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Adverse Elements: How Requiring an Adverse Employment Action Element in ADA Failure-to-Accommodate Claims Hinders Disability Rights
Get PDFIndividuals with disabilities are continuously marginalized by a world tailored to the able-bodied. One of the most visible areas where this marginalization manifests is employment. The Americans with Disabilities Act of 1990 (ADA) attempts to combat this with its extensive legislation to resolve and mitigate disability discrimination in employment contexts. In this attempt, the ADA mandates that employers provide disabled employees with reasonable accommodations—employment modifications necessary for many disabled employees to perform their jobs and feel included in the workplace. Jurisprudence reflects a series of decisions where courts read the ADA narrowly, strictly, and from an able-bodied perspective, resulting in significant barriers to litigation for many potential disabled litigants seeking to bring failure-to-accommodate claims, or even ADA claims generally.
This Comment focuses on the circuit split on whether a prima facie failure-to-accommodate claim includes an additional, implied, adverse employment action element. In jurisdictions that require proof of this element, a disabled plaintiff cannot prevail on a failure-to-accommodate claim, even if they meet every element enumerated in the plain text of the ADA. Instead, they must show they were fired, demoted, denied a promotion, or otherwise subjected to some negative change in the terms of their employment. In these jurisdictions, the ADA no longer imposes an affirmative obligation on employers to provide reasonable accommodations—they are free to deny accommodations all they wish. This Comment argues that the current circuit split should be resolved by finding that there is no adverse employment action requirement within an ADA failure-to-accommodate claim. It further argues that a statutory amendment is warranted regardless of whether the United States Supreme Court resolves the split. This Comment stresses that amendment is crucial to eliminate confusion among circuit courts and to ease the immense burdens plaintiffs with disabilities bear in bringing failure-to-accommodate claims
Discrimination in Contractual Performance: Theory, Evidence, and Preliminary Policy Prescriptions
Get PDFThis Article examines the often-overlooked practice of “selective performance” of standard form consumer contracts—where sellers permit employees to exercise discretion by waiving or modifying contractual terms to maintain customer satisfaction. While such flexibility can benefit consumers, it raises serious concerns about discrimination. Through both theoretical analysis and empirical evidence, this Article demonstrates that discretionary performance can disproportionately favor certain consumer groups, particularly along racial and gender lines, leading to biased and inequitable outcomes. Drawing on examples from diverse sectors, including retail, insurance, and mortgage services, the Article highlights how marginalized communities, especially Black consumers, frequently face harsher treatment and greater obstacles in the enforcement of contractual rights. In response, the Article proposes actionable strategies to mitigate bias in the performance of consumer contracts. These strategies include debiasing training, the implementation of more objective decision-making criteria, increased monitoring and accountability, diversifying personnel, and leveraging artificial intelligence to detect and prevent discriminatory patterns. Additionally, the Article explores how regulators can incentivize sellers to adopt these bias-reducing measures through a “safe harbor” framework. By integrating insights from psychology and institutional design, this Article offers a roadmap for promoting fairness and reducing discrimination in the performance of consumer contracts, ultimately advocating for a more equitable marketplace
Too Woke to Fail? ESG and Silicon Valley Bank\u27s Demise
Get PDFThe anti-Environmental, Social, and Governance (ESG) movement is unfolding in many states as part of the new culture wars. When Silicon Valley Bank (SVB) collapsed in March of 2023, ESG was named as the cause. Corporations, particularly those operating in the financial and banking sector, are justifiably concerned about attracting negative attention from the anti-ESG movement.
This Article posits that the ESG embraced by the financial sector, particularly by banks operating in the venture capital and startup ecosystem, is both timely and necessary. Despite the fierce attack against ESG as seen through a series of state laws and regulations passed recently, banks’ ESG efforts should continue to fortify their competitive strength in the global market. Using Silicon Valley Bank as a case study, this Article illustrates that SVB’s integration of ESG in its business and investments was imperative in the bank’s history. Other factors—not ESG—caused SVB’s sudden death. In the wake of SVB’s collapse, other financial institutions should fill the void to serve the climate tech startup ecosystem and strengthen their commitments to ESG
Interlocutor for Elizabeth Chiarello’s discussion of her book, Policing Patients: Treatment and Surveillance on the Frontline of the Opioid Epidemic
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A Loophole in the Fourth Amendment: The Government\u27s Unregulated Purchase of Intimate Health Data
Get PDFCompanies use everyday applications and personal devices to collect deeply personal information about a user’s body and health. While this “intimate health data” includes seemingly innocuous information about fitness activities and basic vitals, it also includes extremely private information about the user’s health, such as chronic conditions and reproductive health. However, consumers have no established rights over the intimate health data shared on their devices. Believing that these technologies are created for their benefit, consumers hand over the most intimate aspects of their lives through health-related applications relying on the promise that their data will remain private. Today, the intimate health data of unaware consumers is collected and sold to third-party data brokers who then repackage the data, label it, and sell it to the highest bidder: advertisers, corporations, and most concerning of all—the government and law enforcement agencies. This ability for governmental entities to simply purchase intimate health data from third-party data brokers violates the Fourth Amendment of the United States Constitution.
To discourage the overreach of arbitrary law enforcement, the Fourth Amendment protects individuals from unreasonable searches and seizures. Without a warrant, governmental entities may purchase intimate health data from third-party data brokers, constituting an unreasonable search in violation of the Fourth Amendment. This Comment examines the use of third-party data brokers by government agencies to collect and analyze intimate health data. In doing so, this Comment advocates for greater accountability in government data collection practices and proposes legislative solutions to regulating the government’s purchase of intimate health data