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 that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven 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. Moreover, the class action device has been virtually nonexistent 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 in which 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 on challenging race- and sex-based discrimination.
The Duke Law Journal is published six times per year, in October, November, December, February, March, and April, at the Duke University School of Law. The journal is among the most prestigious and influential legal publications in the country. Edited by a student board, approximately one-third of each issue's contents consists of student notes dealing with current legal developments, with the remaining content being devoted to articles and comments by professors and practitioners. Generally one issue each year is devoted to administrative law and often another issue is in the form of a symposium.
Duke Law School was established as a graduate and professional school in 1930. Its mission is to prepare students for responsible and productive lives in the legal profession. As a community of scholars, the Law School also provides leadership at the national and international levels in efforts to improve the law and legal institutions through teaching, research, and other forms of public service. Although Duke University is young by comparison to other major American universities, its academic programs and professional schools together have attained an international stature and a reputation for quality and innovation that few universities can match. Among the Law School's unique strengths are an extensive network of interdisciplinary collaboration across the Duke campus and an emphasis in teaching and research initiatives addressing global and international issues.