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Matthew A Stowe - One of the best experts on this subject based on the ideXlab platform.
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interpreting place of Public Accommodation under title iii of the ada a technical determination with potentially broad civil rights implications
Duke Law Journal, 2000Co-Authors: Matthew A StoweAbstract:In response to its finding that approximately forty-three million Americans have one or more mental or physical disabilities, Congress enacted the Americans with Disabilities Act of 1990 (ADA).1 Congress's purposes in enacting the ADA were "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities"2 and to "bring persons with disabilities into the economic and social mainstream of American life."3 To those ends, the protections Congress afforded to the disabled under the ADA extend to numerous aspects of Public life, including employment,4 Public services such as transportation,5 and Public Accommodations.6 Title III of the ADA, the subchapter addressing Public Accommodations, sets forth a general prohibition on discrimination: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,
Joseph William Singer - One of the best experts on this subject based on the ideXlab platform.
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Things Invisible To See: State Action & Private Property
Texas A&M Law Review, 2018Co-Authors: Joseph William Singer, Isaac Saidel-goleyAbstract:This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of Public Accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather than shunned. This Article proposes reinterpreting the state action doctrine to mitigate its historical and contemporary harms. Ultimately, the Authors draw from property law theory to contend that the doctrine should be fundamentally reformed in favor of a more egalitarian conception of the state’s role in ensuring equal protection of law. The insights of property law theory lead the Authors to conclude that: (1) equal protection depends on law, not action; (2) common law is law and, whether it is coercive or permissive, it must comply with the Equal Protection Clause; and (3) common law that allows discriminatory exclusion from the marketplace violates the Equal Protection Clause. What matters, for the purposes of constitutional protection, is not “state action” but whether the law violates the norms of liberty, equality, and dignity recognized by free and democratic societies.
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religious liberty Public Accommodation what would hohfeld say
2017Co-Authors: Joseph William SingerAbstract:Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in Public Accommodations law. Can Public Accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the Public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to Public Accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a Public Accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.
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Religious Liberty & Public Accommodation: What Would Hohfeld Say?
2017Co-Authors: Joseph William SingerAbstract:Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in Public Accommodations law. Can Public Accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the Public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to Public Accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a Public Accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.
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Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations
Theoretical Inquiries in Law, 2017Co-Authors: Joseph William SingerAbstract:May a hotel owner that objects to same-sex marriage on religious grounds refuse to host a same-sex wedding in its ballroom or deny the couple the right to book the honeymoon suite? Do Public Accommodation laws oppress religious dissidents by forcing them to act contrary to their religious beliefs or does discriminatory exclusion threaten equal access to the market economy and deny equal citizenship to LGBTQ persons? Answering these questions requires explaining why one property claim should prevail over another and why one liberty should prevail when it clashes with another. And answering those questions requires analysis of the relationship between property and sovereignty. Sovereign power both creates and regulates the types of property rights that can be tolerated in a free and democratic society that values each person equally. Should we view sovereignty as a threat to property or property as a threat to sovereignty? Libertarians choose the first and liberals the second. But this is the wrong way to understand the relation between property and sovereignty. Property and sovereignty are not separate and independent concepts or spheres of social life that can be brought into relationship with each other. Rather, they are imbricated; they overlap like roof tiles. Our aspiration to live in a free and democratic society places certain constraints on both property and sovereignty. Such societies do not recognize absolute power, whether Public or private. Free and democratic societies are committed to a substantive vision of both social relations and politics. We have fruitful debates about property and sovereignty and, in the end, must construct a legal system that effects an acceptable compromise between access and exclusion in the property regime. Our historic practices regarding racial and other forms of discrimination and our evolving norms suggest that p ublic Accommodation laws enable access to the marketplace without regard to invidious discrimination. Religious freedom cannot operate to deny equal citizenship or opportunity. For that reason, a same-sex couple should not have to call ahead to see if they are welcome to book the honeymoon suite. Public Accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect.
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We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom
Boston University Law Review, 2015Co-Authors: Joseph William SingerAbstract:As part of a symposium celebrating the 50th anniversary of the Civil Rights Act of 1964, this article considers the role of Public Accommodations law in a free and democratic society. Public Accommodations law is fundamental to a society that ensures equal rights of access to both private property and the free market. A society that allows businesses to choose their customers because of race or other factors such as sexual orientation can result in a caste system that is as rigid as any such systems imposed by statutory regulations. That is why a statute that allows businesses to choose customers without limit (such as the law in effect to this day in Mississippi) should be deemed unconstitutional if it enables businesses to engage in invidious discrimination.Racial discrimination remains a significant problem in Public Accommodations today even though it is (almost) universally deplored. We are, however, living through a time when discrimination on the basis of sexual orientation is being vigorously debated and religious reasons for such discrimination are commonplace. Sorting out the rights of patrons versus the rights of businesses requires a full understanding of the role of Public Accommodation law in ensuring that access to social and economic life not be denied on the basis of race or sexual orientation.
Michael Evan Waterstone - One of the best experts on this subject based on the ideXlab platform.
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disability disparate impact and class actions
Duke Law Journal, 2006Co-Authors: Michael Ashley Stein, Michael Evan WaterstoneAbstract: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.
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The Untold Story of the Rest of the Americans with Disabilities Act
Vanderbilt Law Review, 2005Co-Authors: Michael Evan WaterstoneAbstract:Nearing the fifteenth birthday of the Americans with Disabilities Act ("ADA"), most commentators believe that its overall effects have been disappointing. By this point, there is a standard set of explanations for the ADA's failures: the Supreme Court's limiting decisions relating to the definition of disability, the limits of antidiscrimination law, and the economic failures of the Accommodation mandate. These explanations come with corresponding recommendations for disability law reform. This Article challenges the assumption, nearly universal until now, that these explanations and recommendations apply equally to the entire ADA. This Article argues that these explanations are based on an employment law-dominated (Title I) narrative, and are incomplete and/or incorrect when applied to the ADA's two other major parts (Title II, relating to Public services, and Title III, relating to places of Public Accommodation). Through a first-ever descriptive quantitative analysis of Title II and III cases, this Article shows that these cases - unlike Title I cases - fare relatively well in the courts compared with other civil rights statutes. This Article suggests that the major issue confronting Titles II and III is underenforcement at the private and Public levels, and concludes with a discussion of how to strengthen those enforcement mechanisms.
James M Gottry - One of the best experts on this subject based on the ideXlab platform.
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just shoot me Public Accommodation anti discrimination laws take aim at first amendment freedom of speech
Vanderbilt Law Review, 2011Co-Authors: James M GottryAbstract:INTRODUCTION: A PICTURE IS WORTH 1,000 WORDS, OR $6,637.94 962 I. HISTORY OF Public Accommodation LAWS AND THE FIRST AMENDMENT 965 A. Accommodation to Domination: The Growth of Public Accommodation Anti-Discrimination Laws 965 B. Free Speech: Some Restrictions May Apply, See Your State for Details 968 1. First Amendment Protection Extends to Corporate Speakers 968 2. Expressive Activity Falls Under the Protection of the First Amendment 970 3. "Free Speech" Also Applies to Those Things You Choose Not to Express 971 C. Key Cases Examining the Clash Between Public Accommodation Laws and Free Speech 971 1. Follow the Parade: Supreme Court Precedent Says Free Speech Comes First 972 2. Other Supreme Court Cases Support the Analysis in Hurley and Wooley 975 3. The Inapplicability of O'Brien to Elane Photography and Similar Cases 978 II. PROTECTED ARTISTIC EXPRESSION, OR PROHIBITED DISCRIMINATION? 978 A. A Snapshot of Elane Photography as It Develops 978 B. First Amendment v. Anti-Discrimination: The Price Is Wrong 980 1. Public Accommodation Analysis 981 a. When Is an Entity Correctly Deemed a Public Accommodation? .... 981 b. When Is the Public Accommodation Law Actually Violated? 983 2. First Amendment Analysis 985 a. Is the Activity Sufficiently Expressive? 985 b. Was the Entity Compelled to Speak? 987 c. Is the Entity Simply a Conduit for Its Clients' Speech? 989 d. May the Entity Easily Disclaim the Message of Its Speech? 990 3. A Spectrum of Expressive Activity 991 C. Focusing: The Appropriate Level of Scrutiny 993 1. Strict Scrutiny 993 2. Intermediate Scrutiny 995 ill. Solution: Framing the Picture 996 A. Legislative Changes 997 B. Changes in the Courts 999 1. When "Discrimination" Is Simply a Refusal to Endorse a Message 999 2. Measuring the Expressiveness 1000 3. Political Speech: It's Not Just for Politicians 1001 4. Applying Hurley to Balance Competing Interests 1002 Conclusion 1002 INTRODUCTION: A PICTURE IS WORTH 1,000 WORDS, OR $6,637.94 Imagine a young woman, Elaine, who is a gifted photographer. She launches a small photography business with her husband, and soon she is in demand throughout the state. Her specialty is weddings. One day Elaine receives a request to photograph a same-sex commitment ceremony. Politely, she declines, explaining that she only photographs traditional weddings. Several months later, she is contacted by the state's Human Rights Commission. Elaine learns that a complaint has been filed against her, and she is being charged with discrimination on the basis of sexual orientation. …
Michael Ashley Stein - One of the best experts on this subject based on the ideXlab platform.
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Integrating the Internet
2014Co-Authors: Bradley A. Areheart, Michael Ashley SteinAbstract:This Article argues that the paradigmatic right of people with disabilities “to live in the world” naturally encompasses the right “to live in the Internet.” It further argues that the Internet is rightly understood as a place of Public Accommodation under antidiscrimination law. Because Public Accommodations are indispensable to integration, civil rights advocates have long argued that marginalized groups must have equal access to the physical institutions that enable one to learn, socialize, transact business, find jobs, and attend school. The Web now provides all of these opportunities and more, but people with disabilities are unable to traverse vast stretches of its interface. This virtual embargo is indefensible, especially when one recalls that the entire Web was constructed over the last twenty-five years and is further constructed every day. Exclusion from the Internet will cast an even wider shadow as an aging U.S. population with visual, hearing, motor, and cognitive impairments increasingly faces barriers to access. Unless immediate attention is given, the virtual exclusion of people with disabilities — and others, such as elders and non-native English speakers — will quickly overshadow the ADA’s previous achievements in the physical sphere.Accordingly, this Article develops the claim that the Internet is a place of Public Accommodation, which must be integrated, by showing that the same concerns that motivated access for African Americans under the Civil Rights Act of 1964 now compel Web accessibility for people with disabilities under the Americans with Disabilities Act. The issue is, however, even more pressing because the Internet is broad enough to encompass all of the traditional categories of Public Accommodations — as well as social arenas like education and work. In this way, access to the Internet provides an unprecedented opportunity to overcome attitudinal barriers, because almost all people now interact frequently through the Web. Moreover, because disabilities are not apparent online, the Internet facilitates the social engagement of people who might not otherwise interact. Finally, Internet accessibility provokes reconsid- eration of the constitutional rights of individuals with disabilities. Integrating the Internet will advance — instead of infringe upon — their rights to democratic self-governance, personal autonomy, and self-expression.
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disability disparate impact and class actions
Duke Law Journal, 2006Co-Authors: Michael Ashley Stein, Michael Evan WaterstoneAbstract: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.