Richmond Journal of Law and Technology

The first exclusively online law review.

Month: December 2017

Can an Employer Fire You If You Sit on Facebook Too Much?

By: Daria Ivanova,

In 1990, Congress enacted Americans with Disabilities Act with a purpose to protect individuals with disabilities from workforce discrimination.[1]  The ADA was a successor to the Rehabilitation Act of 1973, which was the first attempt of Congress to fill the gap in the Civil Rights Act of 1964, in relation to discrimination based on a “physical or mental impairment.”[2] However, the Rehabilitation Act’s reach was limited to only employers “receiving Federal financial assistance,”[3] and the ADA eliminated this limitation covering other employers as well.[4] Congress experienced difficulties in defining a “disability” when enacting the Rehabilitation Act, but the definition they settled on was essentially incorporated into the ADA. The ADA defines a “disability” as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment.”[5] In order for a plaintiff to prove disability discrimination, he or she must show that: (1) the employer is an entity covered by the ADA; (2) the plaintiff meets the definition of “disabled” under the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions of his or her job, with or without reasonable accommodation; and (4) the plaintiff suffered adverse employment action based on the disability.[6]

Following the enactment of the ADA, the Equal Employment Opportunity Commission (EEOC) and the Supreme Court of the United States limited the application of the Act by narrowing the definition of a “disability.” The formerly defined “substantially limits” as “(i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner duration under which an individual can perform a particular major life activity.”[7] The Supreme Court did a similar thing in the case Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and Sutton v. United Air Lines, Inc. In the first case, the Court found that for the impairment to be debilitating to the ADA level, it must “prevent[] or severely restrict[] the individual from doing activities that are of central importance to most people’s daily lives.”[8] In the second case, the Court limited the meaning of the phrase “regard as” in the last prong of the statute. The Court stated that it required “an ADA plaintiff to show that the  employer regarded the plaintiff as having an impairment that substantially limited a major life function, as opposed to merely showing that the employer regarded the plaintiff as having an impairment.”[9] However, in 2008, Congress pushed back by introducing the ADA Amendments Act (“ADAAA”) with the purpose of “restoring the intent and protections of the Americans with Disabilities Act of 1990,” [because] “the holdings of the Supreme Court [in Sutton and Toyota] have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” [10] Moreover, the ADAAA stated that the definition of a disability was to be interpreted in the broadest extent allowed by the Act and covering the broadest coverage of individuals.[11]

As surprising as it may seem, scientists still cannot come to an agreement as to the definition of an addiction. Moreover, it has been said that the state of scientific discussion regarding the definition is in a state of “conceptual chaos.”[12] For example, the APA’s Diagnostic and Statistical Manual of Mental Disorders (“DSM IV-TR”) does not even use the word “addiction,” but uses “substance dependence” defining it as “[a] maladaptive pattern of substance use, leading to clinically significant impairment or distress,” and setting forth seven criteria to aid in diagnosis.”[13] Traditionally, the state of an addiction (even though there was no agreement as to its definition) was said to consist of two elements of (1) tolerance and (2) withdrawal. The first one “refers to the tendency of a given dosage of a substance to be less successful in achieving the desired effect over time.”[14] The second one presents itself by “physiological side effects that result from the cessation of repeated use of a substance.”[15] Simply stated, when the body is exposed to a potent drug, it maintains the balance through counter-regulatory mechanisms; for example, in reaction to alcohol, which is a depressant, the body produces more stimulants.[16] These two factors are often elaborated by other, behavioral, factors indicating the person’s relationship to the drug.[17]

As early as 1990, researchers started discussing the idea that addiction might not only include the substance abuse, but also certain excessive behavior, such as shopping, Internet use, and sex addictions.[18]  The latest Diagnostic and Statistical Manual of Mental Disorders (DSM-5) did not include behavioral disorders, except for gambling, but recommended them for further research.[19] Two of the theories which support the idea of including behavioral addiction are (1) the “dopamine theory” and (2) “the looks-like addiction theory.” The “dopamine theory” rationalizes behavioral addiction  because it “corresponds with activity in the brain’s reward circuitry similar to that which occurs during drug use.” [20] The “looks-like-addiction theory” bases its conclusion on the fact that “the relationship between an individual and the behavior looks like the relationship between an individual and a drug because both involve craving, excessive use, withdrawal, tolerance, and continuation despite negative repercussions.”[21]

Within the framework of ADA, Internet addiction started to be widely discussed after Congress expressly stated its willingness to apply the ADA on as many cases as permitted by the text of the Act. Additionally, courts have held that once a health professional diagnoses a mental health condition, this condition can count as an “impairment” under the ADA.[22] The regulations proposed by the EEOC to implement the ADAAA included “major depression, bipolar disorder, [and] PTSD.”[23] For example, in order for a plaintiff to be able to make a case under the ADA, he would have to bring an expert testifying that Internet addiction is a mental health condition which substantially limits one or more major life activities of a plaintiff, such as not allowing a plaintiff to interact with other people due to prolonged Internet usage. This scenario in the example does not seem too crazy. The plaintiff in Pacenza v. IBM Corp. tried to link his “long-standing Internet sexual addiction” to PSTD he suffered after the Vietnam War and sexual abuse he suffered as a child.[24] Pacenza’s job did not require his utmost attention all of the time, and one of the ways he filled his time was participating in sexually-explicit chat rooms.[25] Pacenza received a warning after the first time, but, subsequently, his supervisor caught him again and discharged Pacenza.[26] Pacenza sued IBL claiming protection under the ADA because his PTSD “manifested through various addictive behaviors including ‘Internet sex addiction.’”[27] The U.S. District Court for the Southern District of New York granted summary judgement to IBM, but based its decision on the fact that Pacenza’s supervisor did not know about his PTSD; thus, the court neither completely foreclosed, nor validated the ability of prevailing in the ADA suit based on a behavioral addiction. As society gets more technologically dependent, it seems fairly certain that these arguments could potentially become more prevalent and more accepted by the courts.


[1] Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2(a), 104 Stat. 327, 328-29 (codified as amended at 42 U.S.C. § 12101(a) (2006)).

[2] 42 U.S.C. § 12102(1)(A) (Supp. II 2008).

[3] Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355, § 504 (codified as amended in scattered sections of 29 U.S.C.).

[4] See 42 U.S.C. § 12111(5)(A) (2006) (“The term ‘employer’ means a person engaged in an industry affecting commerce who has 15 or more employees….”).

[5] See Rehabilitation Act Amendments of 1974, Pub. L. No. 93-516, § 111(a), 88 Stat. 1617, 1619.

[6] Behavioral Addictions and the Law.

[7] 29 C.F.R. § 1630.2(j)(1) (2010).

[8] Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).

[9] BEHAVIORAL ADDICTIONS AND THE LAW, 84 S. Cal. L. Rev. 161, 180-181 (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 493 (1999)).

[10] Id. (citing ADA Amendments Act, Pub. L. No. 110-325, 122 Stat. 3553, §2(a)(4) (codified in scattered sections of 28 and 42 U.S.C.).

[11] ADA Amendments Act § 3(4)(A).

[12] Howard J. Shaffer, The Most Important Unresolved Issue in the Addictions: Conceptual Chaos, 32 Substance Use & Misuse 1573, 1574 (1997).

[13] Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev. 2000).

[14] BEHAVIORAL ADDICTIONS AND THE LAW, supra note 9, at 165.

[15] Id.

[16] Nathanael J. McKeown & Patrick L. West, Withdrawal Syndromes, eMedicine, (last updated Aug. 12, 2016).

[17] Hanan Frenk & Reuven Dar, A Critique of Nicotine Addiction 30-32 (2000); Shaffer, supra note 7, at 1577 (“It is the relationship of the addicted person with the object of their excessive behavior that defines addiction.”).

[18] See, e.g., Isaac Marks, Behavioural (Non-Chemical) Addictions, 85 Brit. J. Addiction 1389, 1389 (1990).

[19] Anita Everett, Can You be Addicted to the Internet?, American Psychiatric Association (Jul. 20, 2016)

[20] See Jerald J. Block, Issues for DSM-V: Internet Addiction, 165 Am. J. Psychiatry 306, 306 (2008).

[21] Id.

[22] Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009).

[23] Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 74 Fed. Reg. at 48,441.

[24] See Pacenza v. IBM Corp., No. 04 Civ. 5831 (PGG), 2009 U.S. Dist. LEXIS 29778, at 2 (S.D.N.Y. Apr. 2, 2009).

[25] Id.

[26] Id. at 9, 17.

[27] Id. at 30.

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You’re Autonomous, Your Car Should Be Too

By: Lilias Gordon,

A professor in class today told us he doesn’t think his kids will ever learn to drive. My first reaction was incredulous, thinking back to the week before my sixteenth birthday when I preemptively took drivers ed. Driving myself meant life altering freedom. Self-driving cars, this is the reason my professor gave for thinking his two-year-old, growing up in Virginia, will never need to drive himself.

Self-driving cars will likely trigger novel legal issues that will be sorted out using tort law. However, if self-driving cars become common, this technology may impact criminal law in a way that probably will not have such an easy answer.

A central theme for tort cases will likely be untangling who is at fault when a self-driving car is in an accident.[1] For example, if a car is partly self-driving but requires human overriding during an accident, identifying who is liable and what caused the accident may be very difficult. In this scenario, one problem may be determining whether the car gave adequate warning to the driver before the crash.[2] Or, perhaps the owner failed to maintain the car, declining to install appropriate updates.

Complicating the situation, a self-driving car will have a plethora of complicated parts, manufactures, and data providers. Diagnosing what went wrong to cause an accident may be incredibly difficult as cars use more new technology. A single crash may implicate dozens of possible defendants;[3] this starts to sound more like particularly vexing civil procedure exam question.

So, here’s the more interesting criminal law question: how will self-driving cars impact the 4th Amendment? First, suppose Lyft and Uber develop autonomous cars and their use becomes ubiquitous. These companies keep detailed records of trips, showing where and when a person traveled as well as which roads were taken.[4] This information has traditionally been viewed as your garden variety business record belonging to the company,[5] but using this information at trial has the potential to be a warrantless search, violating the 4th Amendment.

The Supreme Court is set to hear oral argument discussing this exact issue on November 29, 2017, in a case called Carpenter v. United States.[6] Defendants were convicted of nine counts of armed robbery. At trial, the government used evidence of Defendant’s cell phone records to show they were using their phones within two miles of the robberies.[7] The 6th Circuit held that the government may use cell phone records in order to place a suspect at the scene of a crime.[8] If self-driving cars become the norm, transportation companies may be able to generate a massive amount of information about where people are and when. If you found “checking in” on Facebook creepy, buckle up.

The Supreme Court may reverse the Sixth Circuit and hold that police officers cannot accessed your cell phone (or possibly Uber) records for a criminal investigation unless they have a warrant.  However, there is still a question of whether this information will also be protected from advertisers. Google has invested heavily in developing self-driving cars; they also generate much of their revenue through advertising.[9] One possible scenario that has been suggested is a company, let’s suppose it’s Krispy Kreme, has paid the company that navigates your self-driving car to advertise their product.[10] On a road trip, your car is now motivated to suggest you take the next exit for a doughnut.[11] A much more invasive example might be a car that continues to drive a recovering alcoholic past her favorite bar.[12]

A second possible criminal law implication for self-driving cars may actually be a really good thing for society. The Supreme Court has held that police officers are allowed to pull over drivers for minor driving infractions regardless of the real reason they may want investigate a car.[13] The classic example of a pretextual traffic stop is when a police officer pulls a driver over for not using a turn signal as an excuse to search a car for drugs. This practice has incited much criticism because pretextual traffic stops are used to target drivers based on race.[14] Consider, self-driving cars may be programed to perfectly comply with traffic law. This may eliminate a police officer’s ability to patrol a predominantly black neighborhood with the intention of using traffic violations to conduct a drug search. Certainly, without traffic tickets, there may be a whole new problem of funding local government, but it’s hard to argue with less racial profiling.

My initial reaction to my professor’s comment about his kids never learning to drive— that this an outright efface to the freedom every sixteen-year-old should have — could not have been more off base. Consider this, Virginia Tech just unveiled four new expansions to its Smart Road test site to simulate city and residential environments.[15] Yes, Virginia Tech has a two-mile, two-lane loop for conducting test on autonomous car technology. I didn’t know about it either until I heard an NPR story on the drive home that explained it like this. The industry of autonomous cars is developing fast and soon we will have technology that is capable of making people more autonomous themselves. If an elderly man wants to go to the store or run other errands but no longer feels comfortable driving, autonomous cars give him the freedom.


[1] Damien Riehl, Car Minus Driver, Part II, 73 J. Mo. B. 264, 266 (2017).

[2] Id. at 265.

[3] Bryant Walker Smith, Tesla and Liability, The Center for Internet and Society at Stanford Law School, (May 20, 2015).

[4] Orin Kerr, How Self-Driving Cars Could Determine the Future of Policing, Wash. Post (Jun. 16, 2017)

[5] Id.

[6] Carpenter v. United States, 810 F.3d 880 (6th Cir. 2016), cert. granted 85 U.S.L.W 3569 (Jun. 5, 2017) (No. 16-402).

[7] Id. at 884.

[8] Id.

[9] Riehl, supra note 1, at 290.

[10] Patrick Lin, What If Your Autonomous Car Keeps Routing you Past Krispy Kreme?, The Center for Internet and Society at Stanford Law School (Jan. 22, 2014)

[11] Id.

[12] Id.

[13] Whren v. United States, 517 U.S. 806, 815 (1996).

[14] See generally David Harris, Driving While Black, and All Other Traffic Offenses: The Supreme Court Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997).  

[15] Robbie Harris, Smarter “Smart Road” Paves the way for Driverless Vehicles, Radio IQ WVTF (November 16, 2017) (Quoting Center of Public Police head Myra Blanco)

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