N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Discrimination Law

Title II of the ADA & Public School Removals

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On March 14, 2023

In Contributions

by Ains­ley McMa­hon*

Under the Indi­vid­u­als with Dis­abil­i­ties Edu­ca­tion Improve­ment Act (“IDEA”), stu­dents with dis­abil­i­ties are enti­tled to a “free appro­pri­ate pub­lic edu­ca­tion” pro­vid­ed by the state. Some states, such as Geor­gia, have imposed dis­crim­i­na­to­ry pro­grams that remove stu­dents with dis­abil­i­ties from schools alto­geth­er. For extreme pro­grams such as these, advo­cates are pur­su­ing ADA antidis­crim­i­na­tion claims to achieve a high­er stan­dard of edu­ca­tion for these stu­dents, par­tic­u­lar­ly where IDEA pro­tec­tions prove insuf­fi­cient. Recent cas­es in Geor­gia indi­cate that these ADA claims may be a viable option for pro­tect­ing dis­abil­i­ty rights and ensur­ing dis­abil­i­ty jus­tice in pub­lic schools. 

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Protecting the Pious: Why the Ministerial Exception Should Not Categorically Bar Hostile Work Environment Claims

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On March 2, 2023

In Contributions

by Jes­si­ca Danesh­var* 

Reli­gious orga­ni­za­tions are con­sti­tu­tion­al­ly pro­tect­ed from undue bur­den from the gov­ern­ment. This pro­tec­tion has been extend­ed to laws that shield employ­ees from employ­er dis­crim­i­na­tion. This “min­is­te­r­i­al excep­tion” is an affir­ma­tive defense reli­gious orga­ni­za­tions uti­lize in response to employ­ment dis­crim­i­na­tion claims made by min­is­ters. The Supreme Court has found that such an excep­tion is appro­pri­ate in a case of employ­ee ter­mi­na­tion, how­ev­er cir­cuits have split on whether the excep­tion cre­ates a cat­e­gor­i­cal bar against all types of employ­ment dis­crim­i­na­tion claims, includ­ing hos­tile work envi­ron­ment claims. This Con­tri­bu­tion argues that the min­is­te­r­i­al excep­tion as applied to hos­tile work envi­ron­ment claims that do not involve tan­gi­ble employ­ment action should be applied spar­ing­ly on a case-by-case basis to safe­guard reli­gious orga­ni­za­tions from uncon­sti­tu­tion­al gov­ern­ment inter­fer­ence while also pro­tect­ing employ­ee rights.

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Disparate Impact Claims and Federal Disability Discrimination Law

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On November 17, 2022

In Contributions

by Eliz­a­beth Schwartz*

Togeth­er, the Amer­i­cans with Dis­abil­i­ties Act and Sec­tion 504 of the Reha­bil­i­ta­tion Act pro­vide fed­er­al pro­tec­tions for indi­vid­u­als with dis­abil­i­ties in a wide vari­ety of con­texts. How­ev­er, while par­ties can pur­sue a pri­vate right of action under these statutes, cir­cuit courts are split on whether to rec­og­nize dis­parate-impact dis­crim­i­na­tion claims. This Con­tri­bu­tion argues that Supreme Court prece­dent and statu­to­ry pur­pose require that dis­parate impact claims be cognizable.

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Ensuring Equality in Employment: A plaintiff alleging sexual orientation discrimination necessarily states a valid sex discrimination claim under Title VII

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On February 4, 2019

In Contributions

by Eri­ka Mur­doch*

Does a plain­tiff alleg­ing sex­u­al ori­en­ta­tion dis­crim­i­na­tion state a valid cause of action under Title VII of the Civ­il Rights Act of 1964? In this Con­tri­bu­tion, Eri­ka Mur­dock (’19) dis­cuss­es whether sex­u­al ori­en­ta­tion dis­crim­i­na­tion is encom­passed with­in the lan­guage of Title VII after recent EEOC and appel­late court cas­es. Ulti­mate­ly, this Con­tri­bu­tion argues that Title VII’s pro­hi­bi­tion of dis­crim­i­na­tion on the basis of “sex” inher­ent­ly encom­pass­es sex­u­al ori­en­ta­tion as a sub­set of the sex dis­crim­i­na­tion it bans.

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Reaffirming the ADA’s Promise: Disability Accommodation During Arrests

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On May 14, 2018

In Contributions

by Andrew Bre­land*

How should police offi­cers take into account the dif­fer­ent needs of a per­son with dis­abil­i­ties dur­ing an arrest? In this Con­tri­bu­tion, Andrew Bre­land (’18) exam­ines the role of the Amer­i­cans with Dis­abil­i­ties Act in gov­ern­ing arrests and inves­ti­ga­tions by police of per­sons with dis­abil­i­ties. Ulti­mate­ly, this Con­tri­bu­tion argues that the ADA’s rea­son­able accom­mo­da­tion require­ment mod­i­fies what search­es and seizures of indi­vid­u­als with dis­abil­i­ties are con­sid­ered rea­son­able under the Fourth Amendment.

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Arrests and the Americans with Disabilities Act: Towards a Unitary Reasonableness Standard

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On April 30, 2018

In Contributions

by Conor Gaffney*

How should police offi­cers take into account the dif­fer­ent needs of a per­son with dis­abil­i­ties dur­ing an arrest? In this Con­tri­bu­tion, Conor Gaffney (’18) exam­ines the role of the Amer­i­cans with Dis­abil­i­ties Act in gov­ern­ing arrests and inves­ti­ga­tions by police of per­sons with dis­abil­i­ties. Ulti­mate­ly, this Con­tri­bu­tion argues that the ADA’s rea­son­able accom­mo­da­tion require­ment mod­i­fies what search­es and seizures of indi­vid­u­als with dis­abil­i­ties are con­sid­ered rea­son­able under the Fourth Amendment.

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The Doctrinal Significance of Message Attribution in Compelled Speech Cases

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On April 7, 2017

In Contributions

by Jesse Klinger*

If a bak­er has a reli­gious objec­tion to same-sex mar­riage, would a law that doesn’t allow him to refuse to sell to a same-sex cou­ple for their wed­ding vio­late his First Amend­ment rights? In this Con­tri­bu­tion, Jesse Klinger tack­les the prob­lem of whether pub­lic accom­mo­da­tions laws — laws that pro­hib­it dis­crim­i­na­tion in the pro­vi­sion of goods and ser­vices — imper­mis­si­bly com­pel a per­son to speak. The Con­tri­bu­tion exam­ines the Supreme Court’s com­pelled speech prece­dents and argues that mes­sage attri­bu­tion is the key issue. In par­tic­u­lar, because pub­lic accom­mo­da­tions laws are con­tent-neu­tral, a speak­er’s First Amend­ment rights are vio­lat­ed only if one would attribute a par­tic­u­lar mes­sage to the provider of the goods or ser­vices in question.

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Moving Beyond a Symptom-Based Test: Gender Dysphoria and the Family Medical Leave Act

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On January 17, 2017

In Contributions

by Josh Thorn*

How should courts assess whether employ­ees suf­fer­ing from symp­toms asso­ci­at­ed with gen­der dys­pho­ria are enti­tled to unpaid, job-pro­tect­ed leave under the Fam­i­ly Med­ical Leave Act (FMLA)? Josh Thorn (’17) explores this ques­tion, based on his expe­ri­ence com­pet­ing at the Wag­n­er Moot Court Com­pe­ti­tion, held at New York Law School in March 2016. The FMLA lim­its eli­gi­bil­i­ty for leave to employ­ees with “seri­ous health con­di­tions” pre­vent­ing the employ­ee from work­ing. This Con­tri­bu­tion urges courts to pri­mar­i­ly con­sid­er whether the treat­ment required for employ­ees diag­nosed with depres­sion and anx­i­ety result­ing from gen­der dys­pho­ria — and not mere­ly the symp­toms of the con­di­tion itself — would pre­vent the employ­ee from work­ing in deter­min­ing whether there exists a “seri­ous health con­di­tion” under the FMLA.

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