The disability kaleidoscope

Notre Dame Law Review

Volumn 74, Issue 3, 1999, Pages 621-716

  Crossley, Mary ^a,b,c  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF VIRGINIA   (United States)

^c VANDERBILT UNIVERSITY   (United States)

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EID: 0033439214     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (438)

1. Pub. L. No. 101-336, 104 Stat. 327-33 (codified at 42 U.S.C. §§ 12101-13 (1990)).
2. "It is the purpose of this chapter to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101 (b)(1) (1994).
3. The law states: No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a) (1994).
4. See 42 U.S.C. §§ 12101-17 (1994) (prohibiting in Title I discrimination by private employers); §§ 12131-50 (prohibiting in Title II discrimination by public services and public entities); §§ 12181-89 (prohibiting in Title III discrimination by public accommodations and services operated by private entities).
5. See 29 U.S.C. § 794 (1994).
6. See 42 U.S.C. § 12112(b)(5)(A) (1994) (providing that covered employers must make "reasonable accommodations" for individuals with disabilities so long as such accommodation does not constitute an "undue hardship"); cf. § 12131 (2) (referring to reasonable modifications in defining "qualified individual with a disability"); § 12182(b)(2)(A) (making it discriminatory for public accommodations to fail to make reasonable modifications in order to extend goods and services or make available facilities to individuals with disabilities).
7. See § 12182(b) (1) (A) (iii) (making it discriminatory to provide individuals with disabilities an accommodation different or separate from that provided to others unless necessary to ensure equal opportunity for those with disabilities).
8. See § 12182(b) (2) (A) (i) (making it discriminatory for public accommodations to use eligibility criteria that have a disparate impact on individuals with disabilities).
9. For a discussion of the definition employed by the Rehabilitation Act, see infra text accompanying notes 55-65.
10. See 42 U.S.C. § 12201(a) (1994): "Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. § 790 et seq.) or the regulations issued by Federal agencies pursuant to such title."
11. See Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1132 n.2 (11th Cir. 1996) ("Congress intended for courts to rely on Rehabilitation Act cases when interpreting similar language in the ADA.").
12. When Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984), was decided, the court noted that, more than ten years following the enactment of the Rehabilitation Act, only one court had previously found a plaintiff under section 504 not to be handicapped. See id. at 745.
13. Morrow v. City of Jacksonville, 941 F. Supp. 816, 823 n.3 (E.D. Ark. 1996).
14. See Interview with Ruth Colker, National Public Radio, All Things Considered (Mar. 30, 1998) (transcript available in Westlaw ATCON database).
15. ADA Title I provisions became effective, first for employers with 25 or more employees after July 26, 1992, then for employers with fifteen or more employees after July 25, 1994. See 29 C.F.R. § 1630.2(e)(1) (1998). Employers with fewer than fifteen employees are exempt from ADA coverage. See id. Claimants under Title I of the ADA must adhere to the administrative procedures outlined in Title VII. 42 U.S.C. §12117(a) (1994). If the claimant lives in a state that has its own equal employment legislation, and its own agency to administer that legislation, he must first file a charge with that state agency. The state then has 60 days of exclusive jurisdiction over that claim. See § 2000e-5(c). If the state agency does not act on the charge, or terminates its jurisdiction for any reason, the claimant may then file his charge with the EEOC. See § 2000e-5(d). The EEOC then has 180 days of exclusive jurisdiction over the charge. See § 2000e-5(e)(1). Upon the expiration of that 180-day period, the claimant may request a "notice-of-right-to-sue" from the EEOC. At this point, the claimant may file his own private suit against the employer. See § 2000e-5(f)(1). Thus, it may take at least 240 days from the time the claim is made until a lawsuit is filed. In September of 1977, the EEOC issued 29 C.F.R. § 1601.28(a)(2), authorizing the issuance of right-to-sue letters before the expiration of the statutory 180-day period if the EEOC determined that it would be unable to investigate the claim within that 180-day period. By 1996, citing a huge backlog of charges, the EEOC informally instituted a policy of issuing an early right-to-sue letter automatically when a charging party so requests. See King F. Tower, EEOC Changes "Right-to-Sue" Policy Amidst Legal Challenges, VA. EMPLOYMENT L. LETTER, July 1996. Thus, a "charging party may theoretically file an EEOC charge one day and successfully demand a right-to-sue letter the next." Id. However, some courts have held that the issuance of an early right-to-sue letter may deprive the court of its jurisdiction, and thus render the claim invalid. See, e.g., Pearce v. Barry Sable Diamonds, 912 F. Supp. 149 (E.D. Pa. 1996) (certifying to the United States Court of Appeals for the Third Circuit the question of whether 29 C.F.R. § 1601.28 (a) (2) authorizing the issuance of early right-to-sue letters is a valid regulation). Though the practice continues to be challenged in the courts, the EEOC maintains its unofficial policy of granting early right-to-sue letters upon request.
16. ADA Title I provisions became effective, first for employers with 25 or more employees after July 26, 1992, then for employers with fifteen or more employees after July 25, 1994. See 29 C.F.R. § 1630.2(e)(1) (1998). Employers with fewer than fifteen employees are exempt from ADA coverage. See id. Claimants under Title I of the ADA must adhere to the administrative procedures outlined in Title VII. 42 U.S.C. §12117(a) (1994). If the claimant lives in a state that has its own equal employment legislation, and its own agency to administer that legislation, he must first file a charge with that state agency. The state then has 60 days of exclusive jurisdiction over that claim. See § 2000e-5(c). If the state agency does not act on the charge, or terminates its jurisdiction for any reason, the claimant may then file his charge with the EEOC. See § 2000e-5(d). The EEOC then has 180 days of exclusive jurisdiction over the charge. See § 2000e-5(e)(1). Upon the expiration of that 180-day period, the claimant may request a "notice-of-right-to-sue" from the EEOC. At this point, the claimant may file his own private suit against the employer. See § 2000e-5(f)(1). Thus, it may take at least 240 days from the time the claim is made until a lawsuit is filed. In September of 1977, the EEOC issued 29 C.F.R. § 1601.28(a)(2), authorizing the issuance of right-to-sue letters before the expiration of the statutory 180-day period if the EEOC determined that it would be unable to investigate the claim within that 180-day period. By 1996, citing a huge backlog of charges, the EEOC informally instituted a policy of issuing an early right-to-sue letter automatically when a charging party so requests. See King F. Tower, EEOC Changes "Right-to-Sue" Policy Amidst Legal Challenges, VA. EMPLOYMENT L. LETTER, July 1996. Thus, a "charging party may theoretically file an EEOC charge one day and successfully demand a right-to-sue letter the next." Id. However, some courts have held that the issuance of an early right-to-sue letter may deprive the court of its jurisdiction, and thus render the claim invalid. See, e.g., Pearce v. Barry Sable Diamonds, 912 F. Supp. 149 (E.D. Pa. 1996) (certifying to the United States Court of Appeals for the Third Circuit the question of whether 29 C.F.R. § 1601.28 (a) (2) authorizing the issuance of early right-to-sue letters is a valid regulation). Though the practice continues to be challenged in the courts, the EEOC maintains its unofficial policy of granting early right-to-sue letters upon request.
17. See Catherine A. Lanctot, Ad Hoc Decision Making and Per Se Prejudice: How Individualizing the Determination of "Disability" Undermines the ADA, 42 VILL. L. REV. 327, 328 (1997) (stating that as ADA filings increase in numbers, federal courts have grown hostile to disability discrimination claims); Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans with Disabilities Act, 68 U. COLO. L. REV. 107, 112-14 (1997) (explaining why and how employers have increasingly challenged the disability status of plaintiffs and the courts' response).
18. See Catherine A. Lanctot, Ad Hoc Decision Making and Per Se Prejudice: How Individualizing the Determination of "Disability" Undermines the ADA, 42 VILL. L. REV. 327, 328 (1997) (stating that as ADA filings increase in numbers, federal courts have grown hostile to disability discrimination claims); Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability Under the Americans with Disabilities Act, 68 U. COLO. L. REV. 107, 112-14 (1997) (explaining why and how employers have increasingly challenged the disability status of plaintiffs and the courts' response).
19. 42 U.S.C. § 12102(2) (A) (1994). As will be discussed in greater depth in Part II, the ADA also protects persons who have a history of such an impairment or who are regarded as having such an impairment. See §12102(2) (B)-(C).
20. See Arnold v. United Parcel Serv., Inc., 136 F.3d 854 (1st Cir. 1998) ("The statute does not itself define the terms 'impairment,' 'substantially limits,' or 'major life activity,' all of which could have more than one meaning. . . . [E]ven as to the 'ordinary or natural meanings' of the ADA's words, reasonable minds can differ. . . .").
21. See, e.g., MacDonald v. Delta Airlines, 94 F.3d 1437, 1443 (10th Cir. 1996); Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 882 (6th Cir. 1996); Taylor v. Principal Fin. Group, 93 F.3d 155, 162 (5th Cir. 1996); Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1132 (11th Cir. 1996).
22. In other words, a plaintiff who has diabetes cannot simply cite to a prior decision as establishing precedent that diabetes is a disability. Instead, he must prove that his diabetes is an impairment that substantially limits one or more of his major life activities. See, e.g., Homeyer v. Stanley Tulchin Assocs., 91 F.3d 959, 962 (7th Cir. 1996); Ennis v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995).
23. In other words, as Robert Burgdorf points out, statutes prohibiting discrimination based on race or sex protect all persons, not simply some protected class, from discrimination on these bases. See Robert L. Burgdorf, Jr., "Substantially Limited" Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 VILL. L. REV. 409, 423-24 (1997). By contrast, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (1994), does create a protected class of persons over the age of 40. See § 631 (a). Determining whether a plaintiff falls within that protected class, however, is quite straightforward. Burgdorf argues that the ADA's prohibition of discrimination based on disability should be understood, like Title VII's prohibition of race or sex discrimination, as protecting everyone from discrimination based on the forbidden ground. See Burgdorf, supra, at 568-72. While well taken, Burgdorf's point does not address the fact that, in order to claim the ADA's protection, a plaintiff must prove that he satisfies at least one prong of the broad statutory definition of individual with a disability.
24. See infra text accompanying notes 226-28 for a discussion of the dynamic nature of disability.
25. See Ivaniuc v. Hauer Knitting Mills, Inc., No. 94 CV 5909(JS), 1998 WL 57077, at *1 (E.D.N.Y. Feb. 5, 1998).
26. See Robinson v. Bankers Life and Cas. Co., 899 F. Supp. 848 (D.N.H. 1995).
27. See Malewski v. Nationsbank of Florida, 978 F. Supp. 1095 (S.D. Fla. 1997).
28. See, e.g., Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (relying on the plain language of the ADA, on regulations issued under the Rehabilitation Act, on regulations and administrative guidelines issued by agencies administering the ADA, and on precedent interpreting the Rehabilitation Act and the ADA).
29. See LENNARD J. DAVIS, ENFORCING NORMALCY: DISABILITY, DEAFNESS, AND THE BODY xii (1995); cf. SIMI LINTON, CLAIMING DISABILITY: KNOWLEDGE AND IDENTITY 147 (1998) (asserting that the liberal arts "have barely noticed disability").
30. See LENNARD J. DAVIS, ENFORCING NORMALCY: DISABILITY, DEAFNESS, AND THE BODY xii (1995); cf. SIMI LINTON, CLAIMING DISABILITY: KNOWLEDGE AND IDENTITY 147 (1998) (asserting that the liberal arts "have barely noticed disability").
31. See Peter Monaghan, Pioneering Field of Disability Studies Challenges Established Approaches and Attitudes, CHRON. OF HIGHER EDUC., Jan. 23, 1998, at A15. Simi Linton describes the field of inquiry known as disability studies as follows: Disability studies takes for its subject matter not simply the variations that exist in human behavior, appearance, functioning, sensory acuity, and cognitive processing but, more crucially, the meaning we make of those variations. The field explores the critical divisions our society makes in creating the normal versus the pathological, the insider versus the outsider, or the competent citizen versus the ward of the state. It is an interdisciplinary field based on a sociopolitical analysis of disability and informed both by the knowledge base and methodologies used in the traditional liberal arts, and by conceptualizations and approaches developed in areas of the new scholarship. Disability studies has emerged as a logical base for examination of the construction and function of "disability." These scholarly explorations and the initiatives undertaken by the disability rights movement have resulted in new paradigms used to understand disability as a social, political, and cultural phenomenon. LINTON, supra note 27, at 2.
32. Id. at 143; cf. Susan M. Wolf, Beyond "Genetic Discrimination": Toward the Broader Harm of Geneticism, 23 J.L. MED. & ETHICS 345, 345 (1995) (challenging the assumption with respect to genetic differences).
33. Id. at 143; cf. Susan M. Wolf, Beyond "Genetic Discrimination": Toward the Broader Harm of Geneticism, 23 J.L. MED. & ETHICS 345, 345 (1995) (challenging the assumption with respect to genetic differences).
34. Several notable exceptions can be found. See, e.g., Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal legislation and Social Policy for People with Disabilities, 40 UCLA L. REV. 1341 (1993); Harlan Hahn, Feminist Perspectives, Disability, Sexuality and Law: New Issues and Agendas, 4 S. CAL. REV. L. & WOMEN'S STUD. 97 (1994); Paul K. Longmore, Medical Decision Making and People with Disabilities: A Clash of Cultures, 23 J.L. MED. & ETHICS 82 (1995).
35. Several notable exceptions can be found. See, e.g., Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal legislation and Social Policy for People with Disabilities, 40 UCLA L. REV. 1341 (1993); Harlan Hahn, Feminist Perspectives, Disability, Sexuality and Law: New Issues and Agendas, 4 S. CAL. REV. L. & WOMEN'S STUD. 97 (1994); Paul K. Longmore, Medical Decision Making and People with Disabilities: A Clash of Cultures, 23 J.L. MED. & ETHICS 82 (1995).
36. Several notable exceptions can be found. See, e.g., Jonathan C. Drimmer, Cripples, Overcomers, and Civil Rights: Tracing the Evolution of Federal legislation and Social Policy for People with Disabilities, 40 UCLA L. REV. 1341 (1993); Harlan Hahn, Feminist Perspectives, Disability, Sexuality and Law: New Issues and Agendas, 4 S. CAL. REV. L. & WOMEN'S STUD. 97 (1994); Paul K. Longmore, Medical Decision Making and People with Disabilities: A Clash of Cultures, 23 J.L. MED. & ETHICS 82 (1995).
37. 118 S. Ct. 2196 (1998).
38. See H.R. Doc. No. 76-110, at 7-8 (1939).
39. See S. Doc. No. 80-1621 (1948). For a detailed accounting of the development of the disability insurance program, see DEBORAH A. STONE, THE DISABLED STATE 68-84 (1984).
40. H.R. Doc. No. 76-110, at 6.
41. 42 U.S.C. § 423(d)(1)(A) (1995).
42. See § 423(d)(5). The 1967 amendments to the statutory definition of disability attempted to make it even more objective, requiring that the impairment stem from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." § 423 (d) (3).
43. § 423(d)(2)(A) (1995). The Commissioner of Social Security issues regulations quantifying "substantially gainful work." § 423(d)(4) (1995). As of 1997, an individual earning more than $500 per month from employment would not qualify as "disabled" for the purposes of the SSA. See 20 C.F.R. § 404.1574(b)(2)(vii) (1997). The statute, however, does provide that the amount of earnings used to calculate whether an individual is "disabled" shall not include any amount needed to provide services, devices, and drugs necessary to control the disabling condition, within "reasonable limits." 42 U.S.C. §423 (d) (4). For an examination of the boundaries of the disability category under the statute, see Matthew Diller, Entitlement and Exclusion: The Role of Disability in the Social Welfare System, 44 UCLA L. REV. 361 (1996).
44. 42 U.S.C. § 423(d)(2)(A) (1995). By contrast, the Social Security Administration cannot consider whether eligible work exists in the region in which the claimant resides, or whether the claimant might face obstacles to being hired because of employer assumptions or stereotypes about his impairment.
45. See § 423(d)(1)(A).
46. See Matthew Diller, Dissonant Disability Policies: The Tensions Between the Americans with Disabilities Act and Federal Disability Benefit Programs, 76 TEX. L. REV. 1003, 1015-16 (1998).
47. For a description of federal rehabilitation legislation predating the Rehabilitation Act, see Drimmer, supra note 30, at 1364-71.
48. See S. REP. No. 93-318 (1973), reprinted in 1973 U.S.C.C.A.N. 2086, 2092.
49. See id.; see also 29 U.S.C. § 706(15)(A)(U) (1995) (defining severe handicap).
50. See S. REP. No. 93-318 (1973), reprinted in 1973 U.S.C.C.A.N. 2086, 2095.
51. See id. at 2092.
52. See id. at 2092-93.
53. Pub. L. No. 93-112, § 504, 87 Stat. 394 (codified as amended at 29 U.S.C. § 794 (1994)).
54. See S. REP. No. 93-318 (1973), reprinted in 1973 U.S.C.C.A.N. 2086, 2092.
55. 29 U.S.C. § 706 (8) (A) (i) (1995).
56. § 706 (8) (A) (ii).
57. In fact, the definition reflects a concession to President Nixon, who, in his veto message for a 1972 version of the bill, resisted shifting the legislation's focus away from vocational rehabilitation as a dilution of the resources and purpose of the Act and cautioned against adopting "welfare or medical goals." See S. REP. No. 93-318 (1973), reprinted in 1973 U.S.C.C.A.N. 2086, 2089.
58. See S. REP. No. 93-1297 (1974), reprinted in 1974 U.S.C.C.A.N. 6373, 6388.
59. See id. at 6389.
60. See id. at 6388-89.
61. See id.
62. See id. at 6389-90 (expressing the intent to broaden coverage).
63. See id. at 6389.
64. Id. at 6390.
65. See id. at 6389.
66. 29 U.S.C. § 706(8)(B)(i) (1995).
67. See § 706 (8) (B)(ii).
68. See S. REP. No. 93-1297 (1974), reprinted in 1974 U.S.C.C.A.N. 6373, 6389.
69. See id.
70. See H.R. REP. No. 101-485 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334-35.
71. See § 706(8) (B)(iii); see also H.R. REP. No. 101-185, at 53 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 335.
72. See 45 C.F.R. § 84.3 (1997).
73. § 84.3(j)(2)(i)(A).
74. § 84.3(j)(2)(i)(B).
75. See 42 Fed. Reg. 22, 685-94 (May 4, 1990). This list included orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, drug addiction, and alcoholism. The legislative history of the 1986 Amendments to the Rehabilitation Act added autism, burn injury, and head injury to this list. See also H.R. REP. No. 99-571, at 17 (1986), reprinted in 1986 U.S.C.C.A.N. 3471, 3487.
76. 45 C.F.R. § 84.3(j)(2)(ii) (1997). The legislative history of the 1986 Amendments to the Rehabilitation Act added interpersonal skills to this list. See H.R. REP. No. 99-571, at 17 (1986), reprinted in 1986 U.S.C.C.A.N. 3471, 3487.
77. See H.R. REP. No. 101-185, at 24-25 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 268. Title I of the ADA prohibits discrimination in employment. See 42 U.S.C. §§ 12111-17 (1994). Title II addresses access to public programs and services. See §§ 12131-65. Title III covers public accommodations. See §§ 12181-89.
78. § 12101 (a) (7).
79. Id.
80. § 12101 (a) (8). For a further discussion of the relationship between the SSA and ADA definitions of disability, see Diller, supra note 40.
81. 42 U.S.C. § 12101(a)(8).
82. § 12101 (a) (9).
83. See § 12102(2). For a further analysis of the breadth and implications of the ADA's definition, see William J. McDevitt, Defining the Term "Disability" Under the Americans with Disabilities Act, 10 ST. THOMAS L. REV. 281 (1998). See also Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413 (1991).
84. See § 12102(2). For a further analysis of the breadth and implications of the ADA's definition, see William J. McDevitt, Defining the Term "Disability" Under the Americans with Disabilities Act, 10 ST. THOMAS L. REV. 281 (1998). See also Robert L. Burgdorf, Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413 (1991).
85. See S. REP. No. 101-116, at 21 (1989) (defining "individual with a disability" as consistent with "individual with handicaps" in section 7(8) (B) of the Rehabilitation Act); H.R. REP. No. 101-485, pt. 2, at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 332 (defining "disability" under ADA as parallel to "individual with handicaps" in Rehabilitation Act).
86. See S. REP. No. 101-116, at 22.
87. Id. at 23-24.
88. See id. at 22; H.R. REP. No. 101-485, pt. 6, at 51; H.R. REP. No. 101-485, pt. 4, at 28.
89. See S. REP. No. 101-116, at 22; H.R. REP. No. 101-485, pt. 6, at 51; H.R. REP. No. 101-485, pt. 4, at 28.
90. See H.R. REP. No. 101-485, at 52; see also S. REP. No. 101-116, at 22 (echoing almost verbatim the language in the House Report).
91. S. REP. No. 101-116, at 22.
92. See id.
93. Id.
94. See 135 CONG. REC. 19,878-80 (1989).
95. See 135 CONG. REC. 19,871.
96. See 135 CONG. REC. 19,897-03.
97. See Burgdorf, supra note 77, at 519.
98. See 42 U.S.C. §§ 12210-11 (1994). For an insightful discussion of these exclusions, see Adrienne L. Hiegel, Sexual Exclusions: The Americans with Disabilities Act as a Moral Code, 94 COLUM. L. REV. 1451 (1994).
99. See 42 U.S.C. § 12116 (1994) (authorizing the EEOC to issue regulations implementing Tide I), §§ 12134(a) and 12186(b) (authorizing the Attorney General to issue regulations implementing the public services provisions of Title II and the public accommodations provisions of Title III), and §§ 12149, 12164, and 12186 (authorizing the Secretary of Transportation to issue regulations implementing the transportation-related provisions of Titles II and III).
100. See 29 C.F.R. § 1630.2 (1997).
101. See 56 Fed. Reg. 8593 (1991).
102. 29 C.F.R. § 1630.2(j)(3)(i) (1998). Though the regulations do not define "class of jobs" or "broad range of jobs," they do provide a list of factors to consider, including "the geographic area to which the individual has reasonable access" and the actual availability of a given type of job within that geographic area. The regulations also focus on the skills, knowledge, and training necessary for the type of jobs for which an individual's disability disqualifies him. For example, an individual might be disqualified from a "class of jobs" if his impairment prevents him from performing jobs which require walking. The regulations suggest that an individual would be prevented from performing a "broad range of jobs" if his impairment would foreclose a variety of jobs, requiring different types of skills. See § 1630.2(j)(3)(ii) (1997).
103. § 1630.2(j)(1)(i) (1997).
104. See § 1630.2(J)(1)(ii).
105. See § 1630.2 (j)(2). These factors suggest that the more permanent and severe an impairment is, the more likely it is to qualify as a covered disability. For example, a broken arm that healed within several weeks would not qualify as a disability. By contrast, a broken arm that healed improperly, causing permanent damage and making it difficult for the individual to write, would probably be a disability for ADA purposes.
106. See § 1630.2(j). In analyzing the factors for "substantially limited," the interpretive guidelines provide that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." The guidelines, however, provide no "bright line" test for determining how long an impairment's disabling impact must last before it becomes substantially limiting. See id. By contrast, DOJ and DOT regulations do not impose durational requirements on disability. According to the DOT, any condition that meets the statutory definition is a qualifying disability under the ADA, regardless of its duration. See 49 C.F.R. § 37.3 (1997). The DOJ regulations, which do not define "substantially limits," call for a case-by-case analysis of each impairment, which includes evaluating the impairment's expected duration and the degree to which it actually limits the individual's ability to conduct a major life activity. See 28 C.F.R. § 36.104, app. b (1998).
107. See § 1630.2(1).
108. See 29 C.F.R. § 1630.2(1), app (1998).
109. Compare Kraul v. Iowa Methodist Med. Ctr., 915 F. Supp. 102 (S.D. Iowa 1995) (holding that reproduction is not a major life activity), with Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. 111. 1994) (holding that reproduction is a major life activity).
110. Compare Sandison v. Michigan High School Athletic Ass'n, 863 F. Supp. 483 (E.D. Mich. 1994) (holding that participation in interscholastic athletics is a major life activity), with Knapp v. Northwestern Univ., 101 F.3d 473 (7th Cir. 1996) (holding that playing intercollegiate basketball is not a major life activity).
111. See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1997) (assuming, without deciding, that the ability to control the elimination of waste is a major life activity).
112. See Poindexter v. Atchison, Topeka & Santa Fe R.R., 975 F. Supp. 1387 (D. Kan. 1997) (suggesting that commuting to work may be a major life activity). But cf. Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144 (2d Cir. 1998) (holding that "everyday mobility" is not a major life activity); Lally v. Commonwealth Edison Co., No. 95-C4220, 1996 U.S. Dist. LEXIS 19386 (N.D. 111. Dec. 19, 1996) (holding that driving is not a major life activity).
113. See Burgdorf, supra note 21, at 469-88 (discussing the temporary disability issue).
114. See Arlene B. Mayerson, Restoring Regard for the "Regarded As" Prong: Giving Effect to Congressional Intent, 42 VILL. L. REV. 587 (1997).
115. See Burgdorf, supra note 21, at 439-69 (discussing the "exclusion-from-only-one-job problem"); Locke, supra note 16 (arguing that courts have erroneously required proof that the plaintiff is generally unemployable before finding substantial limitation).
116. See 29 C.F.R § 1630.2(j), app. (1998) ("The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices."); § 1630.2(j) ("The determination of whether an individual is substantially limited in a major life activity must be made . . . without regard to mitigating measures. . . .").
117. Compare Arnold v. United Parcel Serv., 136 F.3d 854 (1st Cir. 1998) (holding that diabetes should be evaluated without considering ameliorative effect of insulin), with Gilday v. Mecosta County, 124 F.3d 760 (6th Cir. 1997) (holding that mitigating measures must be taken into account in evaluating diabetes).
118. See 29 C.F.R. § 1630.2(j), app. (1998) (giving HIV infection as an example).
119. See Lanctot, supra note 16.
120. 107 F.3d 934 (1st Cir. 1997), aff'd in part and remanded in part, 118 S. Ct. 2196 (1998).
121. Bragdon's other defense posed the second question raised on appeal: Whether courts should defer to a private health care provider's reasonable professional judgment that treating a patient would pose a direct threat to the health care provider. The Supreme Court remanded this question for further consideration, after finding that the record from the First Circuit's decision affirming summary judgment for the plaintiff did not cite sufficient evidence for the Court to determine whether treating the plaintiff posed a direct threat to the dentist. The Court held that the First Circuit may have mistakenly given too much weight to the Centers for Disease Control's Dentistry Guidelines, which do not assess the actual risks to dentists posed by treating HIV-positive patients, and to the American Dental Association Policy on HIV, which is not the work of a public health organization and does not indicate the scientific basis for its recommendations. In addition, the Court's consideration of this issue was constrained as it did not have "briefs and arguments directed to the entire record" before it. Bragdon, 118 S. Ct. at 2200.
122. Abbott v. Bragdon, 912 F. Supp. 580 (D. Me. 1995).
123. 29 C.F.R. § 1630.2(j), app. (1998).
124. Bragdon, 118 S. Ct. at 2206.
125. Bragdon, 118 S. Ct. 554 (granting certiorari on the question of whether reproduction is a major life activity).
126. See Bragdon, 118 S. Ct. at 2206.
127. Id.
128. See id.
129. See id. at 2205.
130. An example of this narrowness is displayed in the Court's holding regarding the major life activity constrained. The Court states: "Reproduction falls well within the phrase 'major life activity.' Reproduction and the sexual dynamics surrounding it are central to the life process itself." Id. Thus, the Court's holding does not require a lower court to find that a gay man with an asymptomatic HIV infection is an individual with a disability, for while the infection might limit the man's sexual activity, gay or lesbian sexual activity (or, for that matter, sexual activity by a man who has had a vasectomy or by a postmenopausal or sterilized woman) might not be seen as part of the "sexual dynamics surrounding [reproduction]." The narrowness of the Court's holding may be contrasted to the broad reading of "major life activity" suggested by the Court's dicta. See infra text accompanying notes 124-27.
131. Bragdon, 118 S. Ct. at 2202.
132. Id. at 2204.
133. See id. at 2207 (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).
134. See id. at 2209 (citing DOJ Title III Technical Assistance Manual (1993), EEOC Interpretive Manual § 902.2 (reissued Mar. 14, 1995), and 29 C.F.R §1630, app. (1997), inter alia).
135. Id. at 2204.
136. Of course, to determine whether an activity is "important" or "significant," one must ask the question: "Important or significant to what purpose?" The Court does not indicate any unifying objective for assessing importance. One might read the Court's conclusion that "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself" as signifying that courts should look at whether an activity is important to the "life process." Limiting major life activities to those important to the life process, however, is clearly inconsistent with some of the illustrative major life activities, such as learning and working, included in the Rehabilitation Act regulations. See 45 C.F.R. § 84.3(j)(2)(ii) (1997); 28 C.F.R. § 41.31(b)(2) (1998).
137. The Court stated: Given the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry. Respondent and a number of amici make arguments about HIV's profound impact on almost every phase of the infected person's life. . . . We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities. Bragdon, 118 S. Ct. at 2204-05.
138. Justice Kennedy wrote the majority opinion, in which he was joined by Justices Stevens, Souter, Ginsburg and Breyer. Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas dissented from the Court's opinion on whether asymptomatic HIV is a disability.
139. These applied fields include, for example, special education, rehabilitation psychology, and physical therapy.
140. See Saad Z. Nagi, The Concept and Measurement of Disability, in DISABILITY POLICIES AND GOVERNMENT PROGRAMS 5 (Edward D. Berkowitz ed., 1979) (distinguishing between constitutive and operational definitions).
141. See WORLD HEALTH ORGANIZATION, INTERNATIONAL CLASSIFICATION OF IMPAIRMENTS, DISABILITIES, AND HANDICAPS (1980).
142. See id.
143. See UNITED NATIONS, STANDARD RULES ON THE EQUALIZATION OF OPPORTUNITIES FOR PERSONS WITH DISABILITIES (1994).
144. See DISABILITY IN AMERICA: TOWARD A NATIONAL AGENDA FOR PREVENTION 76 (Alvin M. Pope & Alvin R. Tarlov eds., 1991) [hereinafter DISABILITY IN AMERICA].
145. See SUSAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 13 (1996); Anita Silvers, Disability Rights, in 1 ENCYCLOPEDIA OF APPLIED ETHICS 781 (1998). For some of the criticisms of the WHO definition, see infra discussion accompanying note 186.
146. See SUSAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 13 (1996); Anita Silvers, Disability Rights, in 1 ENCYCLOPEDIA OF APPLIED ETHICS 781 (1998). For some of the criticisms of the WHO definition, see infra discussion accompanying note 186.
147. As of 1998, the draft ICIDH-2 is undergoing extensive international field trials. Data gathered from the trials will be analyzed and may lead to further revisions of the draft in 1999. The Governing Bodies of the WHO are expected to vote on final approval of the ICIDH-2 in 2000. See WHO, ICIDH Field Trials (visited Nov. 3, 1998) 〈http://www.who.int/msa/mnh/ems/icidh/brochure/fieldtrial.htm〉.
148. See WHO, Introduction (visited Nov. 3, 1998) 〈http://www.who.int/msa/ mnh/ems/icidh/introduction.htm〉.
149. See Nagi, supra note 133, at 2-3; DISABILITY IN AMERICA, supra note 137, at 79-81.
150. This example is taken from DISABILITY IN AMERICA, supra note 137, at 79. Certainly, reasonable persons could argue that an inability to swim recreationally does not render a person disabled, even under Nagi's framework, unless the ability to swim recreationally is socially expected and an inability to do so somehow renders an individual less able to meet the demands of his environment. Cf. Martinez v. City of Roy, No. 97-4095, 1998 U.S. App. LEXIS 5906 (10th Cir. March 26, 1998) (concluding that recreational swimming is not a major life activity).
151. The IOM committee added to Nagi's framework the concepts of risk factors and quality of life in developing a model of the disabling process. This process-oriented approach was deemed useful in identifying strategic points during the process for preventive intervention. See DISABILITY IN AMERICA, supra note 137, at 78.
152. See id. at 77-78 ("Much as the term 'cripple' has gone out of style, 'handicap' seems to be approaching obsolescence, at least among people with disabilities in the United States."). The choice of language to refer to persons who have disabling conditions has generated much attention, and the current accepted usage seems to be to use "people first" language, that is, to refer to a person with a spinal cord injury, rather than to a quadriplegic, or to an individual with a disability, rather than a disabled individual. See Burgdorf, supra note 21, at 411 n.1. In the 1990s, "disabled people" has been used increasingly within disability studies to refer to the constituency group. See LINTON, supra note 27, at 13. The choices that individuals living with disabling impairments make in how to refer to themselves, however, may defy these conventions. See NANCY MAIRS, WAIST-HIGH IN THE WORLD: A LIFE AMONG THE NONDISABLED 12-14 (1996) (explaining why she refers to herself as a "cripple").
153. See id. at 77-78 ("Much as the term 'cripple' has gone out of style, 'handicap' seems to be approaching obsolescence, at least among people with disabilities in the United States."). The choice of language to refer to persons who have disabling conditions has generated much attention, and the current accepted usage seems to be to use "people first" language, that is, to refer to a person with a spinal cord injury, rather than to a quadriplegic, or to an individual with a disability, rather than a disabled individual. See Burgdorf, supra note 21, at 411 n.1. In the 1990s, "disabled people" has been used increasingly within disability studies to refer to the constituency group. See LINTON, supra note 27, at 13. The choices that individuals living with disabling impairments make in how to refer to themselves, however, may defy these conventions. See NANCY MAIRS, WAIST-HIGH IN THE WORLD: A LIFE AMONG THE NONDISABLED 12-14 (1996) (explaining why she refers to herself as a "cripple").
154. DISABILITY IN AMERICA, supra note 137, at 83.
155. For a description of the definition of disability contained in the ADA and its implementing regulations, see supra Part II.D.
156. Cf. Locke, supra note 16 (arguing that working should be eliminated from the regulatory list of major life activities).
157. Although most disability theorists use the phrase "medical model," the British theorist Michael Oliver uses the phrase "individual model." See MICHAEL OLIVER, UNDERSTANDING DISABILITY: FROM THEORYTO PRACTICE 30 (1996).
158. See Talcott Parsons, Definitions of Health and Illness in the Light of American Values and Social Structure, in PATIENTS, PHYSICIANS, AND ILLNESS (E. Gartly Jaco ed., 1958).
159. Cf. Susan Wendell, Toward a Feminist Theory of Disability, in FEMINIST PERSPECTIVES IN MEDICAL ETHICS 63, 72-73 (Helen Bequaert Holmes & Laura M. Purdy eds., 1992).
160. See id.
161. See Harlan Hahn, Antidiscrimination Laws and Social Research on Disability: The Minority Group Perspective, 14 BEHAVIORAL SCIENCES AND THE LAW 41, 45 (1996).
162. See WENDELL, supra note 138, at 71.
163. For a description of the definition of disability used in this program, see supra Part II.A.
164. See STONE, supra note 33, at 79.
165. See id. at 80-82, 110-11.
166. Id. at 113.
167. See id. at 125.
168. See OLIVER, supra note 148, at 32 (positing the "personal tragedy theory of disability").
169. See Ron Amundson, Disability, Handicap, and the Environment, J. SOC. PHIL., Spring 1992, at 105,113; Anita Silvers, (In)equality, (Ab)normality, and the Americans with Disabilities Act, 21 J. MED. & PHIL. 209, 204 (1996).
170. See Ron Amundson, Disability, Handicap, and the Environment, J. SOC. PHIL., Spring 1992, at 105,113; Anita Silvers, (In)equality, (Ab)normality, and the Americans with Disabilities Act, 21 J. MED. & PHIL. 209, 204 (1996).
171. See Chai R. Feldblum, Antidiscrimination Requirements of the ADA, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 36-37 (Jane West ed., 1996).
172. See Silvers, supra note 138, at 785. The use of medical technology to prevent disability includes the use of prenatal genetic screening to allow the abortion of fetuses likely to be disabled, a practice often decried by disability rights advocates. See Mary A. Crossley, Choice, Conscience, and Context, 47 HASTINGS L.J. 1223, 1231-32 (1996) (describing objections).
173. See Hahn, supra note 152, at 51.
174. Historically, persons with disabilities have been viewed as inferior not only in physical terms, but also in moral terms. The belief that a bodily impairment is the result of a moral flaw - of either the impaired person or an ancestor - is longstanding, though less prevalent today. See Silvers, supra note 138, at 785 (calling this the "moral model" of disability). So too, persons with disabilities have often been grouped together with other individuals who are seen as departing significantly from accepted norms of social behavior and thus are deemed deviant. See Drimmer, supra note 30, at 1348-49 (describing the "social pathology model" of disability).
175. See Drimmer, supra note 30, at 1349-51.
176. Hahn, supra note 152, at 43; cf. Anita Silvers, Reconciling Equality to Difference: Caring (F)or Justice for People with Disabilities, HYPATIA, Winter 1995, at 30 (stating that historically conditioned feelings of superiority over people with disabilities are deeply ingrained).
177. See Lisa E. Key, Voluntary Disabilities and the ADA: A Reasonable Interpretation of "Reasonable Accommodations", 48 HASTINGS L.J. 75 (1996). The idea that one ought to do what one can to help oneself before seeking accommodations, while facially appealing, can be quite deceptive in the rehabilitation context. A physician's judgment that a person can repair or surmount his impairment falls far short of a guarantee that such result is possible. If the person with the impairment follows the prescribed course and it fails, he will have paid in terms of pain, lost time, money, and possibly even a reduction in functioning. To condition the availability of accommodations on this effort casts the accommodation as compensation for the failure to be cured (i.e., the medical model), rather than as a reformation of the environment to make it more accessible (i.e., the social model).
178. See supra text accompanying notes 34-36.
179. Key, supra note 167, at 103.
180. W. Robert Gray, The Essential-Functions Limitation on the Civil Rights of People with Disabilities and John Rawls's Concept of Social Justice, 22 N.M. L. REV. 295, 296 (1992); cf. Locke, supra note 16, at 139 (arguing that the definition of disability should be amended to clarify that disabilities are physical and emotional conditions measured in medical terms).
181. See Feldblum, supra note 161, at 36; Jane West, The Evolution of Disability Rights, in IMPLEMENTING THE AMERICANS WITH DISABIUTIES ACT, supra note 161.
182. See Silvers, supra note 138, at 785-86; Hahn, supra note 152, at 45 (stating that the "sociopolitical" approach defines disability as the product of interactions between individuals and their environment, with the effects of disability primarily attributable to a disabling environment, rather than to personal defects or deficiencies).
183. WENDELL, supra note 138, at 39. Wendell also asserts that disability may be socially constructed by social conditions, such as violent crime, contaminated water, and poverty, that straightforwardly create illnesses, injuries, and poor physical functioning. See id. at 36-37. For a description of how public and collective actions in the late 19th and early 20th centuries limited the functions of physically impaired persons, see CLAIRE H. LIACHOWITZ, DISABILITYAS A SOCIAL CONSTRUCT (1988).
184. See Amundson, supra note 160, at 109 (noting that a wheelchair user has virtually no mobility impairment in a building with ramps, but is greatly handicapped when his goals are located up or down a flight of stairs).
185. See WENDELL, supra note 138, at 39; cf. S. Kay Toombs, Sufficient unto the Day: A Life with Multiple Sclerosis, in CHRONIC ILLNESS: FROM EXPERIENCE TO POLICY 3, 9 (S. Kay Toombs et al. eds., 1995) (describing how the fatigue that accompanies M.S. affects her ability to go grocery shopping).
186. See WENDELL, supra note 138, at 37-38.
187. See id. at 42-43.
188. See Robert Bogdan et al., The Disabled: Media's Monster, in PERSPECTIVES ON DISABILITY (Mark Nagler ed., 2d ed. 1993); see generally MARTIN F. NORDEN, THE CINEMA OF ISOLATION: A HISTORY OF PHYSICAL DISABILITY IN THE MOVIES (1994).
189. See Robert Bogdan et al., The Disabled: Media's Monster, in PERSPECTIVES ON DISABILITY (Mark Nagler ed., 2d ed. 1993); see generally MARTIN F. NORDEN, THE CINEMA OF ISOLATION: A HISTORY OF PHYSICAL DISABILITY IN THE MOVIES (1994).
190. Because this Article is concerned with the meaning given to the term "disability" in federal disability discrimination legislation, it is worth highlighting that not all disability theorists use that term to describe the disadvantages that flow from the physical, social, and cultural environments that persons with various impairments live in. Instead, consistent with the WHO conceptual framework discussed above, see supra text accompanying notes 134-35, some authors distinguish between the concepts of disability and handicap. Under this taxonomy, disability describes the functional limitation experienced by an impaired individual, but the social disadvantage experienced when that individual interacts with his environment is captured by the term handicap. See Amundson, supra note 160; Andrew I. Batavia, Relating Disability Policy to Broader Public Policy: Understanding the Concept of "Handicap," 21 POL'Y STUD. J. 735 (1993). Using this vocabulary, one may isolate a disability in an individual's body, but handicap is necessarily a relational concept. Theorists adopting this vocabulary, however, are not simply espousing the medical model, for they recognize that the disadvantage experienced by the disabled individual is not inevitable, but instead flows from the fact that "we humans regularly construct our environments with a certain range of biologically typical humans in mind." Amundson, supra note 160, at 110.
191. In discussing the social construction of disability, Michael Oliver makes a distinction between "social constructionists," who believe that the problem is located in the minds of nondisabled people, and "social creationists," who believe the problem is located in the institutionalized practices of society. See MICHAEL OLIVER, THE POLITICS OF DISABLEMENT: A SOCIOLOGICAL APPROACH 78-94 (1990).
192. See U.S. COMMISSION ON CIVIL RIGHTS, ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES 87-89 (1983).
193. DAVIS, supra note 27, at 11.
194. See id. at 24-29. Davis also makes an interesting comparison to the earlier development of the concept of the ideal, which by definition was beyond the attainment of any human. Accordingly, while all human bodies were nonideal, none was seen as deviant.
195. See id. Davis links this prescriptive force to the eugenics movement, which he views as an effort aimed at norming the population by getting rid of deviants. See id. at 30-31; see also Gina Maranto, On the Fringes of the Bell Curve, the Evolving Quest for Normality, N.Y. TIMES, May 26, 1998, at F7 ("reference to the normal has great force precisely because it so seamlessly joins description, which in the scientific view is value neutral, and evaluation, which entails making judgments about worth or moral status"); cf. Hiegel, supra note 91, at 1451 (arguing that disease and disability are normative concepts and that "the decision to categorize deviance as disability depends in large part on social values").
196. See Maranto, supra note 184. For a fascinating discussion of how changing social structures affect our understanding of "normal" variations in temperament, see Lawrence H. Diller, The Run on Ritalin: Attention Deficit Disorder and Stimulant Treatment in the 1990s, HASTINGS CENTER REF., Mar.-Apr. 1996, at 12.
197. See WENDELL, supra note 138, at 14; see also Silvers, supra note 138, at 784 (criticizing the WHO framework as reifying "a relative benchmark into an absolute standard").
198. Silvers, supra note 138, at 784.
199. See Philip Ferguson, The Social Construction of Mental Retardation, in PERSPECTIVES ON DISABILITY, supra note 178, at 203; Batavia, supra note 179, at 738. Ferguson, however, views the social model's failure to account for the exclusion of the severely mentally retarded not as evidence of the invalidity of that model's basic premise, but instead criticizes the social model as being too narrow and for failing to challenge the denial of social participation for the severely mentally retarded. 189 See OLIVER, supra note 148, at 37-38.
200. See WENDELL, supra note 138, at 45 ("The experiences of people with disabilities are as invisible in the discourses of postmodernism, which has the virtue of being critical of idealized, normalized, and universalized representations of bodies, as they are in discourses which employ concepts of bodily 'normality' uncritically.").
201. See Batavia, supra note 179, at 739 (acknowledging that while a person with an impairment may have a greater challenge in succeeding in any society than a person who enjoys all physical capabilities, "such internal limitations are not nearly as insurmountable as the external limitations that can truly handicap the disabled").
202. See Hahn, supra note 30, at 104 n.36.
203. See West, supra note 171; see also Burgdorf, supra note 77, at 460.
204. See Silvers, supra note 138, at 786; Hahn, supra note 152, at 53 (laying forth as postulates of the minority group paradigm (1) that all aspects of the environment are fundamentally shaped by public policies, (2) that policies tend to reflect pervasive societal attitudes and values, and (3) that the primary source of problems for persons with disabilities lies in the unfavorable attitudes of nondisabled persons).
205. See Feldblum, supra note 161, at 36-37.
206. See Amundson, supra note 160, at 113 ("Someone whose disadvantage occurs as a result of a social decision has a more obvious claim for social remediation.").
207. See Drimmer, supra note 30, at 1358; cf. Burgdorf, supra note 21 (arguing that reasonable accommodations should not be viewed as special benefits).
208. See Silvers, supra note 138, at 789. Even Silvers, however, recognizes that "the differences attendant upon serious impairment . . . resist being thus dismissed through social agreement," id., and that it may be inappropriate to conceptualize individuals with severe impairments as identical to nondisabled persons in the absence of social barriers. See id.
209. See Harlan Hahn, Toward a Politics of Disability: Definitions, Disciplines, and Policies, 22 SOC. SCI. J. 87 (1985). But cf. Amundson, supra note 160, at 116 (noting that if any handicapping aspects of the environment are fully natural and not socially constructed, then claims for remediation will not have a civil rights basis, but will be based on distributive justice).
210. See Drimmer, supra note 30, at 1355 (linking disability rights movement to civil rights movements of 1950s and 1960s); Hahn, supra note 30, at 98 (linking disability studies to feminist thought). Commentators have also noted that a disproportionate number of persons with disabilities are also members of other disadvantaged groups and thus may be subject to dual discrimination.
211. See Drimmer, supra note 30, at 1357 (stating that the civil rights model rejects the use of difference to create hierarchical structures of superiority and inferiority upon which societal participation is premised); cf. Ruth Colker, Bi: Race, Sexual Orientation, Gender, and Disability, 56 OHIO ST. L.J. 1 (1995) (linking group subordination of persons with disabilities to subordination of other groups).
212. See DAVIS, supra note 27, at xv, 4; OLIVER, supra note 148, at 9; WENDELL, supra note 138, at 25.
213. See Burgdorf, supra note 77, at 443.
214. Along these lines, Lennard Davis notes that "[d]isability presents itself to 'normal' people through two main modalities - function and appearance." DAVIS, supra note 27, at 11. He argues that nondisabled persons' understandings of disability, whether based on an inability to do something or on a different appearance, are socially constructed. See id. at 11-13.
215. Silvers, supra note 166, at 48. While the example given is of a physical barrier, it should be noted that historical counterfactualizing responds to any barrier that is the product of a social practice. For example, an instructor's continuing to speak as she turns her back to students to write on the blackboard creates a barrier for deaf students. If the majority of people were deaf, the practice would not be accepted as it is today.
216. See Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, in PERSPECTIVES ON DISABILITY, supra note 178, at 37, 39-40.
217. See Hahn, supra note 30, at 106.
218. See Hahn, supra note 152, at 54.
219. See Hahn, supra note 206, at 37, 40.
220. See Davis, supra note 27, at 12-13; see also Harlan Hahn, Can Disability Be Beautiful?, in PERSPECTIVES ON DISABILITY, supra note 178, at 217 (describing historical acceptance of a variety of body types prior to the influence of religion and advertising).
221. See Hahn, supra note 30, at 108; see also Jonathan Sinclair Carey, The Quasimodo Complex: Deformity Reconsidered, in THE TYRANNY OF THE NORMAL 43 (Carol Donley & Sheryl Buckley eds., 1996) (describing the social impacts of deformity).
222. See Ronald P. Strauss, Quasimodo and Medicine: What Role for the Clinician in Treating Deformity?, in THE TYRANNY OF THE NORMAL, supra note 211, at 79-80 (citing R.P. Strauss et al., Social Perceptions of the Effects of Down's Syndrome Facial Surgery: A School-Based Study of Ratings by Normal Adolescents, 81 PLASTIC AND RECONSTRUCTIVE SURGERY 841 (1988)).
223. See Ronald P. Strauss, Quasimodo and Medicine: What Role for the Clinician in Treating Deformity?, in THE TYRANNY OF THE NORMAL, supra note 211, at 79-80 (citing R.P. Strauss et al., Social Perceptions of the Effects of Down's Syndrome Facial Surgery: A School-Based Study of Ratings by Normal Adolescents, 81 PLASTIC AND RECONSTRUCTIVE SURGERY 841 (1988)).
224. See Carey, supra note 211, at 45. Of course, some may also view correcting physical anomalies as a benefit to society: "Reconstructive surgery has the objective not only of helping an abnormal individual achieve a kind of normalcy, but of ridding, if possible, society of a visible, uncomfortable exception." Robert M. Goldwyn, Deformity and the Humane Ideal of Medicine, in THE TYRANNY OF THE NORMAL, supra note 211, at 86.
225. See DAMS, supra note 27, at 3.
226. See Hahn, supra note 30, at 99.
227. See Michelle Fine & Adrienne Asch, Disability Beyond Stigma: Social Interaction, Discrimination, and Activism, 44 J. SOC. ISSUES 3 (1988) (discussing obstacles to developing a minority-group consciousness); West, supra note 171.
228. See WENDELL, supra note 138, at 30, 31 (recognizing that living with disability is different for people with different disabilities, but finding common ground in experiences of social oppression); Hahn, supra note 30, at 111 (recognizing that no single "disabled viewpoint" exists but asserting that persons with disabilities do have in common that they do not experience the external environment in the same way as the nondisabled). But cf. Fine & Asch, supra note 216 (reporting results of survey showing that 74% of people with disabilities do feel some common identity with one another and 45% see themselves as members of a minority group); Longmore, supra note 30 (discussing insider and outsider perspectives on medical treatment for persons with disabilities).
229. An example of the type of situation she contemplates may be found in Matthews v. Commonwealth Edison Co., 128 F.3d 1194 (7th Cir. 1997). In this reduction-inforce case, the employer used performance ratings from the previous year as the criteria for selecting which employees to retain. These ratings were based partially on the amount of work performed. Since the plaintiff missed a great deal of work because of his heart attack, and was forced to work a limited number of hours during his recovery period, his performance score was significantly lower and so he was let go. Despite this direct correlation between plaintiff's physical impairment and his low performance rating, the court found that the plaintiff was not discharged because of his disability. Rather, according to the court, the company made a legitimate, pragmatic decision to retain those employees who provided the most value through their labor.
230. See Silvers, supra note 138, at 791.
231. The civil rights model also has its dissenters. A main argument against the civil rights approach to disability is that it is disingenuous: critics see the ADA as not an antidiscrimination law, but an imposition of a subsidy for individuals with disabilities, paid for by public and private entities. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992); Andrew Kull, The Discrimination Shibboleth, 31 SAN DIEGO L. REV. 195 (1994). They argue that the "antidiscrimination" measures in the ADA in reality represent a public policy choice to promote the employment of those with disabilities, not to protect their civil rights. See id. Such critics view the requirement of reasonable accommodations for individuals with disabilities not as the removal of arbitrary roadblocks to employment, but as an "affirmative obligation" for employers to provide more compensation to individu-als with disabilities than to those without disabilities. See EPSTEIN, supra, at 480; Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495, 504-05 (1995). This amounts to government imposing a "price floor" for entering into a contract with an individual with a disability. See id. at 506-07. The labeling of this action as "antidiscrimination" has been characterized as a "linguistic diversion" used both to shield the pride of those benefited by the laws and to disguise a "back-door technique to subsidize people's jobs." Kull, supra, at 200. In addition, Kull asserts that the ADA's provisions differ from the prohibition of race discrimination in Title VII mostly in their costs to business and society, which both Kull and Epstein argue are higher than proponents of the ADA care to admit. See EPSTEIN, supra, at 488; Kull, supra, at 200. Kull also suggests that the equation of so-called disability discrimination with race discrimination obscures the true issues and impedes meaningful discourse about the meaning of and solutions to race discrimination. Finally, Epstein argues that discrimination against the disabled isn't really discrimination, but the logical effect of the increased costs of doing business with individuals with disabilities. See EPSTEIN, supra, at 487. He advocates an analysis of the costs to business and society of the ADA against the actual benefits enjoyed by all disabled individuals (not just those who are employable). See id. at 491. He suggests that "antidiscrimination" laws be repealed, and, in their place, a system of budget-restricted government subsidies be instituted, which would be targeted to resolve specific issues facing those with disabilities. See id. at 493. In other words, Epstein advocates calling the prohibition of discrimination on the basis of disability by what he sees as its right name: a subsidy for individuals with disabilities.
232. The civil rights model also has its dissenters. A main argument against the civil rights approach to disability is that it is disingenuous: critics see the ADA as not an antidiscrimination law, but an imposition of a subsidy for individuals with disabilities, paid for by public and private entities. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992); Andrew Kull, The Discrimination Shibboleth, 31 SAN DIEGO L. REV. 195 (1994). They argue that the "antidiscrimination" measures in the ADA in reality represent a public policy choice to promote the employment of those with disabilities, not to protect their civil rights. See id. Such critics view the requirement of reasonable accommodations for individuals with disabilities not as the removal of arbitrary roadblocks to employment, but as an "affirmative obligation" for employers to provide more compensation to individu-als with disabilities than to those without disabilities. See EPSTEIN, supra, at 480; Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495, 504-05 (1995). This amounts to government imposing a "price floor" for entering into a contract with an individual with a disability. See id. at 506-07. The labeling of this action as "antidiscrimination" has been characterized as a "linguistic diversion" used both to shield the pride of those benefited by the laws and to disguise a "back-door technique to subsidize people's jobs." Kull, supra, at 200. In addition, Kull asserts that the ADA's provisions differ from the prohibition of race discrimination in Title VII mostly in their costs to business and society, which both Kull and Epstein argue are higher than proponents of the ADA care to admit. See EPSTEIN, supra, at 488; Kull, supra, at 200. Kull also suggests that the equation of so-called disability discrimination with race discrimination obscures the true issues and impedes meaningful discourse about the meaning of and solutions to race discrimination. Finally, Epstein argues that discrimination against the disabled isn't really discrimination, but the logical effect of the increased costs of doing business with individuals with disabilities. See EPSTEIN, supra, at 487. He advocates an analysis of the costs to business and society of the ADA against the actual benefits enjoyed by all disabled individuals (not just those who are employable). See id. at 491. He suggests that "antidiscrimination" laws be repealed, and, in their place, a system of budget-restricted government subsidies be instituted, which would be targeted to resolve specific issues facing those with disabilities. See id. at 493. In other words, Epstein advocates calling the prohibition of discrimination on the basis of disability by what he sees as its right name: a subsidy for individuals with disabilities.
233. The civil rights model also has its dissenters. A main argument against the civil rights approach to disability is that it is disingenuous: critics see the ADA as not an antidiscrimination law, but an imposition of a subsidy for individuals with disabilities, paid for by public and private entities. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992); Andrew Kull, The Discrimination Shibboleth, 31 SAN DIEGO L. REV. 195 (1994). They argue that the "antidiscrimination" measures in the ADA in reality represent a public policy choice to promote the employment of those with disabilities, not to protect their civil rights. See id. Such critics view the requirement of reasonable accommodations for individuals with disabilities not as the removal of arbitrary roadblocks to employment, but as an "affirmative obligation" for employers to provide more compensation to individu-als with disabilities than to those without disabilities. See EPSTEIN, supra, at 480; Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495, 504-05 (1995). This amounts to government imposing a "price floor" for entering into a contract with an individual with a disability. See id. at 506-07. The labeling of this action as "antidiscrimination" has been characterized as a "linguistic diversion" used both to shield the pride of those benefited by the laws and to disguise a "back-door technique to subsidize people's jobs." Kull, supra, at 200. In addition, Kull asserts that the ADA's provisions differ from the prohibition of race discrimination in Title VII mostly in their costs to business and society, which both Kull and Epstein argue are higher than proponents of the ADA care to admit. See EPSTEIN, supra, at 488; Kull, supra, at 200. Kull also suggests that the equation of so-called disability discrimination with race discrimination obscures the true issues and impedes meaningful discourse about the meaning of and solutions to race discrimination. Finally, Epstein argues that discrimination against the disabled isn't really discrimination, but the logical effect of the increased costs of doing business with individuals with disabilities. See EPSTEIN, supra, at 487. He advocates an analysis of the costs to business and society of the ADA against the actual benefits enjoyed by all disabled individuals (not just those who are employable). See id. at 491. He suggests that "antidiscrimination" laws be repealed, and, in their place, a system of budget-restricted government subsidies be instituted, which would be targeted to resolve specific issues facing those with disabilities. See id. at 493. In other words, Epstein advocates calling the prohibition of discrimination on the basis of disability by what he sees as its right name: a subsidy for individuals with disabilities.
234. The civil rights model also has its dissenters. A main argument against the civil rights approach to disability is that it is disingenuous: critics see the ADA as not an antidiscrimination law, but an imposition of a subsidy for individuals with disabilities, paid for by public and private entities. See RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS (1992); Andrew Kull, The Discrimination Shibboleth, 31 SAN DIEGO L. REV. 195 (1994). They argue that the "antidiscrimination" measures in the ADA in reality represent a public policy choice to promote the employment of those with disabilities, not to protect their civil rights. See id. Such critics view the requirement of reasonable accommodations for individuals with disabilities not as the removal of arbitrary roadblocks to employment, but as an "affirmative obligation" for employers to provide more compensation to individu-als with disabilities than to those without disabilities. See EPSTEIN, supra, at 480; Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495, 504-05 (1995). This amounts to government imposing a "price floor" for entering into a contract with an individual with a disability. See id. at 506-07. The labeling of this action as "antidiscrimination" has been characterized as a "linguistic diversion" used both to shield the pride of those benefited by the laws and to disguise a "back-door technique to subsidize people's jobs." Kull, supra, at 200. In addition, Kull asserts that the ADA's provisions differ from the prohibition of race discrimination in Title VII mostly in their costs to business and society, which both Kull and Epstein argue are higher than proponents of the ADA care to admit. See EPSTEIN, supra, at 488; Kull, supra, at 200. Kull also suggests that the equation of so-called disability discrimination with race discrimination obscures the true issues and impedes meaningful discourse about the meaning of and solutions to race discrimination. Finally, Epstein argues that discrimination against the disabled isn't really discrimination, but the logical effect of the increased costs of doing business with individuals with disabilities. See EPSTEIN, supra, at 487. He advocates an analysis of the costs to business and society of the ADA against the actual benefits enjoyed by all disabled individuals (not just those who are employable). See id. at 491. He suggests that "antidiscrimination" laws be repealed, and, in their place, a system of budget-restricted government subsidies be instituted, which would be targeted to resolve specific issues facing those with disabilities. See id. at 493. In other words, Epstein advocates calling the prohibition of discrimination on the basis of disability by what he sees as its right name: a subsidy for individuals with disabilities.
235. See WENDELL, supra note 138, at 60-61; Wendell, supra note 150, at 70, 74; see also Hiegel, supra note 91, at 1451 ("[T]he human body is an important site of symbolic meaning about personhood.").
236. Silvers, supra note 138, at 783.
237. See id.
238. See OLIVER, supra note 148, at 95-105.
239. See Doyle McManus & Sara Fritz, Democrats' Emotional Night: Convention Opens with Brady, Reeve Casting Clinton as a Leader who Reaches Across Party Lines, L.A. TIMES, August 27, 1996, at A1 (observing that delegates and guests "fell reverently silent as Brady, grievously wounded in a 1981 assassination attempt against then-President Reagan, walked haltingly to the dais with the help of his wife, Sarah, and a cane").
240. See supra note 182 and accompanying text.
241. See WENDELL, supra note 138, at 20-21; cf. Colker, supra note 201.
242. See WENDELL, supra note 138, at 50 (giving example of an inability to dance gracefully as not particularly important to full participation in the life of a society); cf. Colker, supra note 201, at 4 (asserting necessity of ensuring that programs designed primarily to assist individuals in overcoming a history of subordination are not used by individuals who have been insulated from that subordination by their presence in a "bi" category).
243. See, e.g., Burgdorf, supra note 77; Feldblum, supra note 161; Silvers, supra note 160.
244. See 42 V.S.C. § 12101 (a)(7) (1994).
245. See supra note 6 (citing statutory provisions requiring reasonable accommodations). But see Drimmer, supra note 30 (finding that standards such as "reasonable" accommodations and "readily achievable" modifications are inconsistent with the civil rights model's demand that "equal treatment and freedom from both attitudinal and structural discrimination be guaranteed without compromise").
246. This limitation is implicitly acknowledged by scholars of disability, too. Simi Linton writes: The question of who 'qualifies' as disabled is as answerable or as confounding as questions about any identity status. One simple response might be that you are disabled if you say you are. Although that declaration won't satisfy a worker's compensation board, it has a certain credibility with the disabled community. LINTON, supra note 27, at 12.
247. 29 C.F.R. § 1630.2(h)(1) (1998). A mental impairment is defined as "[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." § 1630.2(h)(2). The EEOC adopted these definitions from the regulations implementing section 504 of the Rehabilitation Act at 34 C.F.R. pt. 104. See 29 C.F.R. § 1630.2(h), app. (1998). The regulatory definitions provided by the DOJ and DOT are in accord. See 49 C.F.R. § 37.3 (1997); 28 C.F.R. § 36.104 (1998).
248. See 29 C.F.R. pt. 1630, app. (1998).
249. 2 Equal Employment Compliance Manual (CBC) § 902 (1995) [hereinafter Compliance Manual].
250. The Interpretive Guidance states: The definition of the term "impairment" does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within "normal" range and are not the result of a physiological disorder. The definition, likewise, does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. Similarly, the definition does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder. Environmental, cultural, or economic disadvantages such as poverty, lack of education or a prison record are not impairments. Advanced age, in and of itself, is also not an impairment. However, various medical conditions commonly associated with age, such as hearing loss, osteoporosis, or arthritis would constitute impairment within the meaning of this part. 29 C.F.R. § 1630.2(h), app. (1998).
251. § 1630.2(h)(1). One federal district court applying the Pennsylvania Human Relations Act, whose regulatory definition of "impairment" tracks the EEOC's definition, dealt with this argument by importing from the caselaw a requirement of negative effect. While a pregnant woman certainly has a physiological condition, it cannot be said that the condition affects any of the above body systems. The cases indicate that the body system must be affected in a negative manner, such that there are problems suffered as a result of the condition. . . . [T] here is no negative effect when a woman becomes pregnant. She still is able to reproduce, in fact she is reproducing when she is pregnant, thus it cannot be said that her reproductive system is negatively affected. . . . Brennan v. Nat'l Tel. Directory Corp., 850 F. Supp. 331, 343 (E.D. Pa. 1994).
252. 29 C.F.R. § 1630.2(h), app. (1998).
253. See Compliance Manual, supra note 235, at § 902.2 (c) (3). The example that the Compliance Manual gives of a pregnancy-induced complication is hypertension, a condition that is readily recognized as an impairment in nonpregnancy cases.
254. See Chapsky v. Baxter Mueller Div., No. 93-6524, 1995 WL 103299 (N.D. 111. Mar. 9, 1995). In Chapsky, the court misconstrued Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. Ill. 1994), as holding that pregnancy is a physical impairment affecting the reproductive system, when in fact Pacourek did not discuss that issue. See Gudenkauf v. Stauffer Communications Inc., 922 F. Supp. 465 (D. Kan. 1996). Kindlesparker v. Metropolitan Life Ins. Co., No. 94-C7542, 1995 WL 275576 (N.D. Ill May 8, 1995), was decided by the same court a few months later in reliance on Chapsky. Cf. Wenzlaff v. Nationsbank, 940 F. Supp. 889, 891 (D. Md. 1996) (describing Chapsky as aberrant after reviewing existing caselaw).
255. See Martinez v. Labelmaster, No. 96-C4189, 1998 U.S. Dist. LEXIS 8499 (N.D. 111. May 29, 1998); Leahr v. Metropolitan Pier & Exposition Auth., No. 96-C1388, 1997 WL 414104 (N.D. 111. July 17, 1997); Wenzlaff, 940 F. Supp. 889; Jessie v. Carter Health Center, Inc., 926 F. Supp. 613 (E.D. Ky. 1996); Lehmuller v. Incorporated Village of Sag Harbor, 944 F. Supp. 1087 (E.D.N.Y. 1996); Gudenkauf, 922 F. Supp. 465;Johnson v. A.P. Products, Ltd., 934 F. Supp. 625 (S.D.N.Y. 1996); Villareal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149 (S.D. Tex. 1995); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109 (D.N.H. 1995); Byerly v. Herr Foods, Inc., No. CIV.A.92-7382, 1993 WL 101196 (E.D. Pa. Apr. 6, 1993).
256. See, e.g., Leahr, 1997 WL 414104, at *4; Jessie, 926 F. Supp. at 616; Lehmuller, 944 F. Supp. at 1094 ("coverage of the ADA does not extend to normal pregnancies"); Johnson, 934 F. Supp. at 627 (noting that neither an employee's pregnancy nor its complications were a disability under the ADA); Tsetseranos, 893 F. Supp. 109 (finding that pregnancy complicated by ovarian cysts, which caused plaintiff to miss work, was not an impairment); Villlareal, 895 F. Supp. at 152 (concluding that pregnancy and related medical conditions do not, absent unusual circumstances, constitute an impairment).
257. 922 F. Supp. 465 (D. Kan. 1996).
258. Although Gudenkauf believed she was disabled during the last trimester of her pregnancy, the court relied on the testimony of Gudenkauf's obstetrician that she had not experienced any complications or conditions not normally expected with pregnancy and that her complaints did not indicate unusual symptoms or unusually severe symptoms. See id. at 469.
259. Several of the courts rejecting pregnancy and related conditions as disabilities also rely on a statement in the EEOC's guidance manual that "temporary, nonchronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. §1630.2(j), app. (1998). This statement is directed at explaining the phrase "substantially limits," not "impairment." See, e.g., Martinez, 1998 U.S. Dist. LEXIS 8499; Leahr, 1997 WL 414104, at *4; Tsetseranos, 893 F. Supp. at 119; Villareal, 895 F. Supp. at 152.
260. Gudenkauf, 922 F. Supp. at 473.
261. See, e.g., Johnson, 934 F. Supp. at 627; Jessie, 926 F. Supp. at 616; Villareal, 895 F. Supp. at 152; Tsetseranos, 893 F. Supp. at 119; Byerly v. Herr Foods, Inc., No. CIV.A.92-7382, 1993 WL 101196, at *4 (E.D. Pa. Apr. 6, 1993). The Pregnancy Discrimination Act was enacted in 1978 as an amendment to Title VII. It specifically prohibits, as a form of sex discrimination, discrimination on the bases of pregnancy, childbirth, or related medical conditions.
262. 901 F. Supp. 274 (N.D. Ill. 1995).
263. See id. at 278; see also Walker v. American NTN Bearing Mfg., No. 95-C1227, 1997 U.S. Dist. LEXIS 2919 (N.D. 111. Mar. 10, 1997) (citing Patterson in accepting plaintiffs contention that her impairment was not her pregnancy itself, but her headaches, nausea, and sleeping and eating problems attributable to her pregnancy); Garrett v. Chicago Sch. Reform Bd. of Trustees, No. 95-C7341, 1996 WL 411319 (N.D. 111. July 19, 1996) (finding allegation of severe morning sickness as disability was sufficient to survive motion to dismiss).
264. Cerrato v. Durham, 941 F. Supp. 388, 392 (S.D.N.Y. 1996); see also Darian v. University of Mass. Boston, 980 F. Supp. 77 (D. Mass. 1997); Hernandez v. City of Hartford, 959 F. Supp. 125 (D. Conn. 1997); Lacoparra v. Pergament Home Centers, Inc., 982 F. Supp. 213 (S.D.N.Y.1997).
265. 941 F. Supp. 388 (S.D.N.Y. 1996).
266. Id. at 393 (citing Council on Scientific Affairs, Effects of Pregnancy on Work Performance, 251 JAMA 1995 (1984)).
267. Id.
268. Hemandez, 959 F. Supp. at 130 (citing DORLAND'S MEDICAL DICTIONARY (27th ed. 1988)).
269. Dorian, 980 F. Supp. at 87.
270. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities Under United States Law, 9 YALE J.L. & FEMINISM 213, 221 (1998) (arguing that gender discrimination laws take an "antidifferentiation" approach while disability discrimination laws take an "antisubordination" approach that seeks to improve employability of persons with disabilities); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996) (arguing that the ADA's requirement of reasonable accommodations be incorporated into other employment discrimination laws). For commentary on accommodating pregnant employees, see Deborah A. Galloway, Accommodating Pregnancy in the Workplace, 25 STETSON L. REV. 1 (1995) (advocating that accommodation of pregnancy in the workplace be characterized as a legal obligation to promote the health of developing children); Jennifer Gottschalk, Comment, Accommodating Pregnancy on the Job, 45 U. KAN. L. REV. 241 (1996) (arguing for the need for on-the-job accommodation for pregnant workers and advocating an interpretation of existing employment legislation which would support this result); Colette G. Matzzie, Note, Substantive Equality &? Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193 (1993) (arguing for coverage of pregnancy and pregnancy-related disabilities under the ADA by defining "disability" as relative to a particular social context); Laura Schlichtmann, Comment, Accommodation of Pregnancy-Related Disabilities on the Job, 15 BERKELEY J. EMP. & LAB. L. 335 (1994) (considering currently available legal protections for workers who need accommodations to continue working while pregnant).
271. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities Under United States Law, 9 YALE J.L. & FEMINISM 213, 221 (1998) (arguing that gender discrimination laws take an "antidifferentiation" approach while disability discrimination laws take an "antisubordination" approach that seeks to improve employability of persons with disabilities); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996) (arguing that the ADA's requirement of reasonable accommodations be incorporated into other employment discrimination laws). For commentary on accommodating pregnant employees, see Deborah A. Galloway, Accommodating Pregnancy in the Workplace, 25 STETSON L. REV. 1 (1995) (advocating that accommodation of pregnancy in the workplace be characterized as a legal obligation to promote the health of developing children); Jennifer Gottschalk, Comment, Accommodating Pregnancy on the Job, 45 U. KAN. L. REV. 241 (1996) (arguing for the need for on-the-job accommodation for pregnant workers and advocating an interpretation of existing employment legislation which would support this result); Colette G. Matzzie, Note, Substantive Equality &? Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193 (1993) (arguing for coverage of pregnancy and pregnancy-related disabilities under the ADA by defining "disability" as relative to a particular social context); Laura Schlichtmann, Comment, Accommodation of Pregnancy-Related Disabilities on the Job, 15 BERKELEY J. EMP. & LAB. L. 335 (1994) (considering currently available legal protections for workers who need accommodations to continue working while pregnant).
272. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities Under United States Law, 9 YALE J.L. & FEMINISM 213, 221 (1998) (arguing that gender discrimination laws take an "antidifferentiation" approach while disability discrimination laws take an "antisubordination" approach that seeks to improve employability of persons with disabilities); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996) (arguing that the ADA's requirement of reasonable accommodations be incorporated into other employment discrimination laws). For commentary on accommodating pregnant employees, see Deborah A. Galloway, Accommodating Pregnancy in the Workplace, 25 STETSON L. REV. 1 (1995) (advocating that accommodation of pregnancy in the workplace be characterized as a legal obligation to promote the health of developing children); Jennifer Gottschalk, Comment, Accommodating Pregnancy on the Job, 45 U. KAN. L. REV. 241 (1996) (arguing for the need for on-the-job accommodation for pregnant workers and advocating an interpretation of existing employment legislation which would support this result); Colette G. Matzzie, Note, Substantive Equality &? Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193 (1993) (arguing for coverage of pregnancy and pregnancy-related disabilities under the ADA by defining "disability" as relative to a particular social context); Laura Schlichtmann, Comment, Accommodation of Pregnancy-Related Disabilities on the Job, 15 BERKELEY J. EMP. & LAB. L. 335 (1994) (considering currently available legal protections for workers who need accommodations to continue working while pregnant).
273. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities Under United States Law, 9 YALE J.L. & FEMINISM 213, 221 (1998) (arguing that gender discrimination laws take an "antidifferentiation" approach while disability discrimination laws take an "antisubordination" approach that seeks to improve employability of persons with disabilities); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996) (arguing that the ADA's requirement of reasonable accommodations be incorporated into other employment discrimination laws). For commentary on accommodating pregnant employees, see Deborah A. Galloway, Accommodating Pregnancy in the Workplace, 25 STETSON L. REV. 1 (1995) (advocating that accommodation of pregnancy in the workplace be characterized as a legal obligation to promote the health of developing children); Jennifer Gottschalk, Comment, Accommodating Pregnancy on the Job, 45 U. KAN. L. REV. 241 (1996) (arguing for the need for on-the-job accommodation for pregnant workers and advocating an interpretation of existing employment legislation which would support this result); Colette G. Matzzie, Note, Substantive Equality &? Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193 (1993) (arguing for coverage of pregnancy and pregnancy-related disabilities under the ADA by defining "disability" as relative to a particular social context); Laura Schlichtmann, Comment, Accommodation of Pregnancy-Related Disabilities on the Job, 15 BERKELEY J. EMP. & LAB. L. 335 (1994) (considering currently available legal protections for workers who need accommodations to continue working while pregnant).
274. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities Under United States Law, 9 YALE J.L. & FEMINISM 213, 221 (1998) (arguing that gender discrimination laws take an "antidifferentiation" approach while disability discrimination laws take an "antisubordination" approach that seeks to improve employability of persons with disabilities); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996) (arguing that the ADA's requirement of reasonable accommodations be incorporated into other employment discrimination laws). For commentary on accommodating pregnant employees, see Deborah A. Galloway, Accommodating Pregnancy in the Workplace, 25 STETSON L. REV. 1 (1995) (advocating that accommodation of pregnancy in the workplace be characterized as a legal obligation to promote the health of developing children); Jennifer Gottschalk, Comment, Accommodating Pregnancy on the Job, 45 U. KAN. L. REV. 241 (1996) (arguing for the need for on-the-job accommodation for pregnant workers and advocating an interpretation of existing employment legislation which would support this result); Colette G. Matzzie, Note, Substantive Equality &? Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193 (1993) (arguing for coverage of pregnancy and pregnancy-related disabilities under the ADA by defining "disability" as relative to a particular social context); Laura Schlichtmann, Comment, Accommodation of Pregnancy-Related Disabilities on the Job, 15 BERKELEY J. EMP. & LAB. L. 335 (1994) (considering currently available legal protections for workers who need accommodations to continue working while pregnant).
275. See Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness and Parenting Responsibilities Under United States Law, 9 YALE J.L. & FEMINISM 213, 221 (1998) (arguing that gender discrimination laws take an "antidifferentiation" approach while disability discrimination laws take an "antisubordination" approach that seeks to improve employability of persons with disabilities); Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996) (arguing that the ADA's requirement of reasonable accommodations be incorporated into other employment discrimination laws). For commentary on accommodating pregnant employees, see Deborah A. Galloway, Accommodating Pregnancy in the Workplace, 25 STETSON L. REV. 1 (1995) (advocating that accommodation of pregnancy in the workplace be characterized as a legal obligation to promote the health of developing children); Jennifer Gottschalk, Comment, Accommodating Pregnancy on the Job, 45 U. KAN. L. REV. 241 (1996) (arguing for the need for on-the-job accommodation for pregnant workers and advocating an interpretation of existing employment legislation which would support this result); Colette G. Matzzie, Note, Substantive Equality &? Antidiscrimination: Accommodating Pregnancy Under the Americans with Disabilities Act, 82 GEO. L.J. 193 (1993) (arguing for coverage of pregnancy and pregnancy-related disabilities under the ADA by defining "disability" as relative to a particular social context); Laura Schlichtmann, Comment, Accommodation of Pregnancy-Related Disabilities on the Job, 15 BERKELEY J. EMP. & LAB. L. 335 (1994) (considering currently available legal protections for workers who need accommodations to continue working while pregnant).
276. For examples of the range of accommodations requested by pregnant women, see Darian, 980 F. Supp. 77 (requesting that nursing student be required to see only one patient per day, be allowed to review patient records at home, and have a reduced course load); Jessie v. Carter Health Center, Inc., 926 F. Supp. 613 (E.D. Ky. 1996) (requesting that certified nursing assistant be placed on light duty work); Patterson v. Xerox Corp., 901 F. Supp. 274 (N.D. 111. 1995) (requesting that receivables representative be allowed to take 5-10 minute walk every hour to relieve back pain).
277. See Darian, 980 F. Supp. at 86.
278. See STONE, supranote 33, at 110 ("Human performance is divided into percentiles, so that disability is conceived in terms of missing parts. Impairments become entities to be subtracted from the presumed wholeness of the individual.").
279. See Cerrato v. Durham, 941 F. Supp. 388, 393 (S.D.N.Y. 1996) (discussing Council on Scientific Affairs, supra, note 252). It is worth noting, moreover, that these courts are not being analytically consistent: They are using the medical literature to get them over the initial threshold of whether a pregnant woman can be considered to have an impairment. The statement relied on, however, talks about the fact that some complications may disable a woman from further work during the pregnancy - an analysis which appears to focus on the limiting effect of the complication rather than its nature as a disorder or abnormal condition.
280. See generally BARBARA KATZ ROTHMAN, IN LABOR: WOMEN AND POWER IN THE BIRTHPLACE (1991).
281. Cf. Hahn, supra note 30, at 108 (discussing aesthetic anxiety stimulated by physical differences as the basis for prejudice and exclusion).
282. Cf. LINTON, supra note 27, at 13 (discussing Carol J. Gill, Questioning Continuum, in THE RAGGED EDGE: THE DISABILITY EXPERIENCE FROM THE PAGES OF THE FIRST FIFTEENYEARS OF "THE DISABILITY RAG" 46 (B. Shaw ed., 1994)).
283. I think that few persons from any camp would argue that all pregnant women should be considered to have a disability throughout their pregnancies. It seems that women whose pregnancy causes their bodies not to look or perform the way that society expects bodies to look and perform - a failure that prompts discrimination - have the strongest claim to disability.
284. Cf. MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND AMERICAN LAW 3-4 (1990) (discussing importance of basis on which classifications are made).
285. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
286. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
287. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
288. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
289. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
290. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
291. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI
292. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
293. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
294. For commentary on these cases, see Sharlene A. McEvoy, Tipping the Scales of Justice: Employment Discrimination Against the Overweight, 21 HUM. RTS. Q. 24 (1994) (analyzing Cook v. Rhode Island, Dep't of Mental Health, Retardation, & Hosps., 10 F.3d 17 (1st Cir. 1993)); Charles T. Passaglia, Appearance Discrimination: The Evidence of the Weight, 23 COLO. LAW. 841 (1994) (evaluating the possible impact of Cassista and Cook on obesity becoming recognized as a perceived disability); Steven Ziolkowski, The Status of Weight-Based Discrimination Under the Americans with Disabilities Act After Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, 74 B.U. L. REV. 657 (1994) (advocating amending EEOC regulations to address overweight conditions exceeding 20-30% over ideal weight); Andrea M. Brucoli, Comment, Cook v. Rhode Island, Department of Mental Health, Retardation, and Hospitals: Morbid Obesity as a Protected Disability or an Unprotected Voluntary Condition, 28 GA. L. REV. 771 (1994) (emphasizing the need for case-by-case evaluation of each claim rather than a blanket recognition of all obese persons as disabled); Carolyn May McDermott, Note, Should Employers Be Allowed to Weigh Obesity in Their Employment Decisions? Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals, 44 U. KAN. L. REV. 199 (1995) (recommending that protection of federal disability law be extended to those whose obesity results from systemic or metabolic factors, or whose obesity is of sufficient duration and impact); Milena D. O'Hara, Note and Comment, "Please Weight to be Seated": Recognizing Obesity as a Disability to Prevent Discrimination in Public Accommodations, 17 WHITTIER L. REV. 895 (1996) (arguing that prevalence of discrimination against the obese mandates that obesity be protected as a disability, and proposing a "sliding-scale" approach to categorizing individuals as disabled); Scott Peterson, Comment, Discrimination Against Overweight People: Can Society Still Get Away with It?, 30 GONZ. L. REV. 105 (1994) (advocating protection for the obese from widespread societal discrimination, yet acknowledging the logistical problems of extending disability legislation to cover the large number of overweight Americans); Shari Ronkin, Comment, Private Rights in Public Places: A Weighty Issue, 48 U. MIAMI L. REV. 649 (1994) (arguing that obese plaintiffs should be offered redress under the ADA's "regarded as" prong when they can demonstrate that they have been treated differently due to societal stereotypes about obesity); Paula B. Stoiker, Note, Weigh My Job Performance, Not My Body: Extending Title VII to Weight-Based Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 223 (1992) (arguing for Title VII protection for the overweight based on appearance discrimination); William C. Taussig, Note, Weighing in Against Obesity Discrimination: Cook v. Rhode Island, Department of Mental Health, Retardation & Hospitals and the Recognition of Obesity as a Disability Under the Rehabilitation Act and the Americans with Disabilities Act, 35 B.C. L. REV. 927 (1994) (favoring federal protection of all obese individuals because of "societal perception that being overweight is a disabling condition").
295. The medical definition of obesity is weight of 20% or more over the ideal body weight. Morbid obesity is defined as 100% over ideal weight. See Jeanine C. Cogan & Esther D. Rothblum, Outcomes of Weight-Loss Programs, 118 GENETIC, SOC., & GEN. PSYCHOL. MONOGRAPHS 385, 388 (1992); Barbara Lukert, Biology of Obesity, in PSYCHOLOGICAL ASPECTS OF OBESITY 1 (Benjamin Wolman ed., 1982).
296. The medical definition of obesity is weight of 20% or more over the ideal body weight. Morbid obesity is defined as 100% over ideal weight. See Jeanine C. Cogan & Esther D. Rothblum, Outcomes of Weight-Loss Programs, 118 GENETIC, SOC., & GEN. PSYCHOL. MONOGRAPHS 385, 388 (1992); Barbara Lukert, Biology of Obesity, in PSYCHOLOGICAL ASPECTS OF OBESITY 1 (Benjamin Wolman ed., 1982).
297. 29 C.F.R. §1630.2(h), app. (1998).
298. Compliance Manual, supra note 235, at § 902.2(c) (5)(ii) (citations omitted).
299. In the interpretive guidelines explaining the phrase "substantially limits" as it is used in defining "disability," the EEOC also states, without explanation, "[T]emporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. . . . Similarly, except in rare circumstances, obesity is not considered a disabling impairment." 29 C.F.R. § 1630.2(j), app. (1998). This reference to obesity, however, does not go to whether it should be considered an impairment.
300. In several cases, however, courts have either assumed that morbid obesity is a physical impairment, see, e.g., Nedder v. Rivier College, 908 F. Supp. 66 (D.N.H. 1995) (assuming arguendo that morbid obesity constitutes an impairment); Morrow v. City of Jacksonville, Ark., 941 F. Supp. 816 (E.D. Ark. 1996) (assuming implicitly that a combination of obesity and hypertension were impairments), or declined to decide the question, see Smaw v. Commonwealth of Virginia Dep't of State Police, 862 F. Supp. 1469 (E.D. Va. 1994).
301. 10 F.3d 17 (1st Cir. 1993).
302. In order to succeed on a perceived disability claim, the plaintiff may show the definition of "being regarded as having a disability" to be met in one of three ways: (1) The individual may have an impairment which is not substantially limiting but is perceived by the employer or other covered entity as constituting a substantially limiting impairment; (2) The individual may have an impairment which is substantially limiting only because of the attitude of others toward the impairment; or (3) The individual may have no impairment at all, but is regarded by the employer or other covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2(1), app. (1998).
303. Cook, 10 F.3d at 23. The court also found that the jury could have found from the evidence that although Cook was not handicapped, the defendant treated her as if she had a physical impairment because it treated her obesity as if it actually affected her musculoskeletal and cardiovascular systems.
304. The court did suggest, however, that the mutability and voluntariness of an impairment could be relevant to determining whether it had a substantially limiting effect on major life activities. See id. at 23 n.7.
305. See Cassista v. Community Foods, Inc., 856 P.2d 1143 (Cal. 1993). The court pointed out that the statutory definition of "physical handicap" was modeled on the Rehabilitation Act's and ADA's definition of "disability" and looked to federal administrative and judicial interpretations of those statutes. See id. at 1150, 1153.
306. Accord Fredregill v. Nationwide Agribusiness Ins. Co., 992 F. Supp. 1082 (S.D. Iowa 1997) (stating, regarding perceived disability claim, that "evidence which consists only of a belief that a physical characteristic presents an undesirable image or appearance does not support an inference that [defendant] regarded [plaintiffs] weight problems as connected to a physiological disorder").
307. See Cassista, 856 P.2d at 1153.
308. Karen Kramer and Arlene Mayerson criticize the California court's reading of the "regarded as" prong of the definition of disability as being too narrow. They suggest that, in order to show that an employer regarded an individual as having an impairment, it should be sufficient to show that the employer perceived her as having a physical condition "affecting" one of the "bodily systems." Thus, a plaintiff who could show that an employer refused to hire her because it believed her obesity (a physical condition) would cause her to have back problems (an effect on the musculoskeletal system) could proceed on a perceived disability claim. See Karen M. Kramer & Arlene B. Mayerson, Obesity Discrimination in the Workplace: Protection Through a Disability Claim Under the Rehabilitation Act and the Americans with Disabilities Act, 31 CAL. W. L. REV. 41, 62-63 (1994). One district court has taken a similar approach in finding that a morbidly obese plaintiff had presented evidence of an actual impairment. See Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703 (S.D.N.Y. 1997) ("Hazeldine has shown that her obesity constitutes a physiological condition which affects at least her musculoskeletal, respiratory, and cardiovascular systems."); accord Bryant v. Troy Auto Parts Warehouse, No. IP95-1654-C-D/F, 1997 U.S. Dist. LEXIS 22111, at *1 (S.D. Ind. Apr. 25, 1997).
309. See Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997); Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997); Tudyman v. United Airlines, 608 F. Supp. 739 (C.D. Cal. 1984).
310. 129 F.3d 281 (2d Cir. 1997).
311. See id. at 285-86.
312. The court distinguished Cook as a case involving discrimination based on morbid obesity and suggested that a plaintiff could proceed on a perceived disability claim if the employer perceived the plaintiff as being morbidly obese. See id. at 286.
313. See id.; accord Andrews, 104 F.3d at 810 ("Because a mere physical characteristic does not, without more, equal a physiological disorder, where an employee's failure to meet the employer's job criteria is based solely on the possession of such a physical characteristic, the employee does not sufficiently allege a cause of action under these statutes."); Tudyman, 608 F. Supp. at 746 (concluding as a matter of law that a bodybuilder flight attendant who exceeded weight limits was not a handicapped individual because his excess weight was not the result of physiological disorders, cosmetic disfigurement, or anatomical loss).
314. Francis, 129 F.3d at 287. See also Andrews, 104 F.3d at 810 (stating that allowing coverage of discrimination based on physical characteristics unrelated to a physiological disorder would "debase the high purpose of the statutory protections available to those truly handicapped"); Tudyman, 608 F. Supp. at 746 ("This court refuses to make the term handicapped a meaningless phrase.").
315. See Fredregill v. Nationwide Agribusiness Ins. Co., 992 F. Supp. 1082, 1090 (S.D. Iowa 1997) (stating, with respect to a morbidly obese plaintiff, "[plaintiffs] weight departs from the norm to such an extent it would not be beyond the realm of reason for the jury to conclude solely from his physical stature that his condition is an actual physical impairment").
316. One case to which the EEOC was a party, however, confounds this generalization somewhat. In EEOC v. Texas Bus Lines, 923 F. Supp. 965 (S.D. Tex. 1996), the defendant refused to hire a morbidly obese woman as a shuttle van driver after a physician refused to issue a Medical Examiner's Certificate required by Department of Transportation regulations. The EEOC took the position that the morbidly obese woman had no physical or mental impairment, but that Texas Bus Lines regarded her as substantially impaired. See id. at 968. The court found that the physician refused to provide medical clearance not based on any medical findings, but based on "myth, fear or stereotype" about the abilities of obese persons. The court concluded: "Texas Bus Lines regarded [the plaintiff] as disabled and, therefore, unable to work as a driver based on her alleged impaired mobility without the benefit of objective medical testing or findings." Id. at 979. This conclusion appears to be inconsistent with the holding in Francis, described in the text accompanying notes 281-84. Nonetheless, the two cases are distinguishable because the plaintiff in Texas Bits Lines was morbidly obese.
317. For example, weights beyond the normal range - or abnormal weight to put it more bluntly - could be established as a deviation of more than x% from the weights set forth in the Metropolitan Life Insurance Company height and weight tables. See Jane Byeff Korn, Fat, 77 B.U. L. REV. 25, 28 n.18 (1997) (reproducing table). The term "obese" is medically defined in a similar fashion, as meaning 20% or more over ideal body weight. See id. at 25 n.1.
318. For example, weights beyond the normal range - or abnormal weight to put it more bluntly - could be established as a deviation of more than x% from the weights set forth in the Metropolitan Life Insurance Company height and weight tables. See Jane Byeff Korn, Fat, 77 B.U. L. REV. 25, 28 n.18 (1997) (reproducing table). The term "obese" is medically defined in a similar fashion, as meaning 20% or more over ideal body weight. See id. at 25 n.1.
319. See id. at 28-29; accord Fredregill, 992 F. Supp. at 1089 ("A large segment of the population is obese to some degree, and obesity is a matter of degree.").
320. Unless, of course, her weight results from some physiological disorder, as will be discussed infra text accompanying notes 293-99. The present discussion centers on finding impairment in a deviation from the norm. See Korn, supra note 288, at 42 (objecting to blanket rule that protects someone who is 100% over her ideal weight, but not someone who is 80% over her ideal weight).
321. I am indebted to Professor Michael Masinter for making this point during a discussion of Francis v. City of Meriden in Counsel Connect's ADA discussion group.
322. In light of the alternative way that weight can be deemed an impairment - if it is the result of a physiological impairment - one might speculate that the EEOC's identification of morbid obesity as "clearly an impairment" reflects a res ipsa loquitur ("the thing speaks for itself") approach. In other words, how could someone weigh 100% more than his ideal body weight if there's not something wrong with him? Even if this theory accurately reveals an implicit rationale for the EEOC's treatment of morbid obesity, it does not resolve the arbitrariness of the threshold chosen.
323. 29 C.F.R. § 1630.2(h), app. (1998). In its Compliance Manual, the EEOC explains further: "[A] person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological impairment is an impairment." Compliance Manual, supra note 235, at § 902.2(c) (5) (ii).
324. Many individuals favor the use of the word "fat" over "obese," which has medi-cal connotations, or "overweight," which imposes societal notions of weight norms. See Christian S. Crandall, Prejudice Against Fat People: Ideology and Self-Interest, 66 J. PERSONALITY & SOCIAL PSYCHOL. 882, 882 n.1 (1994); Korn, supra, note 288, at 25 n.1.
325. For a discussion of Cook v. Rhode Island from a disability perspective, see Anita Silvers, Reprising Women's Disability: Feminist Identity Strategy and Disability Rights, 13 BERKELEY WOMEN'S L.J. 81, 109-11 (1998) (emphasizing that Cook received protection from discrimination because the employer "falsely equated her physical condition with incompetence").
326. Again, the reminder: even if a person satisfies the requirement of proving an impairment, that person will be an individual with a disability only if that impairment substantially limits one or more major life activities.
327. See Korn, supra note 288, at 45.
328. 34 C.F.R. pt. 104, app. A (1997) (clarifying 34 C.F.R. § 104.3(j)); 45 C.F.R. pt. 84, app. A. (1997) (clarifying 45 C.F.R. § 84.3(j)). Given the weight placed on Rehabilitation Act regulations by the Supreme Court in Bragdon v. Abbott, 118 S. Ct. 2196 (1998), it would seem that lower courts should pay closer attention to this interpretive guidance, even though it is not repeated in the ADA regulations or interpretive guidance.
329. See Crandall, supra note 294, at 883 (reporting that most research suggests that weight is primarily a function of genetic and metabolic factors); Gina Kolata, Researchers Find Hormone Causes a Loss of Weight, N.Y. TIMES, July 17, 1995, at A1.
330. See Kramer & Mayerson, supra note 279, at 64-72 (discussing stigmatization of and work-related stereotypes about obese individuals); cf. Ronkin, supra note 266 (discussing obese people's denial of access to public accommodations).
331. See Kramer & Mayerson, supra note 279, at 65-66 (discussing studies showing stronger negative reactions by children and adults to pictures of obese persons than to pictures of persons with visible disabilities).
332. The points made in this section regarding the disability studies critique of the legal treatment of when obesity may be deemed an impairment (and thus the first step towards a finding of disability) would also apply to the EEOC's exclusion of other physical characteristics from the definition of impairment unless they exceed the normal range or are attributable to a physiological disorder. For example, in discussing the potential that short stature may be a disability, the EEOC gives the following example: [A] four foot, ten inch tall woman who was denied employment as an automotive production worker because the employer thought she was too small to do the work does not have an impairment. The woman's height was below the norm, but her small stature was not so extreme as to constitute an impairment and was not the result of a defect, disorder, or other physical abnormality. On the other hand, a four feet, five inches tall man with achondroplastic dwarfism does have an impairment. The man's stature was the result of an underlying disorder, achondroplastic dwarfism, which is an impairment. Compliance Manual, supra note 235, at § 902.2(c) (5) (i) (citations omitted). As with obesity, the question posed by disability theory would be why does the cause of short stature matter if the social experience of oppression is the same regardless of the cause? As a practical matter, in the example given by the EEOC, there might in fact be a difference in social experience if the person with achondroplastic dwarfism experienced greater prejudice and exclusion as a result of disproportion between trunk and limbs or other physical anomalies accompanying the dwarfism. The EEOC, however, does not identify this as the basis for treating one person differently from the other in assessing impairment. See generally Paul Steven Miller, Coming up Short: Employment Discrimination Against Littlt People, 22 HARV. C.R.-C.L. L. REV. 231 (1987). 303 I speak of "need" here not in the sense of medical validation being an absolute prerequisite for a finding of impairment and disability. I imagine that if a plaintiff who was a double amputee were to come to court in a wheelchair, the court would not require expert medical testimony before finding the plaintiff to have an impairment. For those plaintiffs whose impairments are not as subject to lay assessment, however, the need for medical validation is much greater.
333. The points made in this section regarding the disability studies critique of the legal treatment of when obesity may be deemed an impairment (and thus the first step towards a finding of disability) would also apply to the EEOC's exclusion of other physical characteristics from the definition of impairment unless they exceed the normal range or are attributable to a physiological disorder. For example, in discussing the potential that short stature may be a disability, the EEOC gives the following example: [A] four foot, ten inch tall woman who was denied employment as an automotive production worker because the employer thought she was too small to do the work does not have an impairment. The woman's height was below the norm, but her small stature was not so extreme as to constitute an impairment and was not the result of a defect, disorder, or other physical abnormality. On the other hand, a four feet, five inches tall man with achondroplastic dwarfism does have an impairment. The man's stature was the result of an underlying disorder, achondroplastic dwarfism, which is an impairment. Compliance Manual, supra note 235, at § 902.2(c) (5) (i) (citations omitted). As with obesity, the question posed by disability theory would be why does the cause of short stature matter if the social experience of oppression is the same regardless of the cause? As a practical matter, in the example given by the EEOC, there might in fact be a difference in social experience if the person with achondroplastic dwarfism experienced greater prejudice and exclusion as a result of disproportion between trunk and limbs or other physical anomalies accompanying the dwarfism. The EEOC, however, does not identify this as the basis for treating one person differently from the other in assessing impairment. See generally Paul Steven Miller, Coming up Short: Employment Discrimination Against Littlt People, 22 HARV. C.R.-C.L. L. REV. 231 (1987). 303 I speak of "need" here not in the sense of medical validation being an absolute prerequisite for a finding of impairment and disability. I imagine that if a plaintiff who was a double amputee were to come to court in a wheelchair, the court would not require expert medical testimony before finding the plaintiff to have an impairment. For those plaintiffs whose impairments are not as subject to lay assessment, however, the need for medical validation is much greater.
334. See Compliance Manual, supra note 235, at § 902.2 (b). The Manual also states that "[o]ther information, such as the charging party's description of his/her condition or statements from the charging party's friends, family, or co-workers, also may be relevant to determining whether the charging party has an impairment." Id. Thus, the EEOC does not exclude from consideration nonmedical evidence of impairment; in stating that such evidence "may be relevant," however, the EEOC appears to place it on a lower level than medical evidence in assessing impairment. Medical documentation is also identified by the EEOC as a "good starting point" for investigation of whether an impairment substantially limits a charging party's major life activities, and the discussion that follows applies equally to medical judgments regarding the substantially limiting impact of a patient's condition. See id. at § 902.4(c)(1). The Manual, however, cautions agents evaluating whether an impairment substantially limits a major life activity not to rely solely on information contained in medical documentation. See id. Of course, in the "real world," medical practice may not always make clean distinctions between decisions regarding the existence of an impairment and the manifestations of that impairment. For example, diagnosing chronic fatigue syndrome calls for the physician to report severe fatigue that is not the result of exertion, but is unexplained, of recent onset, unimproved by rest, and significantly disabling. See Keiji Fukuda et al., The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 ANNALS OF INTERNAL MED. 953 (1994).
335. See Compliance Manual, supra note 235, at § 902.2 (b). The Manual also states that "[o]ther information, such as the charging party's description of his/her condition or statements from the charging party's friends, family, or co-workers, also may be relevant to determining whether the charging party has an impairment." Id. Thus, the EEOC does not exclude from consideration nonmedical evidence of impairment; in stating that such evidence "may be relevant," however, the EEOC appears to place it on a lower level than medical evidence in assessing impairment. Medical documentation is also identified by the EEOC as a "good starting point" for investigation of whether an impairment substantially limits a charging party's major life activities, and the discussion that follows applies equally to medical judgments regarding the substantially limiting impact of a patient's condition. See id. at § 902.4(c)(1). The Manual, however, cautions agents evaluating whether an impairment substantially limits a major life activity not to rely solely on information contained in medical documentation. See id. Of course, in the "real world," medical practice may not always make clean distinctions between decisions regarding the existence of an impairment and the manifestations of that impairment. For example, diagnosing chronic fatigue syndrome calls for the physician to report severe fatigue that is not the result of exertion, but is unexplained, of recent onset, unimproved by rest, and significantly disabling. See Keiji Fukuda et al., The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 ANNALS OF INTERNAL MED. 953 (1994).
336. See Compliance Manual, supra note 235, at § 902.2 (b). The Manual also states that "[o]ther information, such as the charging party's description of his/her condition or statements from the charging party's friends, family, or co-workers, also may be relevant to determining whether the charging party has an impairment." Id. Thus, the EEOC does not exclude from consideration nonmedical evidence of impairment; in stating that such evidence "may be relevant," however, the EEOC appears to place it on a lower level than medical evidence in assessing impairment. Medical documentation is also identified by the EEOC as a "good starting point" for investigation of whether an impairment substantially limits a charging party's major life activities, and the discussion that follows applies equally to medical judgments regarding the substantially limiting impact of a patient's condition. See id. at § 902.4(c)(1). The Manual, however, cautions agents evaluating whether an impairment substantially limits a major life activity not to rely solely on information contained in medical documentation. See id. Of course, in the "real world," medical practice may not always make clean distinctions between decisions regarding the existence of an impairment and the manifestations of that impairment. For example, diagnosing chronic fatigue syndrome calls for the physician to report severe fatigue that is not the result of exertion, but is unexplained, of recent onset, unimproved by rest, and significantly disabling. See Keiji Fukuda et al., The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 ANNALS OF INTERNAL MED. 953 (1994).
337. See Compliance Manual, supra note 235, at § 902.2 (b). The Manual also states that "[o]ther information, such as the charging party's description of his/her condition or statements from the charging party's friends, family, or co-workers, also may be relevant to determining whether the charging party has an impairment." Id. Thus, the EEOC does not exclude from consideration nonmedical evidence of impairment; in stating that such evidence "may be relevant," however, the EEOC appears to place it on a lower level than medical evidence in assessing impairment. Medical documentation is also identified by the EEOC as a "good starting point" for investigation of whether an impairment substantially limits a charging party's major life activities, and the discussion that follows applies equally to medical judgments regarding the substantially limiting impact of a patient's condition. See id. at § 902.4(c)(1). The Manual, however, cautions agents evaluating whether an impairment substantially limits a major life activity not to rely solely on information contained in medical documentation. See id. Of course, in the "real world," medical practice may not always make clean distinctions between decisions regarding the existence of an impairment and the manifestations of that impairment. For example, diagnosing chronic fatigue syndrome calls for the physician to report severe fatigue that is not the result of exertion, but is unexplained, of recent onset, unimproved by rest, and significantly disabling. See Keiji Fukuda et al., The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition and Study, 121 ANNALS OF INTERNAL MED. 953 (1994).
338. See Boren v. Wolverine Tube, Inc., 966 F. Supp. 457, 462 (N.D. Miss. 1997); Kalekiristos v. CTS Hotel Mgmt. Corp., 958 F. Supp. 641 (D.D.C. 1997); Buchanan v. Safeway Stores, Inc., No. C95-1658 FMS, 1996 U.S. Dist. LEXIS 18325, at *1 (N.D. Cal. Dec. 5, 1996); Farley v. Gibson Container, Inc., 891 F. Supp. 322, 326 (N.D. Miss. 1995); Aucutt v. Six Flags Over Mid-America, Inc., 869 F. Supp. 736, 744 (E.D. Mo. 1994); Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir. 1992).
339. See supra text accompanying note 197.
340. See Silvers, supra note 166, at 44 (describing how disabled people came to be seen as part of the "deserving poor" and became a means of production for professional caregivers); OLIVER, supra note 148, at 127 (arguing that the category of disability is a product of capitalistic society and that the workforce of professional caregivers has a "vested interest in producing its own product in particular ways and in exerting as much control over the process of production as possible").
341. See WENDELL, supra note 138, at 25. In making this point, Wendell is not concerned specifically with the inability of women with PID to access the protections of the ADA, but with their inability to receive support in their struggles with their bodies from families, friends, and society at large.
342. See STONE, supra note 33, at 129-31 (discussing medical error and the unreliability of clinical judgment). For a discussion of similar concerns in the context of mental health treatment decisions, see Susan Stefan, Leaving Civil Rights to the "Experts": From Deference to Abdication Under the Professional Judgment Standard, 102 YALE L.J. 639 (1992).
343. See STONE, supra note 33, at 134 ("Pain, fatigue, shortness of breath - and, one might add, anxiety - are all real and very powerful subjective phenomena, but they defy measurement.").
344. See COMMISSION ON THE EVALUATION OF PAIN, U.S. DEPT. OF HEALTH & HUMAN SERVICES, REPORT OF THE COMMISSION ON THE EVALUATION OF PAIN, 54 (1986); see also Ber v. Celebrezze, 332 F.2d 293, 299 (2d Cir. 1964) ("What one human being may be able to tolerate as an uncomfortable but bearable burden may constitute for another human being a degree of pain so unbearable as to subject him to unrelenting misery of the worst sort").
345. See Thomas E. Rudy et al., Differential Utility of Medical Procedures in the Assessment of Chronic Pain Patients, 34 PAIN 53 (1988).
346. See Margaret C. Rodgers, Subjective Pain Testimony in Disability Determination Proceedings: Can Pain Alone be Disabling?, 28 CAL. W. L. REV. 173 (1991).
347. In the SSDI context, "excess pain" is the term of art used to describe pain above and beyond the level that a diagnosed medical impairment would normally be expected to produce. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). The courts have differed on whether or not excess pain can be the basis for a disability finding. See Rodgers, supra note 313, at 178-82 (describing vacillation of Ninth Circuit on the question).
348. See Rodgers, supra note 313, at 173-74; cf. STONE, supra note 33, at 134-38 (addressing the "special problem of pain" in disability determination).
349. See Patricia C. Crowley, No Pain, No Gain? The Agency for Health Care Policy and Research's Attempt to Change Inefficient Health Care Practice of Withholding Medication from Patients in Pain, 10 J. CONTEMP. HEALTH L. & POL'Y 383 (1994); see also Brian Goldman, Chronic-Pain Patients Must Cope with Chronic Lack of Physician Understanding, 144 CAN. MED. ASS'N J. 1492 (1991).
350. See Patricia C. Crowley, No Pain, No Gain? The Agency for Health Care Policy and Research's Attempt to Change Inefficient Health Care Practice of Withholding Medication from Patients in Pain, 10 J. CONTEMP. HEALTH L. & POL'Y 383 (1994); see also Brian Goldman, Chronic-Pain Patients Must Cope with Chronic Lack of Physician Understanding, 144 CAN. MED. ASS'N J. 1492 (1991).
351. This statement is true when medicine takes an "as needed" approach to pain control, that is, wait until the patient feels pain and then provide palliative medication as needed to relieve the pain. The "as needed" approach to pain control has predominated in American medicine, but a shift towards a preventative approach to control pain seems to be underway. Adoption of a preventative approach to pain relief seeks to prevent and relieve pain by improving physician-patient communications about pain and providing medication before the patient suffers pain. In 1992, the Agency for Health Care Policy and Research, a federal agency charged with promulgating advisory guidelines for medical practice, issued guidelines for pain relief that focused on improving the effectiveness of pain control techniques. See generally Crowley, supra note 316.
352. Stuart A. Grossman et al., Correlation of Patient and Caregiver Ratings of Cancer Pain, 6J. PAIN & SYMPTOM MGMT. 53, 56 (1991) (finding that health care provider and patient agreement regarding level of pain was 79% when patients reported low levels of pain, 37% when patients reported moderate levels of pain, and 13% when patients reported high levels of pain).
353. See Raymond C. Tait & John T. Chibnall, Observer Perceptions of Chronic Low Back Pain, 24 J. APPLIED SOC. PSYCHOL. 415 (1994); David E. Weissman & J. David Haddox, Opioid Pseudo-addiction: An Iatrogenic Syndrome, 36 PAIN 363 (1989).
354. See Raymond C. Tait & John T. Chibnall, Observer Perceptions of Chronic Low Back Pain, 24 J. APPLIED SOC. PSYCHOL. 415 (1994); David E. Weissman & J. David Haddox, Opioid Pseudo-addiction: An Iatrogenic Syndrome, 36 PAIN 363 (1989).
355. See Raymond C. Tait & John T. Chibnall, Physician Judgments of Chronic Pain Patients, 45 SOC. SCI. & MED. 1199 (1997) (identifying attractiveness, gender, litigation status, patient age, ethnicity, and social desirability sensitivity as potential bases for bias).
356. See Heather D. Hadjistavropoulis et al., Are Physicians' Ratings of Pain Affected by Patients'Physical Attractiveness?, 31 SOC. SCI. & MED. 69 (1990) (concluding that attractive patients are viewed as generally more healthy than unattractive patients and thus receive lower pain assessments). This finding might be interpreted to mean that disabled patients, because they are commonly perceived as physically unattractive, are more likely to receive higher pain assessments than their nondisabled counterparts. That interpretation might hold true for persons with visible disabilities, but may be less true for persons with chronic medical conditions that do not perceptibly affect their physical appearance.
357. See Deborah Dillon McDonald & R. Gary Bridge, Gender Stereotyping and Nursing Care, 14 RES. NURSING & HEALTH 373, 376 (1991) (finding that nurses planned significantly more ambulation, analgesic administration, and emotional support time for male patients).
358. See Michael J. Ross et al., Age Differences in Body Consciousness, 44 J. GERONTOLOGY PSYCHOL. SCI. 23 (1989).
359. See Maryann S. Bates et al., The Effects of the Cultural Context of Health Care of Treatment of and Response to Chronic Pain and Illness, 45 SOC. SCI. & MED. 1433 (1997) (interpreting studies as showing that cultural beliefs affect both the provider's assessment of pain and the patient's perception and communication of pain).
360. See H.R. REP. No. 101-485, at 51 (1990).
361. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
362. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
363. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
364. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical
365. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
366. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
367. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
368. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
369. Other examples of conditions whose nature is uncertain and whose legitimacy is currently in dispute include multiple chemical sensitivity and Gulf War Syndrome. Multiple chemical sensitivity (MCS) was first identified by allergist Theron Randolph in 1962 as a "general allergic syndrome" provoked in especially susceptible individuals by continuous exposure to chemicals in daily life. Thomas L. Kurt, Multiple Chemical Sensitivities - A Syndrome of Pseudotoxicity Manifest as Exposure Perceived Symptoms, 33 CLINICAL TOXICOLOGY 101, 101 (1995). Individuals suffering from MCS complain of headaches, fatigue, nasal congestion, cognitive problems, irritability, and mood swings. See E.E. Sikorski et al., The Question of Multiple Chemical Sensitivity, 24 FUNDAMENTAL & APPLIED TOXICOLOGY 22, 23 (1995). Overall, the syndrome is characterized almost exclusively by subjective symptoms, which the patient claims were triggered by chemical exposure. See id. at 22. Because of the dearth of objective, reproducible signs of the disorder, and a lack of universal definitions or diagnostic criteria accepted by physicians treating sufferers, the medical establishment tends to believe that the symptoms derive from a psychological problem. See Claudia S. Miller, White Paper: Chemical Sensitivity: History and Phenomenology, 10 TOXICOLOGY & INDUS. HEALTH 253, 258 (1994). To date, no MCS claim under the ADA has survived a defendant's summary judgment motion. See Frank v. New York, 972 F. Supp. 130 (N.D.N.Y. 1997); Treadwell v. Dow-United Techs., 970 F. Supp. 974, 975 (M.D. Ala. 1997); Patrick v. Southern Co. Serv., 910 F. Supp. 566, 567 (N.D. Ala. 1996), aff'd, 103 F.3d 149 (11th Cir. 1996); Whillock v. Delta Air Lines, Inc., 926 F. Supp. 1555, 1556 (N.D. Ga. 1995), aff'd, 86 F.3d 1171 (11th Cir. 1996). The court in Frank, for example, refused to allow expert testimony on MCS, and, citing the general lack of acceptance of MCS in the medical community and the lack of an objective, reliable, clinical test for the disorder, found that expert evidence regarding the disorder lacked scientific reliability. See Frank, 972 F. Supp. at 134. Gulf War Syndrome (GWS), though yet to be conclusively diagnosed, has been recognized as at least six separate groupings of symptoms by medical researchers. See Robert W. Haley et al., Is There a Gulf War Syndrome? Searching for Syndromes by Factor Analysis of Symptoms, 277 JAMA 215 (1997). In fact, a General Accounting Office Report released in 1997, along with three 1997 Journal of the American Medical Association articles, linked service in the Gulf theater to a variety of mysterious ailments. See New Study Finds Fertilizer May be Linked to Gulf Illnesses, MED. INDUSTRY TODAY, June 25, 1997, available in LEXIS, News Library, CURNWS File; Ingrid Wickelgren & Marcia Barinaga, The Big Easy Serves Up a Feast to Visiting Neuroscientists, 278 SCIENCE 1404 (1997). Commonly reported symptoms of the syndromes include fatigue, joint pain, sleep disorders, memory loss, headaches, and rashes. See The Iowa Persian Gulf Study Group, Self-Reported Illness and Health Status Among Gulf War Veterans, 277 JAMA 238 (1997). Despite medical research demonstrating that veterans reporting GWS symptoms generally shared a psychological profile consistent with chronic medical illness and not post-traumatic stress or malingering, government entities, including the Pentagon, officially attribute GWS to psychological sources. See Haley et al., supra; MED. INDUSTRY TODAY, supra. Litigation on Gulf War Syndrome has yet to produce any rulings on the admissibility of medical testimony on the disorder. See, e.g., Coleman v. Acolac, Inc., 888 F. Supp. 1388 (S.D. Tex. 1995); United States v. James, No. ACM 31012, 1995 WL 755296 (A.F. Ct. Crim. App. Nov. 30, 1995).
370. Other names for chronic fatigue syndrome include chronic fatigue immune dysfunction syndrome (CFIDS) and myalgic encephalomyelitis (ME), See JESSE A. STOFF & CHARLES R. PELLEGRINO, CHRONIC FATIGUE SYNDROME: THE HIDDEN EPIDEMIC (1988).
371. See Fukuda et al., supra note 304.
372. See generally HILLARY JOHNSON, OSLER'S WEB: INSIDE THE LABYRINTH OF THE CHRONIC FATIGUE SYNDROME EPIDEMIC (1996) (tracing cases of CFS during its "pandemic" period, early research efforts into its possible causes, and the struggles of physicians first diagnosing the syndrome to have it recognized by the mainstream medical establishment and the U.S. government).
373. See SOCIAL SECURITY ADMINISTRATION, PROGRAM OPERATIONS MANUAL SYSTEM, § DI 24515.075 (May 1997); cf. Mitchell v. Eastman Kodak Co., 113 F.3d 433, 443 (3d Cir. 1997) (stating that, in an employer-provided disability insurance case, CFS is "universally recognized as a severe disability"); Woodson v. Cook County Sheriff, No. 96-C3864, 1996 U.S. Dist. LEXIS 15475 (N.D. 111. Oct. 17, 1996) (holding, in an ADA case, that CFS can be an impairment which substantially limits the major life activity of working).
374. See Fukuda et al., supra note 304. There do exist a few objective measures that are consistent with a diagnosis of CFS, but that do not establish a diagnosis. See Issam Bou-Holaigah et al., The Relationship Between Neurally Mediated Hypotension and the Chronic Fatigue Syndrome, 274 JAMA 961 (1995) (abnormally reduced heart rate and blood pressure after the patient has been sitting upright for forty minutes); STOFF & PELLEGRINO, supra note 327, at 74-84 (laboratory tests for low-functioning immune system, yeast infections, and chronic viral infections).
375. See, e.g., The Actively Sick, WALL ST.J., Aug. 26, 1997, at A16 (dismissing Chronic Fatigue Syndrome as a "psychologically grounded ailment[s]" or variety of depression which sufferers fraudulently tie to "exotic virus [es]" and "little brain lesions [s]," and supporting characterization of the illness as one of many "coping mechanisms and methods of escape" in "stressful times").
376. For a description of the progression and impact of CFS on one person, see Susan Wendell's description of her experience. WENDELL, supra note 138, at 1-5.
377. 29 C.F.R. § 1630.2(h)(1) (1998).
378. 7 THE OXFORD ENGLISH DICTIONARY 696 (2d ed. 1989).
379. 123 F.3d 156 (4th Cir. 1997) (en banc).
380. See id. at 168.
381. See id. at 169.
382. See Bragdon v. Abbott, 118 S. Ct. 2196, 2202-04 (1998).
383. Or condition, or cosmetic disfigurement, or anatomical loss. See 29 C.F.R. §1630.2(h)(1) (1998).
384. See Cook v. Rhode Island, Department of Mental Health Retardation, & Hosps., 10 F.3d 17, 24 (1st Cir. 1993) ("[T]hough people afflicted with morbid obesity can treat the manifestations of metabolic dysfunction by fasting or perennial undereating, the physical impairment itself - a dysfunctional metabolism - is permanent.").
385. Rodriguez v. Loctite Puerto Rico, Inc., 967 F. Supp. 653, 659 (D.P.R. 1997). When this portion of the court's opinion is read in context, it appears that what the court is attempting to express is that the plaintiff could not successfully argue that her Lupus was a disability unless she could show that its manifestations substantially limited a major life activity. So understood, the analysis is correct. Nonetheless, the language used displays confusion over the usage of the term impairment.
386. But for an example of a court that understands the distinction, see Doane v. City of Omaha, 115 F.3d 624, 627 (8th Cir. 1997) (concluding that plaintiff had a disability because "[h]is glaucoma caused permanent blindness in one eye which substantially limits [his] major life activity of seeing").
387. The WHO framework describes impairment as any loss or abnormality of psychological, physiological, or anatomical structure or function, and Nagi uses the term to indicate some loss or abnormality of mental, physiological, or biochemical function, which relates to the specific functioning of an organ or organ system, but not to the functioning of an individual as an entire organism. See supra text accompanying notes 134, 141.
388. An example of a court using its own understanding of impairment, without relying either on the regulatory definition or the assistance of a dictionary, can be found in Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986), where the court states: "[T] he very concept of impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage. . . ." For discussion of courts' understanding that a common condition cannot be an impairment, see infra Part IV.D.2.
389. See Silvers, supra note 138, at 784 (noting that the disability community has criticized the WHO's conceptual framework as blaming the victim by locating the problem in the deficits of impaired individuals rather than in the failure of society to treat persons equitably).
390. OLIVER, supra note 148, at 35 (emphasis added).
391. E-mail from Anita Silvers, Professor, San Francisco State University (Oct. 5, 1998) (on file with author).
392. See, e.g., Byrne v. Board of Educ., 979 F.2d 560, 564 (7th Cir. 1992) ("The statute's inclusion of the limiting adjectives 'substantial' and 'major' emphasizes that the impairment must be a significant one."); Sweet v. Electronic Data Sys., Inc., No. 95 CIV.3987, 1996 U.S. Dist. LEXIS 5544, at *16 (S.D.N.Y. Apr. 25, 1996) ("Plaintiff's ability to engage in these activities shows that his ability to engage in the major life activity of seeing has not been 'substantially impaired.'"); Trembczsynski v. City of Calumet City, No. 87-C0961, 1987 WL 16604, at *4 (N.D. 111. Aug. 31, 1987) ("Plaintiffs admit they have worked successfully . . . for a number of years. Therefore, Plaintiffs were not impaired."); cf. Sicard v. City of Sioux City, 950 F. Supp. 1420, 1438 (N.D. Iowa 1996) (failing to recognize that mitigating measures might be disregarded in determining impairment, but taken into account in determining substantial limitation). There are also instances when it is unclear in which sense a court is using the term impairment. For example, in Roth v. Lutheran General Hospital, 57 F.3d 1446, 1454 (7th Cir. 1995), Judge Coffey states: "The key is the extent to which the impairment restricts a major life activity; the impairment must be significant one." Here, impairment may be referring either to the limitation on a major life activity or to a bodily condition. The sense of the sentence favors the former interpretation.
393. 105 F.3d 12 (1st Cir. 1997).
394. See id. at 15.
395. Id. at 15-16 (emphasis added).
396. See, e.g., Sutton v. United Airlines, Inc., 130 F.3d 893, 898 (10th Cir. 1997) ("[T] he statute does require that the impairment 'substantially limit' a major life activity. Thus, the impairment must be significant, and not merely trivial.") (citation omitted); Sweet, 1996 U.S. Dist. LEXIS 5544, at *11 ("[T]he ADA protects only a limited class of persons-individuals who suffer from impairments significantly more severe than those encountered by the average person in every-day life.").
397. See, e.g., Cannizzaro v. Neiman Marcus, Inc., 979 F. Supp. 465 (N.D. Tex. 1997) (finding that subdural hematoma, which necessitated brain surgery, did not substantially limit a major life activity); Nave v. Wooldridge Constr. of Pa., Inc., No. 96-2891, 1997 U.S. Dist. LEXIS 9203 (E.D. Pa. June 30, 1997) (finding that Hodgkin's disease did not substantially limit a major life activity).
398. 892 F.2d 212 (2d Cir. 1989). Another widely cited case suggesting that the commonness of a condition may determine whether it should be deemed an impairment is Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986). In an oft-quoted passage, the Fourth Circuit opined: "It would debase this high purpose [of the Rehabilitation Act] if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace. . . ." Id. at 934.
399. Daley, 792 F.2d at 215. See also Fenton v. Pritchard Corp., 926 F. Supp. 1437 (D. Kan. 1996) (finding that common personality traits such as a violent temper are not mental impairments); Clark v. Virginia Bd. of Bar Exam'rs, 861 F. Supp. 512 (E.D. Va. 1994) (rejecting former law student's depression as a disability when evidence showed that 40% of law students experience some depression).
400. See Joyce v. Suffolk County, 911 F. Supp. 92, 96 (E.D.N.Y. 1996) ("The need for corrective eyewear could reasonably be characterized as 'commonplace.'"); Trembczsynski v. City of Calumet City, No. 87-C0961, 1987 WL 16604 (N.D. Ill. Aug. 31, 1987) (reasoning that being slightly myopic is a widely shared physical characteristic, not an impairment as contemplated by the Rehabilitation Act); cf. Venclauskas v. Connecticut, 921 F. Supp. 78 (D. Conn. 1995) (finding "plaintiff's visual 'impairment' [not] to be unusually severe or rare"). Another court has reasoned that the commonness of the need to wear corrective lenses means that a moderate vision impairment does not substantially limit a person's major life activities. See Sweet, 1996 U.S. Dist. LEXIS at *15-*16 (S.D.N.Y. 1996). The other issue that is typically discussed when visually impaired plaintiffs sue under the ADA is whether the measure of the limitations imposed by the impairment should take into account the availability of mitigating measures. In other words, does the court assess the impact of myopia on the plaintiff with his glasses off or on? Compare Wilson v. Pennsylvania State Police Dept., 964 F. Supp. 898 (E.D. Pa. 1997) (availability of mitigating measures should not be considered) with Sutton v. United Airlines, Inc., 130 F.3d 893 (10th Cir. 1997) (availability of mitigating measures should be considered).
401. 29 C.F.R. § 1630.2(h), app. (1998); accord RICHARD POSNER, AGING AND OLD AGE 338-39 (1995) (suggesting that characteristic age-related ailments and deficits may be deemed disabilities).
402. See supra Parts IV.A and IV.B for a discussion of the EEOC's approach to pregnancy and obesity. Some of the concerns about medicalization discussed in these parts may also apply to the ability of an old person to obtain a medical diagnosis identifying a particular disorder that causes the increasing, and disabling, frailty that may accompany advanced age. "[F]railty is very common at an advanced age. It is difficult to know the extent to which that frailty is the result of disease, of the aging process itself, and of disuse, often compounded by neglect and depression." Edward W. Campion, The Oldest Old, 330 NEW ENG. J. MED. 1819, 1819 (1994). Cf. SHERWIN B. NULAND, HOW WE DIE 43-44 (1993) (decrying the insistence of medical examiners that all death certificates state a "cause of death" when a person may simply have died of old age).
403. See supra Parts IV.A and IV.B for a discussion of the EEOC's approach to pregnancy and obesity. Some of the concerns about medicalization discussed in these parts may also apply to the ability of an old person to obtain a medical diagnosis identifying a particular disorder that causes the increasing, and disabling, frailty that may accompany advanced age. "[F]railty is very common at an advanced age. It is difficult to know the extent to which that frailty is the result of disease, of the aging process itself, and of disuse, often compounded by neglect and depression." Edward W. Campion, The Oldest Old, 330 NEW ENG. J. MED. 1819, 1819 (1994). Cf. SHERWIN B. NULAND, HOW WE DIE 43-44 (1993) (decrying the insistence of medical examiners that all death certificates state a "cause of death" when a person may simply have died of old age).
404. See Campion, supra note 359, at 1819 ("Half the people over the age of 84 years have impaired hearing; vision impairment, falls, hip fractures, stroke, cancer, and cardiovascular disease are also common. Nearly a third of the very elderly have some degree of dementia.").
405. See Amundson, supra note 160, at 115. Amundson, however, recognizes that elderly persons with other impairments may face some of the same problems of disability as younger persons with the same impairments.
406. But see WENDELL, supra note 138, at 18 ("It is not obvious to me that the reduction of opportunities experienced by the elderly are any more attributable to nature than the reduction of opportunities experienced by nonelderly people with disabilities.").
407. Cf. James Bovard, The Disabilities Act's Parade of Absurdities, WALL ST. J., June 22, 1995, at A16 (describing settlement of deaf woman's lawsuit against Burger King).
408. See Compliance Manual, supra note 235, at § 902.8(a). The Compliance Manual gives the following example: CP's genetic profile reveals an increased susceptibility to colon cancer. CP is currently asymptomatic and many never in fact develop colon cancer. After making CP a conditional offer of employment, R learns about CP's increased susceptibility to colon cancer. R then withdraws the job offer because of concerns about matters such as CP's productivity, insurance costs, and attendance. R is treating CP as having an impairment that substantially limits a major life activity. See id. For the EEOC's regulatory description of how a person can succeed on a perceived disability claim, see supra note 273.
409. See Lawrence O. Gostin, Genetic Discrimination in Employment and Insurance, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 187 (Jane West ed. 1996); Joseph S. Alper, Does the ADA Provide Protection Against Discrimination on the Basis of Genotype?, 23 J.L. MED. & ETHICS 167 (1995); Mark S. Dichter & Sarah E. Sutor, The New Genetic Age: Do Our Genes Make Us Disabled Individuals Under the Americans with Disabilities Act?, 42 VILL. L. REV. 613 (1997); Brian R. Gin, Genetic Discrimination: Huntingion's Disease and the Americans with Disabilities Act, 97 COLUM. L. REV. 1406 (1997); Kirke D. Weaver, Genetic Screening and the Right Not to Know, 13 ISSUES L. & MED. 243 (1997).
410. See Lawrence O. Gostin, Genetic Discrimination in Employment and Insurance, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 187 (Jane West ed. 1996); Joseph S. Alper, Does the ADA Provide Protection Against Discrimination on the Basis of Genotype?, 23 J.L. MED. & ETHICS 167 (1995); Mark S. Dichter & Sarah E. Sutor, The New Genetic Age: Do Our Genes Make Us Disabled Individuals Under the Americans with Disabilities Act?, 42 VILL. L. REV. 613 (1997); Brian R. Gin, Genetic Discrimination: Huntingion's Disease and the Americans with Disabilities Act, 97 COLUM. L. REV. 1406 (1997); Kirke D. Weaver, Genetic Screening and the Right Not to Know, 13 ISSUES L. & MED. 243 (1997).
411. See Lawrence O. Gostin, Genetic Discrimination in Employment and Insurance, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 187 (Jane West ed. 1996); Joseph S. Alper, Does the ADA Provide Protection Against Discrimination on the Basis of Genotype?, 23 J.L. MED. & ETHICS 167 (1995); Mark S. Dichter & Sarah E. Sutor, The New Genetic Age: Do Our Genes Make Us Disabled Individuals Under the Americans with Disabilities Act?, 42 VILL. L. REV. 613 (1997); Brian R. Gin, Genetic Discrimination: Huntingion's Disease and the Americans with Disabilities Act, 97 COLUM. L. REV. 1406 (1997); Kirke D. Weaver, Genetic Screening and the Right Not to Know, 13 ISSUES L. & MED. 243 (1997).
412. See Lawrence O. Gostin, Genetic Discrimination in Employment and Insurance, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 187 (Jane West ed. 1996); Joseph S. Alper, Does the ADA Provide Protection Against Discrimination on the Basis of Genotype?, 23 J.L. MED. & ETHICS 167 (1995); Mark S. Dichter & Sarah E. Sutor, The New Genetic Age: Do Our Genes Make Us Disabled Individuals Under the Americans with Disabilities Act?, 42 VILL. L. REV. 613 (1997); Brian R. Gin, Genetic Discrimination: Huntingion's Disease and the Americans with Disabilities Act, 97 COLUM. L. REV. 1406 (1997); Kirke D. Weaver, Genetic Screening and the Right Not to Know, 13 ISSUES L. & MED. 243 (1997).
413. See Lawrence O. Gostin, Genetic Discrimination in Employment and Insurance, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 187 (Jane West ed. 1996); Joseph S. Alper, Does the ADA Provide Protection Against Discrimination on the Basis of Genotype?, 23 J.L. MED. & ETHICS 167 (1995); Mark S. Dichter & Sarah E. Sutor, The New Genetic Age: Do Our Genes Make Us Disabled Individuals Under the Americans with Disabilities Act?, 42 VILL. L. REV. 613 (1997); Brian R. Gin, Genetic Discrimination: Huntingion's Disease and the Americans with Disabilities Act, 97 COLUM. L. REV. 1406 (1997); Kirke D. Weaver, Genetic Screening and the Right Not to Know, 13 ISSUES L. & MED. 243 (1997).
414. Compare Gostin, supra note 365 (arguing, inter alia, that failure to protect persons from genetic discrimination will create physical and economic dependence and will discourage individuals from being tested) with Dichter & Sutor, supra note 365 (arguing, inter alia, that protecting individuals with asymptomatic genetic disorders will increase litigation costs).
415. A gene is a single functional unit of hereditary material located upon a chromosome, which is the package in which a single strand of DNA is stored and transmitted. See ROBERT C. KING & WILLIAM D. STANSFIELD, A DICTIONARY OF GENETICS 136 (5th ed. 1997). An individual's genotype is the sum total of all the genes an individual receives from his parents. See id. at 141. No individual expresses every gene within his genotype, however; nor does he express the same genes throughout his life. An individual's phenotype, in contrast to his genotype, is the combination of physical traits displayed by an individual. See id. at 258. These include visible traits, such as eye color, height, and build, and invisible traits, such as the ability to make a particular enzyme.
416. A gene is a single functional unit of hereditary material located upon a chromosome, which is the package in which a single strand of DNA is stored and transmitted. See ROBERT C. KING & WILLIAM D. STANSFIELD, A DICTIONARY OF GENETICS 136 (5th ed. 1997). An individual's genotype is the sum total of all the genes an individual receives from his parents. See id. at 141. No individual expresses every gene within his genotype, however; nor does he express the same genes throughout his life. An individual's phenotype, in contrast to his genotype, is the combination of physical traits displayed by an individual. See id. at 258. These include visible traits, such as eye color, height, and build, and invisible traits, such as the ability to make a particular enzyme.
417. A gene is a single functional unit of hereditary material located upon a chromosome, which is the package in which a single strand of DNA is stored and transmitted. See ROBERT C. KING & WILLIAM D. STANSFIELD, A DICTIONARY OF GENETICS 136 (5th ed. 1997). An individual's genotype is the sum total of all the genes an individual receives from his parents. See id. at 141. No individual expresses every gene within his genotype, however; nor does he express the same genes throughout his life. An individual's phenotype, in contrast to his genotype, is the combination of physical traits displayed by an individual. See id. at 258. These include visible traits, such as eye color, height, and build, and invisible traits, such as the ability to make a particular enzyme.
418. With the exception of Alper, supra note 365, this question has been largely ignored in the commentary.
419. 29 C.F.R. § 1630.2(h) (1998).
420. Mutations can occur in an individual's genotype in one of two general ways. They can be inherited from one's parents, thus producing a uniform mutation carried in every cell of the offspring. Alternatively, mutations can occur through the process of gene duplication, through chromosonal aberrations, or through the effect of mutagens (physical or chemical agents that raise the frequency of mutation above the spontaneous rate) on individual cells. See KING & STANSFIELD, supra note 367, at 224. For duplication, chromosomal, and mutagen mutations, the degree to which a mutation will be uniform throughout an individual's cells depends on how early in cell division the mutation occurs. For example, a mutation that occurs in a gamete will be uniformly present in all the individual's cells, and cancer is often the result of the mutation of a single cell that causes the cell to divide out of control.
421. See Wolf, supra note 29, at 348 (characterizing as a "fiction" the idea that there is such a thing as a "'normal' genotype").
422. How genetic mutations contribute to particular diseases or disorders has in many cases not yet been discovered by science and is currently the focus of intense scientific investigation. Of necessity, then, the points that follow are simplifications and generalizations regarding extremely complex and diverse matters; these points are raised simply to provoke thought on how genetic mutations logically fit (or do not fit) within the legal definition of impairment. It is unclear whether a mutated gene functions atypically throughout an individual's life or whether atypical functioning is triggered by environmental factors. Even if a gene functions atypically throughout an individual's life, its atypical functioning may not have an adverse impact on any bodily system for many years, if ever. For example, in the case of the "breast cancer genes," BRCA1 and BRCA2, the function of the genes that are mutated is the production of tumor suppressing enzymes. Accordingly, the failure of these genes to function typically would appear to have an impact on the woman's body only once a tumor starts growing. Cf. Patricia Kahn, Coming to Grips with Genes and Risk, 274 SCIENCE 496 (1996).
423. See Gin, supra note 365, at 1423 (recognizing the similarities between HIV-positive status and Huntington's disease); see also Weaver, supra note 365 (arguing that asymptomatic genetic disorders are likely to fall within the third prong of the ADA's definition of "disability" because HIV has been found to do so).
424. See Bragdon v. Abbott, 118 S. Ct. 2196, 2204 (1998).
425. See Peter D. Blanck & Mollie W. Marti, Attitudes, Behavior and the Employment Provisions of the Americans with Disabilities Act, 42 VILL. L. REV. 345, 386-87 (1997).
426. Cf. Gin, supra note 365, at 1414-15 (acknowledging line-drawing problem).
427. See Ruth Hubbard & R. C. Lewontin, Pitfalls of Genetic Testing, 334 NEW ENG. J. MED. 1192, 1192 (1996) (arguing that current genetic testing technology cannot adequately take into account the complexity of genetic diseases); Pamela S. Karnes, Ordering and Interpreting DNA Tests, 71 MAYO CLINIC PROC. 1192, 1192-94 (1996) (stating that, for a majority of genetic disorders, accurate genetic testing currently cannot be performed due to the vast number of different mutations causing a particular disorder); Stephen G. Post et al., The Clinical Introduction of Genetic Testing for Alzheimer's Disease, 277 JAMA 832, 833-34 (1997) (stating that the inaccuracy of genetic tests for Alzheimer's has led numerous governmental and scientific committees to recommend against its use as a predictive assessment of asymptomatic individuals).
428. See Ruth Hubbard & R. C. Lewontin, Pitfalls of Genetic Testing, 334 NEW ENG. J. MED. 1192, 1192 (1996) (arguing that current genetic testing technology cannot adequately take into account the complexity of genetic diseases); Pamela S. Karnes, Ordering and Interpreting DNA Tests, 71 MAYO CLINIC PROC. 1192, 1192-94 (1996) (stating that, for a majority of genetic disorders, accurate genetic testing currently cannot be performed due to the vast number of different mutations causing a particular disorder); Stephen G. Post et al., The Clinical Introduction of Genetic Testing for Alzheimer's Disease, 277 JAMA 832, 833-34 (1997) (stating that the inaccuracy of genetic tests for Alzheimer's has led numerous governmental and scientific committees to recommend against its use as a predictive assessment of asymptomatic individuals).
429. See Ruth Hubbard & R. C. Lewontin, Pitfalls of Genetic Testing, 334 NEW ENG. J. MED. 1192, 1192 (1996) (arguing that current genetic testing technology cannot adequately take into account the complexity of genetic diseases); Pamela S. Karnes, Ordering and Interpreting DNA Tests, 71 MAYO CLINIC PROC. 1192, 1192-94 (1996) (stating that, for a majority of genetic disorders, accurate genetic testing currently cannot be performed due to the vast number of different mutations causing a particular disorder); Stephen G. Post et al., The Clinical Introduction of Genetic Testing for Alzheimer's Disease, 277 JAMA 832, 833-34 (1997) (stating that the inaccuracy of genetic tests for Alzheimer's has led numerous governmental and scientific committees to recommend against its use as a predictive assessment of asymptomatic individuals).
430. For a valiant, though to my mind ultimately unconvincing, argument to the contrary, see Alper, supra note 365, at 168-69 (arguing that "an altered genotype that is associated with a disease is both an anatomical loss and a physiological disorder").
431. Francis v. City of Meriden, 129 F.3d 281, 287 (1st Cir. 1997).
432. See supra text accompanying note 205.
433. See supra text accompanying notes 262-63.
434. See Hahn, supra note 152 (arguing for more social science research into the creation of disability).
435. Compare Amundson, supra note 160 (distinguishing chronic illness and age frailty from disability) with WENDELL, supra note 138 (including chronic illness and age frailty in her discussion of disabilities).
436. The breadth of any actual list, of course, would depend on numerous factors that could affect the political dynamic involved in composing the list.
437. I recognize that focusing on whom disability discrimination ought to protect is not the only way to respond to the current confusion in the courts. An alternative approach would be to focus on the type of action prohibited rather than on the type of person protected. Anita Silvers suggests false theorizing about the impact of an actual or putative impairment on a plaintiff's abilities as one type of prohibited action. See Silvers, supra note 295.
438. See Dick Thornburgh, The Americans with Disabilities Act: What It Means to All Americans, 64 TEMP. L. REV. 375, 384 (1991) ("The ADA is social legislation to end barriers. . . . [W] e do need some consciousness-raising about Americans with disabilities, especially since our mistaken attitudes are often so well-meaning and so ingrained.").