So I'm not exactly sure where I will end up at the end of my post this week, but I know I wanted to start by giving attention to the idea of being, or remaining, more confrontational.
One of the last ideas we left last week's class with was related to an acknowledgment that we have a system now that is simply not working. At the same time we also recognized that we are at or near a tipping point in the sense that we can change things- but how? Confrontation was the idea we left with.
If I was allowed to do things my way, let's just say that I have a hypothetical issue that I'd like to use confrontation as tool to solve. Why would I like to use confrontation? Well, it is because the law simply isn't working for me in this hypothetical situation.
See, in my hypothetical situation I have client who should be protected by the ADA. Unfortunately, there is nothing I can do because the current interpretation of the law, in the state and circuit in which I am dealing with (hypothetically), is wrong. Without going into all of the facts of my hypothetical, I will just say that it involves an employer's denial of a reasonable accommodation for an applicant.
Now, it seems logical that if an employer violates the ADA by not providing a reasonable accommodation for an applicant, it should be subject to a penalty. The problem I have in my hypothetical situation is that in order to have a case, I have to show that my hypothetical applicant suffered an adverse employment action. In this type of situation, an "adverse action" might be that the applicant was offered a "lesser" job than other applicants, or that the applicant was simply not hired.
Well guess what, neither of those two things happened in my hypothetical situation. The applicant was offered a job, but was not interested in taking it after being denied a reasonable accommodation for the application process. So being that there is no "adverse action" due to the job offer, there is no cause of action for this particular hypothetical plaintiff– it wouldn't be possible to satisfy all of the elements required to state a claim. The courts are split on whether the simple denial of providing a reasonable accommodation creates a cause of action for a potential plaintiff.
The worst part is that a seasoned attorney who works in the particular hypothetical jurisdiction would know this and probably wouldn't advise his or her client (employer) to settle such a matter. So we're left with an employer who did something wrong by technically violating the law (though they would never admit that) and an applicant who was wronged by being denied a reasonable accommodation, but no real remedy for the applicant and no real penalty for the employer. So instead of being served justice in this hypothetical situation, we're being served a sh!t sandwich.
Obviously there are ways to fix this problem, but it would take a very long time– the legal process is a long one. To be honest, I'm pretty sure this is not the type of split in the courts that we would ever see our highest court settle. So, what do we do? I think confrontation (in its many forms) provides, if not the whole, the beginning to the answer to that question.