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Abstract:
Although the apparent purpose of the January 1, 2009 amendments to the Americans with Disabilities Act is solely to broaden the ADA's protected class, the manner in which the amendments achieve this purpose erodes the statute's explicit textual support for understanding persons with disabilities as a politically subordinated minority. The amendments also strengthen the statutory link between the biological severity of a person's disability and that person's right to sue for ADA accommodations. Accordingly, for some courts, the amendments will reinforce the perception that the ADA differs from traditional civil rights law.

Federal courts' understanding of ADA's relationship to traditional civil rights law will shape courts' resolution of unresolved questions about the ADA's scope. Because the ADA, as amended, will now enable more plaintiffs to proceed past the preliminary question of membership in the ADA's protected class, federal courts will soon be forced to confront broad questions relating to the ADA's application. Resolution of these questions will largely turn on courts' understanding of the conceptual relationship between the ADA and traditional civil rights statutes, an underlying question which the recent amendments will unintentionally shape.

ADA, disability, employment discrimination, ADA Amendments Act, ADA Restoration Act

Abstract:
Traditionally understood, a congressional grant of federal subject matter jurisdiction alone does not confer authority on a federal court to hear a case; a party to the case must also affirmatively invoke the applicable jurisdictional ground. In a sharp break from this traditional understanding, federal courts have recently begun to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. Courts adopting this practice have concluded that a district court must retain removed cases that meet the requirements of a congressionally-authorized ground of subject matter jurisdiction even when an arguably antecedent requirement - party invocation of that jurisdictional ground - has not occurred. This article identifies and criticizes this development, coining the phrase mandatory retention to describe federal courts' decision to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. The article recommends that courts equalize plaintiffs' and defendants' abilities to amend their jurisdictional allegations rather than shift responsibility for establishing jurisdiction in removed cases from the defendant to the federal court.

jurisdiction, removal, federalism, mandatory, retention, invoke

Abstract:
This article challenges the assumption that the Americans with Disabilities Act (ADA) requires persons with disabilities to undergo corrective surgery as a precondition to membership in the ADA's protected class. This issue is ripe for discussion because current efforts to amend the ADA, although not focused on the corrective surgery issue, will unsettle the current doctrine underpinning many courts' conclusions that an individual's decision to forgo available medical technology bars her from relief under the ADA. The article aims to make two contributions. First, it argues that the ADA's focus on reshaping cultural responses to disability suggests that individuals need not acquiesce to all available medical efforts to eliminate their disability before they may challenge disability discrimination. Instead, the ADA's conceptual congruence with the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race and gender, suggests that the ADA provides individuals with disabilities the opportunity to argue that their physical differences should be accepted and accommodated rather than erased. Second, it argues that reading the ADA's nondiscrimination mandate to cover persons who decline corrective surgery is consistent with the ADA's text. The Supreme Court's Sutton v. United Air Lines decision, which has contributed to many courts' conclusions that the ADA requires individuals to undergo corrective surgery, in fact prevents courts from excluding persons from the ADA's protected class based on the hypothetical benefits of forgone corrective surgery.

disability, ADA, mitigation, surgery, cochlear implants

Abstract:
By dramatically enlarging the Americans with Disabilities Act’s protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. While disparities in the social stigma associated with different disabilities suggests that such employment decisions are not automatically free from disability-based animus, many courts historically regarded such decisions as immune from ADA scrutiny. They held that the ADA only prohibited discrimination between persons inside and outside the ADA’s protected class. Today, this “no intraclass claims” approach persists in modified form: some courts limit intraclass claims to situations in which employers disfavor persons with more biologically severe disabilities vis-à-vis persons whose disabilities are less biologically severe. While this approach benefits individuals with more biologically severe disabilities, it compounds the disadvantage experienced by persons whose disabilities carry the most significant social stigma, a burden which does not directly correlate with the biological severity of a person’s disability. This article argues that just as courts’ refusal to permit intraclass disability discrimination claims inappropriately obscured the negative social responses to disabilities that Congress designed the ADA to address, courts’ current emphasis on the biological severity of disabilities also departs from the ADA’s core purpose: remedying the stigma and stereotypical assumptions experienced by individuals with disabilities.

disability, ADA, ADA Amendments, intraclass, comparator