Michael Selmi

The Stigma of Disabilities and the Americans with Disabilities Act

Recently, as I was waiting to board a plane, I heard the gate agent make the following announcement: “If you have a disability and need assistance, please come to the podium at this time.” I had never heard the boarding announcement stated in quite this way before, which seemed to require individuals to declare that they had a disability in order to board the plane earlier than other passengers. It sounded so odd to me and I wondered why the airline felt comfortable placing the requirement in the form of a disability. Surely, they would never have said, “If you are black … or if you are a woman, if you are gay,” or “If you are elderly,” even though the elderly often need boarding assistance. Why, I wondered, did they believe it was acceptable to label someone as disabled? I wanted to go to the podium to express my concern, but as Paul Miller (2007) has noted, I did not even have a vocabulary to express my displeasure. Unlike racism, sexism, homophobia, or ageism, there is no word to describe discriminatory attitudes based on disability. At the time, the best I could come up with was that the airline was being insensitive but that word felt wholly inadequate.

Theorizing Systemic Disparate Treatment Law: After Wal-Mart v. Dukes

In this essay, Professor Selmi assesses the future of systemic discrimination litigation through the lens of the case Wal-Mart Stores, Inc. v. Dukes. First, Professor Selmi traces the history of the disparate treatment class action to demonstrate how that case law was a product of its era and has substantially less resonance for contemporary claims of discrimination. The essay then analyzes the Wal-Mart case particularly focusing on the substantive claim that the plaintiffs put together as a product of the older era of disparate treatment class actions with its emphasis on the underrepresentation of women in the management ranks. The final section emphasizes the need to go beyond statistical analysis to create a narrative of discrimination so as to justify a claim of systemic discrimination.