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Disability, disparate impact, and class actions.

Michael Ashley Stein1, Michael E Waterstone

  • 1William & Mary School of Law, USA.

Duke Law Journal
|February 17, 2007
PubMed
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Pandisability theory offers a new framework for collective action in disability discrimination cases, reviving group-based legal strategies previously used for race and sex discrimination. This approach addresses workplace exclusion and advocates for broader ADA implementation.

Area of Science:

  • Socio-legal studies
  • Disability law
  • Employment discrimination

Background:

  • Historically, Title VII facilitated group employment discrimination claims through disparate impact theory and class actions.
  • Judicial interpretations have weakened these collective action frameworks, disadvantaging groups, particularly persons with disabilities.
  • The Americans with Disabilities Act (ADA) currently emphasizes individual accommodation claims, neglecting group-based disparate impact theories and class actions.

Purpose of the Study:

  • To propose 'pandisability theory' as a framework for collective action in disability discrimination cases.
  • To demonstrate how pandisability can be applied to ADA public service and accommodation class actions.
  • To advocate for a revitalized approach to group-based disability discrimination litigation and workplace transformation.

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Main Methods:

  • Analysis of legal frameworks, including Title VII, disparate impact theory, and class action device.
  • Examination of judicial interpretations and their impact on collective action for protected groups.
  • Theoretical development of pandisability as an analogue to panethnicity for establishing class identity in disability cases.

Main Results:

  • Pandisability theory provides a viable heuristic for defining class identity in disability discrimination.
  • This theory supports group-based challenges to social exclusion under the ADA, incorporating individualized remedy assessments.
  • The proposed framework aligns with the historical intent of the class action device and offers potential for challenging broader discrimination.

Conclusions:

  • Reinstating collective action paradigms is crucial for addressing systemic disability discrimination in the workplace.
  • Pandisability theory can empower individuals with disabilities to challenge embedded workplace norms and policies.
  • This approach holds potential for transforming workplace environments and advancing disability integration, with implications for other discrimination contexts.