Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 Duke L.J. 861 (2006).
Abstract: Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination which defined a group's social identity was also sufficient to legally bind members together, even when relief had to be issued individually. Interwoven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act ("ADA"), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law, and the class action device has been virtually non-existent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions where individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts for challenging race and sex-based discrimination.