to the Americans With Disabilities Act, this study analyzed the data from the federal government’s 2009–2010 Civil Rights Data Collection (CRDC). The first finding was that the average proportion of 504-only students in the nation’s public schools is approximately 1%. Second, the percentage of this group is significantly higher for (a) Black and Hispanic than for White students and (b) for males than for females. Third, the percentage of 504-only students is significantly higher for (a) high IEP than for low IEP schools, (b) non-charter than for charter schools, and (c) non-Title I than Title I schools. These results suggest the need for more diligent and consistent identification of 504-only students and for more current and comprehensive research.

Analyzing the Effects of Insuring Health Risks: On the Trade-Off between Short Run Insurance Benefits vs. Long Run Incentive Costs

This paper constructs a dynamic model of health insurance to evaluate the short- and long run effects of policies that prevent firms from conditioning wages on health conditions of their workers, and that prevent health insurance companies from charging individuals with adverse health conditions higher insurance premia. Our study is motivated by recent US legislation that has tightened regulations on wage discrimination against workers with poorer health status (Americans with Disability Act of 2009, ADA, and ADA Amendments Act of 2008, ADAAA) and that will prohibit health insurance companies from charging different premiums for workers of different health status starting in 2014 (Patient Protection and Affordable Care Act, PPACA). In the model, a trade-off arises between the static gains from better insurance against poor health induced by these policies and their adverse dynamic incentive effects on household efforts to lead a healthy life. Using household panel data from the PSID we estimate and calibrate the model and then use it to evaluate the static and dynamic consequences of no-wage discrimination and no-prior conditions laws for the evolution of the cross-sectional health and consumption distribution of a cohort of households, as well as ex-ante lifetime utility of a typical member of this cohort. In our quantitative analysis we find that although a combination of both policies is effective in providing full consumption insurance period by period, it is suboptimal to introduce both policies jointly since such policy innovation induces a more rapid deterioration of the cohort health distribution over time. This is due to the fact that combination of both laws severely undermines the incentives to lead healthier lives. The resulting negative effects on health outcomes in society more than offset the static gains from better consumption insurance so that expected discounted lifetime utility is lower under both policies, relative to only implementing wage nondiscrimination legislation.

It Sounded Good in Theory: The Failure of the Models of Judicial Decisionmaking to Predict the Partisan Future of the ADA Amendments Act

Political science scholars have long debated the question of what drives judicial decisions. Currently, their study of judicial decisionmaking centers around a few dominant models that offer different views on whether the legislature and executive can influence or constrain the judiciary. The legal community, however, has been slow to incorporate these political theories into our analysis of pertinent issues. This article seeks to do so by using the political models of judicial decisionmaking to predict the impact of the ADA Amendments Act of 2008 on the Supreme Court. The public embraces, and law schools generally teach, the legal model of judicial decisionmaking. According to this view, judges decide cases based on the and an individual judge’s political leanings play no role. Political science scholars reject this model, at least in its pure form, and their empirical studies of judicial decisionmaking consistently show that judges’ policy preferences do influence their decisions. The real debate in that field centers on whether there is any demonstrable restraint on the judiciary’s acknowledged pursuit of policy. One of the dominant theories, the attitudinal model, asserts that judges interpret law consistently with their policy preferences, unchecked by any outside influence. The other dominant theory, the strategic model, claims that the judiciary’s political preferences are at least to some degree constrained by outside actors, including the executive and legislature. More recently, integrated models have emerged which assert that policy goals, the law, and the preferences of the elected branches all play a role in judicial decisions. The ADA Amendments Act of 2008 (ADAAA), which passed with unanimous Congressional and Presidential support, amends the Americans with Disabilities Act of 1990 (ADA). It is an unusually direct effort by the legislature and executive to control the judicial interpretation of a statute. The ADAAA identifies a series of Supreme Court decisions which incorrectly interpreted the original ADA definition of disabled. Instead of changing that definition, however, the ADAAA includes instructional amendments which direct the courts to reject the prior precedent and to interpret the same statutory language in a different way. Given this, the ADAAA seems particularly useful as a basis for analyzing the various models of judicial decisionmaking and assessing the accuracy of their respective predictions of the degree to which the legislature and executive actually constrain the Supreme Court. Applying the political models of judicial decisionmaking to the test case of the ADAAA, however, reveals the limitations of these paradigms. Specifically, the models of judicial decisionmaking have empirically tested how the risk of Congressional override affects the Supreme Court and have not tested, or otherwise effectively addressed, the effect of enacted overrides such as the ADAAA. To complete the picture, this article draws on different scholarship that does conduct either empirical or case studies of enacted overrides. The result is a more context-specific and normatively challenging prediction than the models can offer. According to the direct evidence on enacted overrides, statutory protections of minority rights are a singular category of cases where the Justices feel most free to follow their particular political preferences. This article therefore predicts that if the Supreme Court is majority conservative at the time of a decision on disability discrimination, the ADAAA will fail to achieve its purpose of broadening the protection of disabled employees. This raises important normative and practical concerns that should be incorporated into the study of and advocacy for federal anti-discrimination laws.

New developments in the law for obesity discrimination protection

Obese individuals are frequent targets of weight-based discrimination, particularly in the employment setting. Victims of weight discrimination have sought legal restitution like others who have suffered from different forms of discrimination. However, in the vast majority of the United States, body weight is not a protected class and weight-based employment discrimination does not provide a basis for a legal claim. Some have attempted to seek legal recourse under the Rehabilitation Act of 1973 or the Americans with Disabilities Act of 1990 (collectively, the ADA), which protect against discrimination based on mental or physical disabilities in a variety of settings. Until recently, claims of weight discrimination under the ADA have also been largely unsuccessful. However, Congress recently passed the ADA Amendments Act, expanding the definition of what constitutes a disability and incorporating a broad view of ADA's coverage. This short communication provides an update of the law as it relates to employment based discrimination of obese people. The authors propose a legislative direction for future legal recourse. The authors conducted legal research into the ADA Amendments Act, and synthesized this work relating to discrimination against weight in the employment context. In light of the ADA Amendments Act, courts and the Equal Employment Opportunity Commission have provided protection for severely obese people from discrimination based on actual or perceived disability in the employment context. The authors discuss this positive legal development and additionally propose a targeted solution to address weight discrimination in the employment setting. National polling suggests there is considerable public support for such a measure. The authors thus recommend the implementation of a "Weight Discrimination in Employment Act" modeled after the Age Discrimination in Employment Act to adequately address this pervasive and damaging injustice toward individuals who are affected by obesity.

Precedent and the Scope of the ADA Amendments Act

Precedent and the Scope of the ADA Amendments Act

Reasonable Accommodations on the Bar Exam: Leveling the Playing Field or Providing an Unfair Advantage?

If you ask law students what they think about examination accommodations provided to students with disabilities, including learning disabilities, most students will tell you that it is unfair that some students get more time to take an examination. The misconception that accommodations provide an unfair advantage may stem from the fact that not all students understand the Americans with Disabilities Act (“ADA”), its purpose, and reasons why individuals receive such accommodations. In fact, the ADA has applications beyond the employment context. Specifically, the ADA ensures that students with disabilities who graduate from medical school, law school, and other professional programs cannot be discriminated against in their educational programs and are entitled to “nondiscrimination and reasonable accommodation in the licensing process.” This article suggests, because of the ADA Amendments Act of 2008 (“ADAAA”), more students should now be able to qualify for reasonable accommodations in the bar exam setting. Part One of this article discusses the background of the ADA, the Amendments and how the various state bar examinations are implicated. The New York State Bar exam, whose treatment of accommodation requests typifies state bar exam practices, is a principal focus. In Part Two, this article analyzes how courts have decided ADA cases where law graduates were either not considered to be disabled or were denied the accommodations they sought before and after the 2008 Amendments. Part Two considers whether there will be future litigation in the ADA, higher-education, bar exam setting and how courts should handle such litigation.

Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts’ narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA carves up the definition of disability, for the first time distinguishing “actual disability” from “regarded as disability,” and expressly reserving the right to accommodation for “actual disability.” This move repudiates a strong form of the social model of disability and accedes to a hierarchy of discrimination that treats the failure to accommodate as a different and lesser form of bias than direct discrimination. Second, and less prominently, the ADAAA introduces an express ban on reverse discrimination claims. Though the provision is arguably positive on a practical level, the fact that this provision could pass without protest — at a time when reverse discrimination claims on the basis of sex and race have become increasingly prominent and legitimate — sets into relief the low status of disability in the popular imagination. Finally, the expanded definition of “disability” under the ADAAA, though useful for many potential plaintiffs, may have unanticipated attitudinal consequences. As the class of those who count as disabled grows, a legal buffer is removed between “nondisabled” and “disabled,” in ways that may increase the existential anxiety of the nondisabled and result in empathy failures. A key question is how to turn existential anxiety about becoming disabled into an appreciation of disability law as a social insurance policy for everyone. Efforts to improve attitudes toward disability will be critical in the coming years, as anticipated by the awareness-raising Article 8 of the UN Convention on the Rights of Persons with Disabilities.

Analyzing the Effects of Insuring Health Risks: On the Trade-Off between Short Run Insurance Benefits vs. Long Run Incentive Costs

This paper constructs a dynamic model of health insurance to evaluate the short- and long run effects of policies that prevent firms from conditioning wages on health conditions of their workers, and that prevent health insurance companies from charging individuals with adverse health conditions higher insurance premia. Our study is motivated by recent US legislation that has tightened regulations on wage discrimination against workers with poorer health status (Americans with Disability Act of 2009, ADA, and ADA Amendments Act of 2008, ADAAA) and that will prohibit health insurance companies from charging different premiums for workers of different health status starting in 2014 (Patient Protection and Affordable Care Act, PPACA). In the model, a trade-off arises between the static gains from better insurance against poor health induced by these policies and their adverse dynamic incentive effects on household efforts to lead a healthy life. Using household panel data from the PSID we estimate and calibrate the model and then use it to evaluate the static and dynamic consequences of no-wage discrimination and no-prior conditions laws for the evolution of the cross-sectional health and consumption distribution of a cohort of households, as well as ex-ante lifetime utility of a typical member of this cohort. In our quantitative analysis we find that although a combination of both policies is effective in providing full consumption insurance period by period, it is suboptimal to introduce both policies jointly since such policy innovation induces a more rapid deterioration of the cohort health distribution over time. This is due to the fact that combination of both laws severely undermines the incentives to lead healthier lives. The resulting negative effects on health outcomes in society more than offset the static gains from better consumption insurance so that expected discounted lifetime utility is lower under both policies, relative to only implementing wage nondiscrimination legislation.

Accommodations for Pregnancy-Related Conditions Under the ADA Amendments Act of 2008

This Article explains how the changes effected by the ADAAA entitle women to a broad range of accommodations for their pregnancy-related conditions under federal law. Part I documents the historical obstacles faced by plaintiffs claiming a right to accommodation based on pregnancy. Part II begins by explaining the history and purpose of the ADAAA, and then shows how the ADAAA creates rights to accommodation in two distinct ways: (1) directly, under the ADA, when pregnant workers can prove pregnancy-related impairments (the “impairment theory”); and (2) indirectly, under the PDA, by expanding the group of similarly situated workers to whom the plaintiff can point to prove she was not treated the same as nonpregnant workers with the same ability of inability to work (the “comparator theory”). Part III looks at the six pregnancy cases decided under the ADAAA to date, which suggest that (after an initial period of confusion) courts have begun to recognize that the ADA now offers accommodations for many pregnant women. Part IV describes the relative benefits for plaintiffs of filing a claim under either the PDA or the ADA. Which cause of action will offer more protection depends on factors explored in this section. The Article concludes by providing some examples of pregnancy-related conditions and explaining how working women with those conditions are now entitled to accommodation under the ADAAA. This section highlights the parallels between common pregnancy-related conditions and non-pregnancy-related conditions, a theme upon which we elaborate in the Appendix to this article.