Disability Discrimination Law Research Articles

Beyond the Tram Lines: Disability Discrimination, Reproductive Rights and Anachronistic Abortion Law.

This article takes as its starting point the recent case of Crowter, which challenged the law permitting provision of abortion on the grounds of fetal anomaly. It begins by briefly locating the case within a longer 'biography' of the Abortion Act 1967, casting important light on the issue raised within it. It then focuses in detail on the claims made in Crowter, exploring how important moral, social and political concerns with disability discrimination were refracted through an anti-abortion lens as they were translated into legal argument. As a result, the legal remedies sought were simultaneously disproportionate and insufficient to address the harms described. Whilst agreeing that the Abortion Act reflects anachronistic and discriminatory understandings of disability and is overdue reform, the article argues that a response that fully reflects modern ethical values will require more radical change than envisaged in Crowter, and that this must refuse an opposition between the rights of pregnant and disabled people.

Dutch disability discrimination law and further and higher education: A case study based on the Opinions of the Netherlands Institute for Human Rights

Dutch legislation has prohibited disability discrimination with regard to post-secondary education since 2003, when the Equal Treatment of Disabled and Chronically Ill People Act came into force. The Act prohibits disability discrimination with regard to, inter alia, further and higher education. The Netherlands Institute for Human Rights (NIHR) plays an important role in interpreting and applying all Dutch equality legislation. It has a quasi-judicial task and, in this capacity, hears individual complaints and issues Opinions. The NIHR, and its predecessor, the Equal Treatment Commission, have issued numerous Opinions in the context of post-secondary education and (alleged) disability discrimination. For this reason, the Netherlands has been selected for a case study on disability discrimination in post-secondary education. This article examines 70 Opinions in this area and explores: whether individuals with particular forms of disabilities or chronic illnesses are over-represented in the cases brought; the main areas in which cases (alleging) disability discrimination in the context of post- secondary education have arisen; and the types of (alleged) discrimination which are at issue.

Using the new disability human rights paradigm to create higher education leadership opportunities

Driven by anti-discrimination laws and a desire to promote human rights, universities have made strategic efforts to support their students with disabilities and provided some support to their staff with disabilities. However, persons with disabilities are not visible in senior leadership positions in universities. It is time for change. The UN Convention on the Rights of Persons with Disabilities (CRPD) has established new human rights expectations that require representation of persons with disabilities across all of society, and at all levels, at percentages which reflect their proportion within the population. Even though States are slow to introduce regulatory reforms to transform society and realize ability equality, some in the higher education sector are seeking to go above compliance and move their institutions, and the broader sector, to a more inclusive place. This paper maps out the efforts led at one Australian institution to use existing structures in disability discrimination laws to provide leadership opportunities for persons with disabilities as a blueprint for further change.

Current Topics in Health Care Law

Current Topics in Health Care Law

Do Stronger Employment Discrimination Protections Decrease Reliance on Social Security Disability Insurance? Evidence from the U.S. Social Security Reforms.

The United States Social Security Amendments of 1983 increased the full retirement age and penalties for retiring before that age. This increased Social Security Disability Insurance (SSDI) applications by making SSDI relatively more generous. We explore if state disability and age discrimination laws moderated these spillovers, using variation whereby many state laws are broader or stronger than federal law. We estimate the effects of these laws on SSDI applications and receipt using a difference-in-differences approach. We find that a broader definition of disability, where only a medically diagnosed condition is required to be covered under state law, along with being able to sue for more damages under state disability discrimination law, are both associated with a significant reduction in induced SSDI applications and receipts. We also find some evidence that some features of state disability discrimination laws are also associated with increased employment, especially for women. While we find some positive association between age discrimination laws and employment effects, we do not find any moderating effect of age discrimination laws on SSDI.

Employers ’ Response to Workers With Progressive Cognitive Impairment: A Review of Policy in Canada

Volunteering is conducive to older Americans’ physical and mental health; however, the effect of volunteering on cognitive health is less studied. Using four waves (2010-2016) of the Health and Retirement Study, this study examined the incremental effect of volunteering engagement on older adults’ cognitive health. We included10,718 cognitively unimpaired, community-dwelling individuals aged 51+ in 2010 and were alive through 2016. Volunteering engagement was measured by the number of times respondents participated in volunteering throughout the four waves. Objective cognition was assessed using the Telephone Interview for Cognitive Status (TICS), a standardized test of cognitive functioning. The TICS score was further categorized into three statuses: “No impairment,” “Cognitive impairment no dementia (CIND),” and “Dementia.” Subjective cognition referred to self-rated memory on a 5-point Likert scale. With sampling weights, ordered logit regression was performed controlling for health-related variables (e.g., health conditions, depression), SES (e.g., income, assets), contextual features (e.g., neighborhood safety, urbanicity), and sociodemographics. The average marginal effects (AMEs) were produced. Results show that more volunteering engagement significantly reduced the likelihood of CIND or dementia (OR=0.88, p<0.001). Specifically, every one-time increase in volunteering increased the probability of remaining cognitively normal by 0.01 (p<0.001), whereas it decreased the probability of CIND by 0.008 (p<0.001) and dementia by 0.001 (p<0.001). For subjective cognition, there was no significant relationship with volunteering. Our findings address gaps in literature by adding evidence of the incremental health benefits of volunteering on cognitive functioning. Differences in the findings for subjective and objective cognition warrant further investigation.

Combating workplace discrimination on the basis of HIV status through disability law in Zambia

Zambia has within the last two decades enacted several pieces of legislation aimed at enhancing equality in the labour market and the workplace. However, despite being one of the countries that has been severely devastated by the HIV/AIDS pandemic, Zambia does not yet have specific legislation targeted at HIV-related stigma and discrimination in the labour market and workplace. Apart from the general prohibitions against discrimination on the basis of health or social status, it remains to be seen whether concepts such as reasonable accommodation have a place in the fight against discrimination and stigma of HIV/AIDS in the Zambian workplace. The purpose of this article is not to argue for the enactment of HIV/AIDS specific legislation in Zambia but to instead argue that despite the absence of such legislation, HIV/AIDS discrimination and stigma can be addressed within the context of the Country’s existing disability discrimination law. The arguments advanced in this article are considered largely within the context of the Zambian High Court case of Stanley Kingaipe &amp; Another v The Attorney General.

Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws

Critics have long maintained that the rights revolution and, by extension, the postwar turn to litigation as a regulatory tool, are the product of a cynical legislative choice. On this view, legislators choose rights and litigation over alternative regulatory approaches to shift costs from on-budget forms (for example, publicly funded social provisions, public enforcement actions by prosecutors or agencies) to off-budget forms (for example, rights-based statutory duties, enforced via private lawsuits). This “cost-shift” theory has never been subjected to sustained theoretical scrutiny or comprehensive empirical test. This article offers the first such analysis, examining a context where the cost-shift hypothesis is at its most plausible: disability discrimination laws, which shift costs away from social welfare programs by requiring that employers hire and “accommodate” workers with disabilities. Using a novel dataset of state-level disability discrimination laws enacted prior to the federal-level Americans with Disabilities Act (ADA) and a range of archival and other materials drawn from state-level legislative campaigns, we find only limited support for the view that cost shifting offered at least part of the motivation for these laws. Our findings offer a fresh perspective on long-standing debates about American disability law and politics, including judicial interpretation of the ADA and its state-level analogues and the relationship of disability rights activism to other rights-based political movements.

Program Access Under Disability Discrimination Law

State and local governments and all federal grantees must operate their programs. services. and activities are readily accessible to persons with disabilities when the program, service, or activity is viewed in its entirety. This Article submits that courts should adopt an expansive reading of this program access requirement, imposing an obligation on governments and grantees to offer something of benefit to everyone, no matter the nature of that someone’s disability. The text of the federal regulations, relevant caselaw, and persuasive analogies require this reading. Moreover, this energetic interpretation of the Americans with Disabilities Act and Section 504 regulations resolves some of the thornier problems of current disability discrimination law: limits on reasonable accommodation and the distinction between access and content for legally required accommodations. Applied to the recent case of A.H. ex rel. Holzmueller v. Illinois High School Association, the proper reading of the program access regulations requires the creation of a para-ambulatory long distance road race in the state high school competition.

People with Intellectual Disabilities and Employment Discrimination Law: A US Case Study

This article explores how anti-discrimination law has been applied in relation to employment discrimination faced by people with intellectual disabilities. Although disability discrimination laws are now found in many states, there has been relatively little litigation by those with intellectual disabilities as regards employment discrimination. This article examines experience in the USA in order to identify the potential of anti-discrimination law, as well as its limitations in practice. It considers litigation brought by individual plaintiffs, as well as enforcement actions by public bodies. This concerns employment in the open labour market, but also sheltered employment schemes. The article concludes by reflecting on what lessons may be derived from US experience.

Of Immigration, Public Charges, Disability Discrimination, and, of All Things, Hobby Lobby

This Essay seeks to demonstrate that federal disability discrimination law conflicts with and thus supervenes the Trump Administration’s new regulations changing the standards for excluding immigrants from the United States on the basis of their likelihood of becoming a public charge. The new regulations use an explicit disability-related criterion that is not required by the statutory admission standards and will have an unjustified negative impact on immigrants who have disabling conditions. The Essay draws the comparison to Burwell v. Hobby Lobby, Inc., a 2014 case in which the Supreme Court invalidated a federal regulation on the ground that it conflicted not with its enabling legislation but with an unrelated federal statute, the Religious Freedom Restoration Act.

Conceptualizing Addiction as Disability in Discrimination Law: A Situated Comparison

People labeled as having an addiction and people with disabilities face significant discrimination in their daily lives. In countries where targeted disability discrimination law is applied, it is often assumed that including addiction in the definition of disability will protect those labeled as having an addiction from discrimination. Several scholars have considered the effects of excluding addiction from the remit of discrimination law, but there has been less work examining the consequences—both positive and negative—of including addiction. Using the method of “situated comparisons” developed by intersectionality scholars, this article interrogates how addiction and disability are co-constituted in two contrasting legal and geographical contexts, where people labeled as having an addiction have sought to assert their right to equality before the law. By comparing the application of targeted discrimination law in Australia with a human rights charter in Canada, it demonstrates how systems of power such as ableism and neoliberalism work through the law to co-constitute addiction and disability in ways that are stigmatizing, even within legal approaches that aim to eliminate discrimination. Furthermore, the law, in both contexts, fails to recognize the intersectional nature of discrimination often experienced by these groups. The article contends that conceptualizing addiction as a disability will not necessarily reduce the discrimination faced by people labeled as having an addiction and concludes with recommendations for both policy and legal practice.

Do State Laws Protecting Older Workers from Discrimination Reduce Age Discrimination in Hiring? Evidence from a Field Experiment.

We conduct a resume field experiment in all U.S. states to study how state laws protecting older workers from age discrimination affect age discrimination in hiring for retail sales jobs. We relate the difference in callback rates between old and young applicants to state variation in age and disability discrimination laws. These laws could boost hiring of older applicants, although they could have the unintended consequence of deterring hiring if they increase termination costs. In our preferred estimates that are weighted to be representative of the workforce, we find evidence that there is less discrimination against older men and women in states where age discrimination law allows larger damages, and more limited evidence that there is lower discrimination against older women in states where disability discrimination law allows larger damages. Our clearest result is that these laws do not have the unintended consequence of lowering callbacks for older workers.

Should we take the 'disability' out of discrimination laws?: Students with challenging behaviour and the definition of disability

Disability discrimination law has been of limited benefit to people with atypical and challenging behaviour. The role that law might play in upholding the equality rights of people with challenging behaviour is potentially expanded by changing medical and scientific knowledge about such behaviour, which brings more people within the definition of 'disability' and the protective ambit of the law. Yet this protective promise has not translated into legal gains, with few successful equality law cases decided in Australian courts and tribunals. This article critically examines the role of law, particularly anti-discrimination law, in regulating (or protecting) divergent behaviour, using a case study of students with challenging behaviour in Australian schools. It considers the lack of successful discrimination law cases in the education context, and asks whether, given this seeming legislative failure, disability discrimination laws have anything left to offer school students in terms of protecting their equality rights. The article gives an overview of anti-discrimination complaints and cases brought by students with challenging behaviour. It includes interview data from State and federal anti-discrimination bodies, legal practitioners and disability activists to complement case law and other public reports of discrimination. Using this background data, the article considers whether current discrimination law models do enough to protect the rights of students with challenging behaviour to education and inclusion in public life or whether new legal and policy measures are needed. It specifically examines changes to the regulatory landscape, including the Convention on the Rights of Persons with Disability, and whether there are any real prospects for law reform.

Eccentricity: the case for undermining legal categories of disability and normalcy

Disability discrimination laws are directed at protecting people with disabilities, including people with ‘disturbed’ behaviour, or behaviour that is a manifestation of a disability, from unfavourable treatment. Yet, in doing so, discrimination laws contribute to the creation of a stigmatized and seemingly static legal category of disability. In response, this paper presents eccentricity as a ‘border’ region between disability and normalcy, one that can disturb the strict and stigmatizing boundary between these artificially separate categories of identity. Eccentricity, understood as a set of socially unusual or unconventional behaviours and traits, is a heightened version of the quirks and idiosyncrasies we all share, and reveals the interconnection of disability and normalcy. This paper asks whether current legal and biomedical definitions of disability, especially under disability discrimination law, have unnecessarily eradicated this rich and destabilizing category of identity and behaviour. Is law complicit in the narrowing of what it means to be ‘normal’, the expansion of what it means to be ‘disabled’ and the destruction of what would otherwise connect those two imagined states of being? This paper examines the way that law deals with eccentricity and argues that it is a concept that can potentially enrich our approach to discrimination law.

Do State Laws Protecting Older Workers from Discrimination Laws Reduce Age Discrimination in Hiring? Experimental (and Nonexperimental) Evidence

We provide evidence from a field experiment — a correspondence study — on age discrimination in hiring for retail sales jobs. We collect experimental data in all 50 states and then relate measured age discrimination — the difference in callback rates between old and young applicants — to variation across states in antidiscrimination laws offering protections to older workers that are stronger than the federal age and disability discrimination laws. We do a similar analysis for nonexperimental data on differences across states in hiring rates of older versus younger workers. The experimental evidence points consistently to evidence of hiring discrimination against older men and more so against older women. However, the evidence on the relationship between hiring discrimination against older workers and state variation in age and disability discrimination laws is not so clear; at a minimum, there is not a compelling case that stronger state protections reduce hiring discrimination against older workers. In contrast, the non-experimental evidence suggests that stronger disability discrimination protections increase the relative hiring of older workers.

Do State Laws Protecting Older Workers from Discrimination Reduce Age Discrimination in Hiring? Experimental (and Nonexperimental) Evidence

We provide evidence from a field experiment — a correspondence study — on age discrimination in hiring for retail sales jobs. We collect experimental data in all 50 states and then relate measured age discrimination — the difference in callback rates between old and young applicants — to variation across states in antidiscrimination laws offering protections to older workers that are stronger than the federal age and disability discrimination laws. We do a similar analysis for nonexperimental data on differences across states in hiring rates of older versus younger workers. The experimental evidence points consistently to evidence of hiring discrimination against older men and more so against older women. However, the evidence on the relationship between hiring discrimination against older workers and state variation in age and disability discrimination laws is not so clear; at a minimum, there is not a compelling case that stronger state protections reduce hiring discrimination against older workers. In contrast, the nonexperimental evidence suggests that stronger disability discrimination protections increase the relative hiring of older workers.

Does Protecting Older Workers From Discrimination Make It Harder to Get Hired? Evidence From Disability Discrimination Laws.

We explore the effects of disability discrimination laws on hiring of older workers. A concern with antidiscrimination laws is that they may reduce hiring by raising the cost of terminations and-in the specific case of disability discrimination laws-raising the cost of employment because of the need to accommodate disabled workers. Moreover, disability discrimination laws can affect nondisabled older workers because they are fairly likely to develop work-related disabilities, but are generally not protected by these laws. Using state variation in disability discrimination protections, we find little or no evidence that stronger disability discrimination laws lower the hiring of nondisabled older workers. We similarly find no evidence of adverse effects of disability discrimination laws on hiring of disabled older workers.

How disability discrimination law can enable new assistive technologies

Disability Discrimination Law is a relatively recent innovation whose principles have now been accepted by the vast majority of the world's nations. Chief amongst these is the elastic yet mercurial concept of reasonable adjustments, which can have some surprising yet potent implications for this rights of people with disabilities. This article is an overview of my varied work aimed at exploring how disability discrimination law can enable new assistive technologies, including systems of general utility (e.g. Google Glass) which as a side effect, can also assist in helping ameliorate disability related disadvantages. At the same time, I also discuss some of the existing limitations with respect to disability discrimination law and its implementation.

Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding

This article concerns the theoretical and practical contribution of radical lawyer, feminist, and disability activist, Caroline Gooding to disability rights in the United Kingdom. It assesses the impact of her published work in the 1990s and translation of her insights into practice through her work on the Disability Discrimination Act 1995 and later at the Disability Rights Commission, not least in securing in legislation a positive disability equality duty. In particular, it seeks to situate Gooding's contribution within the ‘new civil rights history’, with its emphasis on the role of lawyer as mediator, facilitator, and ‘gatekeeper’. It argues that through her engagement with strategic law enforcement, law reform, and the wider mobilization of the law, Gooding created ‘alternative visions and accounts’ of disability and so forged a decisive connection between disabled people as a social movement and the law, in ways of exemplary value to social movements more generally.