Disability Law Journal

In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.

Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article also contributes a novel analysis of agency guidance by exploring how its support of medical documentation requirements conflicts with legislative intent and the Americans with Disabilities Act’s rejection of the medical model of disability.

Documenting disability has its price. It requires access to affordable health care and a relationship with a health care provider who is willing to confirm a disability’s existence. Documentation requirements may delay an urgently needed accommodation—one that would, for example, permit an employee to work from home. Until documentation requirements are relaxed—if not eliminated—disabled employees may be forced to work in dangerous conditions, or not work at all.

This Article explores how Title I of the Americans with Disabilities Act of 1990 (ADA) and Section 503 of the Rehabilitation Act of 1973 interact with artificial intelligence (AI) and employment bias and discrimination against and for people with disabilities. Under these sections, employers are prohibited from discrimination on the basis of disability in the hiring and employment process, yet technology that screens video interviews, applications, and other employee and prospective employee materials demonstrates bias and does not select disabled job candidates. These biases can run afoul of the ADA and raise ethical concerns. People with disabilities face disproportionately high unemployment rates compared to the general population. Technology often improves lives and access to opportunity, but AI has the potential to disrupt gains and progress made to improve the lives of disabled individuals.

Part I of this Article analyzes AI and its relation to the disability rights and disability justice movements. Part II explains hiring biases and technology’s relationship with disability. Part III is a thorough analysis of AI and disability bias in employment under Section 503 of the Rehabilitation Act and Title I of the ADA. The concluding section of this Article offers some reflections on accessibility and equity within the workplace as it concerns people with disabilities and how AI can help, rather than hinder, disability hiring and eliminate bias, rather than continue to perpetuate it.

The hidden blueprint of eugenics continues to shape the treatment of captive and vulnerable populations throughout the current pandemic. Though nominally discredited, eugenic thinking continues to guide our twenty-first century incarceration policies and our discriminatory treatment of detained, disabled, and neglected populations. During COVID-19, our unrecognized reliance on eugenics has caused a cascade of disasters: disregard for the welfare of incarcerated people who have fought COVID-19 without supplies, social distancing ability, or compassionate release; hospital rationing policies which limit use of ventilators, hospital beds, and other medical devices by disabled and elderly individuals; the skyrocketing death toll in nursing and long-term care homes; and the profound neglect of group home residents, including children in foster care and the cognitively and developmentally disabled.

These inequitable practices follow a pattern consistent with the philosophy of eugenics. Our society has isolated a class of “unfit” and “unvalued” people, whose lives and dignity are treated as less worthy than others. This article reveals the hidden eugenic thinking supporting our mistreatment of disabled, captive, and vulnerable individuals during the pandemic, and proposes broad and longer-lasting solutions to this legacy of discrimination.

The IDEA’s highly individualized process of disability identification and IEP development allows families with greater financial resources and more cultural capital to secure more advantageous labels for their children—and consequently to reap the benefits of individualized services. At the same time, such insistence on individualization leaves students who receive disadvantageous labels without legal recourse. If plaintiffs claim that they have been identified under an inappropriate disability label, they face an uphill battle: even if they do successfully file a mislabeling complaint, the same financial, informational, or social disadvantages that kept them from securing a more advantageous label in the first place may again hinder their legal claim. In pressing their claim, plaintiffs face courts that sever these labels from their social meanings and fail to consider the broader context of disproportionality surrounding their claims. Ultimately, mislabeling claims demonstrate that given the way the IDEA’s disability categories are conceptualized, applied, and litigated, these categories act as tools of inequity, wholly at odds with the law’s purported goal of individualization.

In what follows, I survey a set of mislabeling cases, where students claim that they were identified under an inappropriate disability label and examine their implications for ongoing debates about the underlying causes of disproportionality and the IDEA’s focus on individualization. In Part I, I introduce the problem of disproportionality, emphasizing that many scholars understand disability labels like those used by the IDEA as social categories, as well as educational and medical ones. In Part II, I argue that the IDEA’s promise of individualization ultimately allows families with greater resources and cultural capital to secure labels that they understand to be more advantageous and that lead to a superior educational experience. In Part III, I trace the narrow legal path available to plaintiffs who believe they have been mislabeled, finding that courts fail to consider the social context underlying these claims and consequently enable these labels to be weaponized by well-resourced families. Finally, in Part IV, I briefly suggest ways to disentangle the IDEA’s laudable goals of individualization from its effects in practice.