Michael Ashley Stein

Visiting Professor of Law

2017-2018

Austin 305

617-495-1726

Assistant: Mike Zaisser

Biography

Michael Stein holds a J.D. from Harvard Law School and a Ph.D. from Cambridge University. Co-founder and Executive Director of the Harvard Law School Project on Disability, as well as Extraordinary Professor, University of Pretoria Faculty of Law, Centre for Human Rights, and formerly Professor at William & Mary Law School, he has also taught at NYU and Stanford Law School. An internationally acclaimed expert on disability law and policy, Stein participated in the drafting of the United Nations Convention on the Rights of Persons with Disabilities, works with disabled persons organizations around the world, actively consults with international governments on their disability laws and policies, and advises a number of United Nations bodies.

Areas of Interest

Disability, Human Rights, and Information Technology (Jonathan Lazar & Michael Ashley Stein eds., 2017).
Categories:
Discrimination & Civil Rights
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Civil Rights
,
Disability Rights
,
Human Rights Law
,
Networked Society
Type: Book
Abstract
"Disability, Human Rights, and Information Technology addresses the global issue of equal access to information and communications technology (ICT) by persons with disabilities. The right to access the same digital content at the same time and at the same cost as people without disabilities is implicit in several human rights instruments and is featured prominently in Articles 9 and 21 of the Convention on the Rights of Persons with Disabilities. The right to access ICT, moreover, invokes complementary civil and human rights issues: freedom of expression; freedom to information; political participation; civic engagement; inclusive education; the right to access the highest level of scientific and technological information; and participation in social and cultural opportunities. Despite the ready availability and minimal cost of technology to enable people with disabilities to access ICT on an equal footing as consumers without disabilities, prevailing practice around the globe continues to result in their exclusion. Questions and complexities may also arise where technologies advance ahead of existing laws and policies, where legal norms are established but not yet implemented, or where legal rights are defined but clear technical implementations are not yet established. At the intersection of human-computer interaction, disability rights, civil rights, human rights, international development, and public policy, the volume's contributors examine crucial yet underexplored areas, including technology access for people with cognitive impairments, public financing of information technology, accessibility and e-learning, and human rights and social inclusion." -- University of Pennsylvania Press
Kjersti Skarstad & Michael Ashley Stein, Mainstreaming Disability in the United Nations Treaty Bodies, 16 J. Hum. Rts. (forthcoming 2017).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Treaties & International Agreements
Type: Article
Abstract
As of the beginning of this century, the United Nations (UN) human rights system had comprehensively elided persons with disabilities from its purview. The Convention on the Rights of Persons with Disabilities (CRPD) responded to this lacuna in 2006. The CRPD obligates States parties to mainstream disability by protecting and promoting the human rights of persons with disabilities in all policies and programs, and intersects disability with other discriminated-against populations. This Article investigates the success of the UN in mainstreaming disability throughout its human rights treaty bodies over the period 2000–2014 by comparing the seven years before and the eight years after the CRPD's adoption for six core UN treaty bodies. In doing so, the Article provides initial and unique insight into how well the UN implements human rights norms into treaty bodies, and provides a template for future research on the inclusion of vulnerable group-based rights in the UN and beyond. Despite some significant variations between treaty bodies, we find an overall dramatic increase in the quantitative incidence of disability rights being referenced. Nevertheless, a closer look into the practices of two treaty bodies shows that the human rights of persons with disabilities, while noted by those bodies, are included fully only on occasion. For the UN to truly mainstream disability (or other) human rights, those rights must go beyond mere formal references and also be substantively integrated.
Mukul Inamdar, Michael Ashley Stein & Joske Bunders, Does "supported decision-making" in India's Mental Health Care Bill, 2013, measure up to the CRPD's standards?, 1 Indian J. Med. Ethics 229 (2016).
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Disability Law
,
Human Rights Law
Type: Article
Abstract
The Convention on the Rights of Persons with Disabilities (CRPD) requires States to replace their mental health laws based on substitute decision-making for persons with mental health issues with laws based on the supported decision-making paradigm. However, the exact scope of the CRPD's mandates is currently under debate, especially in the case of persons with very high support needs. The Mental Health Care Bill, 2013, introduces supported decision-making in India in the form of advance directives and nominated representatives. This article discusses how far the Bill measures up to the CRPD's standards and highlights some of the difficulties when the support needs of the person are very high.
Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53 (2016).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Family Law
Sub-Categories:
Disability Rights
,
Reproduction
,
East Asian Legal Studies
,
Comparative Law
,
International Law
Type: Article
Abstract
Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.
Amy Raub, Isabel Latz, Aleta Sprague, Michael Ashley Stein & Jody Heymann, Constitutional Rights of Persons with Disabilities: An Analysis of 193 National Constitutions, 29 Harv. Hum. Rts. J. 203 (2016).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Comparative Law
Type: Article
Abstract
This article examines the extent to which all 193 UN member states guarantee the rights of persons with disabilities in their national constitutions based on fundamental human rights outlined in the Convention on the Rights of Persons with Disabilities. As of May 2014, constitutions most commonly explicitly guarantee rights to persons with disabilities in education (28%), health (26%), and overall equity (24%). Fewer constitutions specifically guarantee the right to work or non-discrimination at work (18%), political rights (21-22%), or civil rights (9%) to persons with disabilities. Additionally, many constitutions permit denials of the right to liberty (19%) and political rights (22%-31%) for persons with mental health conditions. Although constitutional guarantees of rights for persons with disabilities are present in only a minority of constitutions, we find a significant increase in the inclusion of relevant provisions in constitutions adopted more recently, particularly those adopted in 2010 or later, across all regions.
Alex C. Geisinger & Michael Ashley Stein, Expressive Law and the Americans with Disabilities Act, 114 Mich. L. Rev. 1061 (2016) (reviewing Richard H. McAdams, The Expressive Powers of Law: Theories and Limits (2015)).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
Type: Article
Abstract
The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.
Christopher P. Guzelian, Michael Ashley Stein & Hagop S. Akiskal, Credit Scores, Lending and Psychosocial Disability, 95 B.U. L. Rev 1807 (2015).
Categories:
Consumer Finance
,
Discrimination & Civil Rights
Sub-Categories:
Consumer Protection Law
,
Consumer Bankruptcy Law
,
Disability Rights
Type: Article
Abstract
Credit scores have become a near-universal financial passport for Americans to meet common personal needs including employment, loans, insurance, and home and car purchases or leases. At the same time, Elizabeth Warren and others have documented the horrific economic, emotional, and health consequences of low creditworthiness for score-bearers and their families. Individuals with psychosocial disabilities (previously called mental disabilities or mental illnesses) can make disastrously poor financial decisions during the active phases of their conditions; during inactive phases they are as capable as others of making sound or poor financial decisions. Yet, in computing credit scores and selling credit reports, national and transnational credit-reporting agencies (like Equifax) do not account for the implications of psychosocial disability. Worse, evidence shows that businesses rely on these reports to predatorily target borrowers with psychosocial disabilities — and especially those who are also women and racial minorities — in deciding terms of lending, employment, and housing. In theory but not in practice, the Americans with Disabilities Act and the Fair Housing Act each prohibit discriminatory financial decisions arising from disability status, while also requiring reasonable accommodations to equalize opportunities for disabled persons. The United Nations Convention on the Rights of Persons with Disabilities (which the United States has signed) further mandates enabling the financial decision making of these individuals, but does not provide guidance on achieving this obligation. Further, despite the crucial and direct implications this situation also raises for vast numbers of Americans without psychosocial disabilities who likewise make poor credit decisions, it has not undergone legal analysis. We engage this significant gap by suggesting schemes drawn from historical and comparative contexts that could enable the creditworthiness of persons with psychosocial disabilities, and then critiquing the costs and benefits of each. In doing so, we proffer the first analysis of this issue in the legal literature and seek to stimulate future dialogue among academics and policymakers. The Article concludes with thoughts on the implications of its analyses for the broader issue of credit scoring.
Michael Ashley Stein, Christopher P. Guzelian & Kristina M. Guzelian, Expert Testimony in Nineteenth Century Malapraxis Actions, 55 Am. J. Legal Hist. 194 (2015).
Categories:
Health Care
,
Legal Profession
Sub-Categories:
Medical Jurisprudence
,
Legal History
Type: Article
Abstract
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominentjurists disparaged testimony for commonly relating anecdotal experience rother than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.
Tal Araten-Bergman, Patricia Tal-Katz & Michael Ashley Stein, Psychosocial Adjustment of Israeli Veterans with Disabilities: Does Employment Status Matter?, 50 Work 59 (2015).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Disability Rights
,
Military & Veterans Law
Type: Article
Abstract
BACKGROUND: Since its establishment in 1948, the state of Israel has been deeply committed to reintegrating veterans with disabilities into mainstream society. Prominently, the Israeli Ministry of Defence's rehabilitation division provides veterans with disabilities with a wide array of benefits and services aimed at restoring their physical and psychosocial functioning, especially in the workplace. The focus on employment is motivated by a prevailing assumption among professionals that successful adjustment to disability is contingent on an individual's ability to reacquire normative occupational function. To date, however, this widely accepted wisdom has not been empirically scrutinized. OBJECTIVE: To empirically explore whether employment status is associated to psychological, social, and behavioural adjustment attributes. METHODS: One hundred and one employed veterans were compared to 111 non-employed veterans in respect to their self-reported levels of hope, acceptance of disability, social networks size and social participation patterns. RESULTS: Employed veterans reported significantly higher levels psychological adjustment as manifested in elevated hope and acceptance of disability and lighter social network than their non-employed counterparts. However no differences were found between employed and non-employed veterans with respect to their social participation patterns. CONCLUSIONS: The value of these findings, as well as wider implications for rehabilitation professionals and policy makers, is discussed.
Christopher L. Griffin, Jr. & Michael Ashley Stein, Self-perception of Disability and Prospects for Employment Among US Veterans, 50 Work 49 (2015).
Categories:
Health Care
,
Labor & Employment
Sub-Categories:
Disability Law
,
Employment Practice
Type: Article
Abstract
BACKGROUND: Barriers to employment in the civilian labor force are increasingly difficult problems for returning veterans with disabilities. Reduced self-perception of disability status because of predominant military norms can be particularly harmful to reintegration efforts. OBJECTIVE: We analyze rates of self-identified and externally determined disability status among U.S. veterans. Evidence of a lower self-report rate would confirm the hypothesis that armed forces culture might hold back truly deserving veterans from seeking the benefits owed, including specialized employment training programs. METHODS: We use data from the Current Population Survey Veterans Supplement over the sample period 1995—2010 on disability status and associated demographic characteristics to present descriptive measures and limited statistical inference. RESULTS: Over the entire sample period, federal agencies considered 29% of the survey respondents to have a service-connected disability versus a 9% self-identification rate. The rate of more severe service-connected disabilities has risen steadily, while less drastic disability rates have fallen. Non-white respondents and those with lower education levels were less likely to self-identify. CONCLUSIONS: Large disparities in internal and external disability status identification raise questions about targeting soldiers re-entering the labor force. Employment policy should focus on overcoming negative cultural stereotypes and encouraging self-identification.
Bradley A. Areheart & Michael Ashley Stein, The Disability–Employability Divide: Bottlenecks to Equal Opportunity, 133 Mich. L. Rev. 877 (2015)(reviewing Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford Univ. Press 2014)).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Employment Discrimination
Type: Article
Abstract
Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that Bottlenecks leaves largely unexplored, however, relates to people with disabilities. This Review applies Fishkin’s theory to explore how disability law creates and perpetuates bottlenecks that keep people with disabilities from achieving a greater degree of human flourishing. In particular, disability policy’s opportunity structure features a conceptual disability–employability divide that ultimately prevents people with disabilities from reaching a wider array of opportunities. Fishkin’s book, in concert with this Review, introduces new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.
János Fiala-Butora, Michael Ashley Stein & Janet E. Lord, The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, 55 Harv. Int’l L.J. 71 (2014).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Elections & Voting
,
European Law
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection. The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons with disabilities, this violates the requirement of equality expressed in general international human rights law that recently was explicitly extended to cover disability. The Article also pushes the discussion forward by delving into the controversial and unsettling notion of proxy voting, suggested by philosopher Martha Nussbaum. Although a small number of individuals cannot currently be accommodated in the electoral process, this does not justify their disenfranchisement. Nor does it warrant a more intrusive measure, such as voting by proxy. In no circumstance should their situation justify singling out voting-incapable persons from other individuals or categorizing them differently before the law. Although the focus is often seen through a European lens, the questions raised are pertinent for the exercise of human rights by persons with disabilities around the globe.
Michael Ashley Stein, Anita Silvers, Bradley A. Areheart & Leslie Pickering Francis, Accommodating Every Body, 81 U. Chi. L. Rev. 689 (2014).
Categories:
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Employment Practice
,
Employment Discrimination
Type: Article
Abstract
This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes that, in principle, “accommodating every body” be achieved by extending Americans with Disabilities Act type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because it is in everyone’s interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.
Disability and Equity at Work (Jody Heymann, Michael Ashley Stein & Gonzalo Moreno eds., Oxford Univ. Press 2014).
Categories:
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Employment Practice
Type: Book
Abstract
"Despite international and national guarantees of equal rights, there remains a great deal to be done to achieve global employment equality for individuals with disabilities. In OECD countries, the employment rate of persons with disabilities was just over 40%, compared to 75% for persons without a disability; in many low- and middle-income countries, the employment rates are even lower."
Michael Evan Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyers, 53 Wm. & Mary L. Rev. 1287 (2012).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Disability Rights
,
Civil Rights
,
Social Welfare Law
,
Legal Services
Type: Article
Abstract
There is vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these disability civil rights cases. This Article responds to these scholarly voids. We conducted in-depth interviews with many of the nation’s leading disability rights cause lawyers. What we found makes three novel contributions. As the first examination of the activities of these public interest lawyers and their advocacy, it brings to light a neglected sector of an otherwise well-examined field. In doing so, this Article complements but also complicates the cause lawyering literature by presenting a vibrant and successful cohort of social movement lawyers who in some ways emulate their peers, and in other ways have a unique perspective and mode of operation. The Article also forces a re-consideration of academic critiques of the efficacy and transformative potential of the ADA, because it demonstrates how disability cause lawyers have effectively utilized the statute to achieve social integration in the shadow of the Court’s restrictive jurisprudence.
John J. Donohue, Michael Ashley Stein, Christopher L. Griffin & Sascha Becker, Assessing Post-ADA Employment: Some Econometric Evidence and Policy Considerations, 8 J. Empirical Legal Stud. 477 (2011).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Civil Rights
,
Race & Ethnicity
,
Empirical Legal Studies
,
Employment Discrimination
Type: Article
Abstract
This article explores the relationship between the Americans with Disabilities Act (ADA) and the relative labor market outcomes for people with disabilities. Using individual‐level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics (PSID), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7,120 unique male household heads between the ages of 21 and 65, as well as for a subset of 1,437 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to nondisabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA‐related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.
Michael Ashley Stein & Janet E. Lord, Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential, 32 Hum. Rts. Q. 689 (2010).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Treaties & International Agreements
,
Human Rights Law
Type: Article
Abstract
As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD, or Convention) has an opportunity to progressively reconfigure the structure and process of human rights oversight. The Convention was opened for signature on March 30, 2007, and entered into force on May 3, 2008. On November 3, 2008, a monitoring Committee on the Rights of Persons with Disabilities (Committee) was elected during the initial Conference of States Parties to protect the rights of the world’s largest minority, some 650 million persons with disabilities. The overall framework for monitoring and implementing the Convention resembles existing core human rights instruments, particularly the Enforced Disappearances treaty that was adopted eight days afterwards. At the same time, the Committee is endowed with several notable innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more generally. Accordingly, this Article examines the development of the CRPD Committee and assesses its potential for invigorating future United Nations monitoring reforms. Part I of the Article describes the Committee established by the United Nations to scrutinize the CRPD and highlights its advances over other human rights treaty bodies. Next, Part II looks at monitoring innovations that were suggested during the CRPD negotiations at a time when treaty body reform was a major subtext, but ultimately were not incorporated into the final instrument. In doing so, Part II considers how adoption of some of these oversight procedures could have affected broader human rights treaty reform efforts at the United Nations. Finally, Part III suggests creative avenues through which the Committee may yet progressively shape the direction of human rights treaty monitoring through innovative practices.
David B. Wilkins, Michael Ashley Stein & Michael E. Waterstone, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658 (2010)(reviewing Samuel Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009)).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Disability Rights
,
Public Interest Law
,
Legal Services
Type: Article
Abstract
Professors Stein, Waterstone, and Wilkins review Samuel Bagenstos’s Law and the Contradictions of the Disability Rights Movement, suggesting that the disability rights movement’s success has been limited by a lack of “cause lawyering.” Many constituencies that have lobbied for civil rights, such as people of color, women, and lesbians and gays, have had significant internal divisions, and the disability rights movement is no exception, as Bagenstos documents. However, say the authors here, these other movements have benefited from lawyers dedicated to the shared goals of the group and attuned to effective, focused litigation. In contrast, the lawyers who have represented people with disabilities before the Supreme Court have had little affinity with the disability rights movement as a whole; instead, these lawyers have focused on the narrow needs of particular constituencies. Thus, the movement has chosen to advance its goals–granted, often with substantial success–through means other than the Supreme Court. However, the professors suggest, conditions have changed and the time may be ripe for the disability rights movement to reengage the Court.
Michael Ashley Stein, Michael E. Waterstone & David B. Wilkins, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658 (2010) (reviewing Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009)).
Categories:
Health Care
,
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Disability Rights
,
Discrimination
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Disability Law
,
Legal Reform
Type: Article
William P. Alford & Michael Ashley Stein, Youngberg v. Romeo, in Encyclopedia of American Disability History, 989 (Susan Burch ed., Facts on File Library of American History, 2009).
Categories:
Health Care
Sub-Categories:
Disability Law
Type: Book
Michael Evan Waterstone & Michael Ashley Stein, Disabling Prejudice, 102 Nw. U. L. Rev. (2008)(reviewing Mark C. Weber, Disability Harassment 1351(2007)).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Discrimination
,
Civil Rights
,
Employment Discrimination
Type: Article
Abstract
This is a review of Mark C. Weber's book DISABILITY HARASSMENT. Weber's work provides powerful evidence of an important but often unacknowledged form of intentional discrimination against people with disabilities. It also provides a doctrinal formulation by which to address this issue, as well as normative arguments for why we should. Weber's work draws insight from social science research suggesting that discomfort and anxiety relating to disability can lead non-disabled people to deliberately stigmatize people with disabilities. Yet a growing body of legal and social science research suggests that the discomfort generated by minorities, women, and people with disabilities in the workplace also leads to less acknowledged, even unconscious forms of discrimination. Like the blunt disability harassment Weber discusses, courts and legislatures have found that this less blatantly recognized variant of discrimination is difficult to confront and address. We therefore address invidious unconscious discrimination in this Review Essay by making the case for why people with psycho-social (also called, mental) disabilities, who are largely considered to be among the most stigmatized individuals, should and can be integrated into the workplace. In doing so, our assertions go beyond legal protections to argue that occupationally integrating individuals with mental disabilities is also beneficial for their co-workers without disabilities. Part I of this Review Essay sets forth Weber's thesis, arguments, and conclusions regarding disability-based harassment. Part II briefly overviews the influence of deeply embedded unconscious discrimination, especially as it affects occupational participation by minority groups, including people with disabilities. Next, Part III provides an initial treatment of why people with mental disabilities normatively should and practically can be incorporated into the workforce. In doing so, we highlight some of the less currently appreciated benefits of integrating these workers. We conclude with a few thoughts on how incorporating individuals with psycho-social disabilities may be seen as part of the overall dynamic of increasing flexibility in the evolving workplace, including some advantages that redound to their non-disabled peers.
Michael Ashley Stein, Disability Human Rights, 95 Calif. L. Rev. 75 (2007).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
Responding to the absence of an international treaty expressly protecting people with disabilities, the United Nations General Assembly will soon adopt a disability-based human rights convention. This Article examines the theoretical implications of adding disability to the existing canon of human rights, both for individuals with disabilities and for other under-protected people. It develops a "disability human rights paradigm" by combining components of the social model of disability, the human right to development, and Martha Nussbaum's version of the capabilities approach, but filters them through a disability rights perspective to preserve that which provides for individual flourishing and modifying that which does not. This Article maintains that Nussbaum's capabilities approach provides an especially fertile space within which to understand the content of human rights. However, because her scheme excludes some intellectually disabled individuals and conditions the inclusion of others, it falls short of a comprehensive framework. Amending Nussbaum's capabilities approach to develop the talents of all individuals results in a disability human rights paradigm that recognizes the dignity and worth of every person. This Article also argues that a disability rights paradigm is capable of fortifying human rights in two ways: first, it can reinforce protections afforded to groups already protected, such as women; and second, it can extend protections to people currently not protected, such as sexual minorities and the poor. Ultimately, the disability rights paradigm indicates that human rights protection can progress from a group to an individual basis. Repositioning disability as an inclusive concept embraces disability as a universal human variation rather than an aberration.
Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. Pa. L. Rev. 579 (2004).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Disability Rights
,
Discrimination
,
Employment Discrimination
Type: Article
Abstract
The Americans with Disabilities Act (ADA) was heralded as an emancipation proclamation for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this canonical belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy, and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA's transformative agenda.

Education History

Current Courses

Course Catalog View

Austin 305

617-495-1726

Assistant: Mike Zaisser