Disability, vulnerability, and the limits of antidiscrimination

Washington Law Review

Volumn 83, Issue 4, 2008, Pages 513-568

  Satz, Ani B ^a  

^a EMORY UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 61449177779     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (258)

1. Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101-12213 (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
2. Id. § 12101(a)(7) ("[I]ndividuals with disabilities are a discrete and insular minority[.]"). While the ADA Amendments Act of 2008 strikes this language, it retains the threshold test for protected class membership. Pub. L. No. 110-325, § 3, 122 Stat. 3553, 3555(2008).
3. 42 U.S.C. § 12112 (employment); § 12132 (public services including transportation); § 12182 (public accommodation and public transportation operated by private entities).
4. Id. § 12101(a)(7)-(9) (discussing disability as a protected class, equality of opportunity, and the need for disabled individuals to "compete on an equal basis").
5. Id.
6. Id. §§ 12183-84.
7. Id. §§ 12142-48,12184.
8. Id. § 12111(9).
9. See, e.g., Americans with Disabilities Act of 1989: Hearings on S. 933 Before the Subcomm. on the Handicapped of the S. Comm. on Labor and Human Resources, 101st Cong. 7 (1989) (statement of Rep. Tony Coelho) ("We are not looking for welfare .... We just want an opportunity to be able to live and be able to have an opportunity to work ... to be productive citizens. We know that there is going to have to be accommodations to give us our basic civil rights."); see also Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579, 636-40 (2004) (discussing congressional intent to address the exclusion of disabled persons from the workforce with the reasonable accommodation mandate).
10. 42 U.S.C. § 12101(b)(3); see also Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights Model, 21 BERKELEY J. EMP. & LAB. L. 19, 37 (2000) ("[T]he ADA was critically important to the establishment of a major federal commitment to the mission of employing people with disabilities and providing them with vastly expanded access to public programs and accommodations.").
11. See Paul Steven Miller, The EEOC's Enforcement of the Americans with Disabilities Act in the Sixth Circuit, 48 CASE W. RES. L. REV. 217, 221 (1998) (discussing 42 U.S.C. § 12112(d)).
12. See, e.g., Nondiscrimination on the Basis of Disability in State and Local Government Services, 73 Fed. Reg. 34,469 (proposed June 17, 2008) (to be codified at 28 C.F.R. Pt. 35) (proposing regulations to address commentator views that "more than seventeen years after the enactment of the ADA, as facilities are becoming physically accessible to individuals with disabilities, the Department [of Justice] needs to focus on second-generation issues that ensure . . . accessible elements . . . such as ticketing in assembly areas and reservations of boat slips."); see also 153 CONG. REC. S10211 (2007) (Statement of Sen. Harkin) ("We have made great advances: . .. curb cuts, accessible buses, accessible trains, widened doors. Every building now built in the United States of America is fully accessible."). But see Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation, 54 UCLA L. REV. 1, 4 (2006) ("[TJestimony from advocates across the country affirms that many if not most businesses remain inaccessible, even in circumstances where it would be easy to remove barriers.").
13. See 153 CONG. REC. S10210-11 (2007) (Statement of Sen. Harkin) ("[W]hen I first came to the House and then to the Senate to work on these issues, the issues [were about] the discrimination against Americans with disabilities and how people with disabilities had been kept out of the mainstream of American life, how they had been shunted aside, warehoused, categorized in ways that demean their personhood in ways that prevented them from contributing all they could to our American society.... We now include people with disabilities under a broad civil rights umbrella.... We have made great advances since that time."); see also Paul Steven Miller, Reclaiming the Vision: The ADA and Definition of Disability, 41 BRANDEIS L.J. 769, 777 (2003) ("I was told [in the 1980s] by one law firm that even though they personally did not have a problem with my size [short stature], they feared that their clients would think that they were running ... 'a circus freak show' if their clients were to see me as a lawyer in their firm."); cf. Americans with Disabilities Act of 1988: Joint Hearing Before the S. Subcomm. on the Handicapped and the H. Subcomm. on Select Educ, 100th Cong. 75 (1988) (statement of Judith Heumann, World Inst. of Disability) ("In 1981, an attempt was made to forceably [sic] remove me and another disabled friend [in wheelchairs] from an auction house because we were 'disgusting to look at.'").
14. Sharona Hoffman et al., The Definition of Disability in the Americans With Disabilities Act: Its Successes and Shortcomings: Proceedings of the 2005 Annual Meeting, Association of American Law Schools Sections on Employment Discrimination Law; Labor Relations and Employment Law: and Law, Medicine and Health Care, 9 EMPL. RTS. & EMPLOY. POL'Y J. 473,492 (2005).
15. See, e.g., DAVID C. STAPLETON, RICHARD V. BURKHAUSER & ANDRED J. HUNTVILLE, HAS THE EMPLOYMENT RATE OF PEOPLE WITH DISABILITIES DECLINED? 1-4 (2004), available at http://digitalcommons.ilr.cornell.edu/edicollect/92 (discussing a decline in the employment of disabled individuals of working age based on Current Population Survey Data), permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513nl5.pdf; Daron Acemoglu & Joshua D. Angrist, Consequences of Employment Protection? The Case of the Americans with Disabilities Act, 109 J. POL. ECON. 915, 929 (finding a sharp decline in 1993 of the employment of disabled men between twenty-one and thirty-nine years old, and in 1992 a decline for women of the same age; both measurements are relative to the employment of workers without disability within the same age ranges); Kathleen Beegle & Wendy A. Stock, The Labor Market Effects of Disability Discrimination Laws, 38 J. HUM. RESOURCES 806, 850 (2003) (finding state disability discrimination laws did not result in a decrease in employment for disabled persons prior to the enactment of the ADA).
16. See, e.g., Christine Jolls & J.J. Prescott, Disaggregating Employment Protection: The Case of Disability Discrimination, 5 (Nat'l Bureau Econ. Research Working Paper Services, 2004), available at http://www.nber.org/papers/wl0740 (finding causal relation in years immediately following enactment of the ADA), permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513nl6.pdf; cf. John J. Donohue, III & James J. Heckman, The Law and Economics of Racial Discrimination in Employment: Re-Evaluating Federal Civil Rights Policy, 79 GEO. L.J. 1713 (1991) (arguing that civil rights protections decreased employment of persons of color).
17. See, e.g., Jolls & Prescott, supra note 16 at 2.
18. See, e.g., Acemoglu & Angrist, supra note 15, at 917 ("[T]he negative effects of the ADA may have been due more to the costs of accommodation than to the threat of lawsuits for wrongful termination, though poor measurement of separation rates may also account for this result."). But see Jolls & Prescott, supra note 16, at 4 (arguing that employee discharge litigation costs are not a factor in the employment of disabled individuals); cf. Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies, supra note 12 (arguing that litigation is a way of enforcing the reasonable accommodation mandate).
19. See, e.g., Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 26-34 (2004). The significance of health care coverage for employment may be overstated, however. Australians have universal health care and a three to four percent higher unemployment rate for disabled than nondisabled workers. See Australian Bureau of Statistics, Disability, Ageing and Careers: Summary of Findings (2003), at 26, available at http://www.ausstats.abs.gov.au/ ausstats/subscriber.nsf/0/ 978A7C78CC 11B702CA256F0F007B1311 /$File/44300-2003 .pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513nl9. pdf.
20. Social Security Disability Insurance (SSDI) is paid to individuals with previous sufficient payroll contributions. See SOC. SEC. ADMIN, 2008 RED BOOK, available at http://www.ssa.gov/redbook/eng/overview-disability.htm [hereinafter RED BOOK], permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n20a.pdf. Monthly support increases with previous earnings, though the average estimate for 2008 is $1,004 to each individual per month. See SOC. SEC. ADMIN, FACT SHEET SOCIAL SECURITY: 2008 SOCIAL SECURITY CHANGES, available at http://www.socialsecurity.gov/pressoffice/factsheets/ colafacts2008.pdf, permanent copy available at http://www.law.washington. edu/wlr/notes/83washlrev513n20b.pdf. Recipients of SSDI are eligible for Medicare. See RED BOOK. Supplemental Security Income (SSI) is a means-tested program paying $637 per month in 2008. See id. Individuals receiving SSDI are also eligible for Medicaid. Id. Both SSDI and SSI benefits are predicated on an inability to work. See id. Under the Ticket to Work and Work Incentives Improvement Act of 1999, individuals who return to work may be able to maintain limited health coverage and cash payments. Pub. L. No. 106-170, 113 Stat. 1860 (1999) (codified at 42 U.S.C. § 1320b-19 (2000)). Medicare beneficiaries may keep their insurance for eight and a half years. Id. § 202. Medicaid coverage may be extended or available for purchase. Id. § 201. Generally speaking, cash payments are phased out, given sufficient wages. See RED BOOK.
21. Title III requires that health insurance offices be accessible as places of public accommodation, but health insurers may determine what health care services are covered under their policies, so long as distinctions are not made on the basis of disability. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1116 (9th Cir. 2000); McNeil v. Time Ins. Co., 205 F.3d 179, 185-89 (5th Cir. 2000); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 558-60 (7th Cir. 1999); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-14 (3d Cir. 1998); Lenox v. Healthwise of Ky., Ltd., 149 F.3d 453, 455-57 (6th Cir. 1998). But see Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32-33 (2d Cir. 1999) ("We believe an entity covered by Title III is not only obligated by the statute to provide disabled persons with physical access, but is also prohibited from refusing to sell them its merchandise by reason of discrimination against their disability."). Similarly, Title II, which pertains to public services, does not apply to benefits coverage of state health care plans. See, e.g., Rogers v. Dep't of Health & Envtl. Control, 174 F.3d 431 (4th Cir. 1999). Under Title I, employers who act as insurers are prohibited from making "disability-based distinctions"-treating individuals with disabilities differently from other insureds-but this limitation does not require employers to provide any particular benefits, including mental health services. See supra notes 241-46 and accompanying text. A disability-based distinction is one based on a particular disability, a discrete group of disabilities, or disability in general. See id.; see also Mental Health Parity and Addiction Equity Act of 2008, H.R. 1424, 110th Cong. § 511 (2008).
22. See 42 U.S.C. §§ 12142-44, 12148, 12184(2000).
23. See, e.g., Liberty Res., Inc. v. Se. Pa. Trans. Auth., 155 F. Supp. 2d 242, 244, 257-58 (E.D. Pa. 2001), vacated and appeal dismissed after compliance with court order, 54 F. App'x 769 (3d. Cir. 1992) (finding liability under Title II for a transportation authority that effectively split Paratransίt rides between elderly and disabled riders).
24. An interactive process is recommended by the EEOC. See 29 C.F.R. pt. 1630 app. (2008). The process is adopted in many jurisdictions. See, e.g., Dargis v. Sheahan, No. 05-2575, 2008 U.S. App. LEXIS 10526, at * 19-20 (7th Cir. May 16, 2008) (holding that an interactive process is mandatory but not an independent cause of action); Buboltz v. Residential Advantages, Inc., No. 07-2065, 2008 U.S. App. LEXIS 8380, at *12 (8th Cir. Apr. 18, 2008) (holding that an interactive process is mandatory and failure to engage in such a process is evidence of bad faith); Freadman v. Metro. Prop. & Cas. Fire Ins. Co., 484 F.3d 91, 104 (1st Cir. 2007) (holding that an interactive process is mandatory); Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 (5th Cir. 2007) (same); Kleiber v. Honda, 485 F.3d 862, 871 (6th Cir. 2007) (same); Dark v. Curry County, 451 F.3d 1078, 1088 (9th Cir. 2006) (same); Williams v. Philadelphia Hous. Auth., 380 F.3d 751, 771-72 (3d Cir. 2004) (holding that an interactive process is mandatory though not an independent cause of action; further holding that there is no liability if reasonable accommodation is not possible); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-72 (10th Cir. 1999) (holding that an interactive process is mandatory); Kitchen v. Summers Continuous Care Ctr., LLC, No. 5:06-00022, 2008 U.S. Dist. LEXIS 38419, at *15 (S.D. W. Va. May 12, 2008) (holding that an interactive process is mandatory but not an independent cause of action; further holding that there is no liability if reasonable accommodation is not possible). But see Sullivan v. Raytheon Co., 262 F.3d 41, 48 (1st Cir. 2001) (holding that an interactive process is not mandatory); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286-87 (11th Cir. 1997) (finding that use of an interactive process is subject to case-by-case assessment).
25. 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.9(2008).
26. 29 C.F.R. pt. 1630 app. ("The accommodation... does not have to be the 'best' accommodation possible, so long as it is sufficient to meet the job-related needs of the individual.... If more than one of these accommodations will enable the individual to perform the essential functions ... the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.").
27. See Ani B. Satz, A Jurisprudence of Dysfunction: On the Role of "Normal Species Functioning " in Disability Analysis, 6 YALE J. HEALTH POL'Y L. & ETHICS 221, 225-58 (2006).
28. 42 U.S.C. § 12111(9) (discussing modifications to the physical workplace environment, job-restructuring, and other workplace-specific alterations); see also Bagenstos, The Future of Disability Law, supra note 19, at 42.
29. See, e.g., ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2, 122 Stat. 3553 (2008).
30. See Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 HARV. C.R.-C.L. L. REV. 99, 100, 110-26, 133-37, 145-50, 153-56 (1999) (discussing the frequent use of summary judgment and the failure to defer to EEOC regulations that are favorable to establishing disability). This statistic does not account for the success of the ADA as measured by settlements and other informal arrangements. See Sharona Hoffman, Settling the Matter: Does Title I of the ADA Work? 59 ALA. L. REV. 305 (2008).
31. The U.S. Supreme Court has narrowly interpreted the disability threshold test, that is, whether one is "substantially limited in a major life activity." See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 201 (2002) (finding that a factory worker who cannot perform '"repetitive work with hands and arms extended at or above shoulder level ... for extended periods of time"' but who is able to complete a number of household tasks is not substantially limited in the major life activity of performing manual tasks under the ADA). The Court also reads restrictively both "substantial" and "major life activity." In Toyota, the Court held that the test for whether a function is a major life activity is whether it is of "central importance to most people's daily lives." 534 U.S. at 197-98. An individual is "substantially limited" if she is "unable to perform... [or is] [significantly restricted as to the condition, manner, or duration under which [she] can perform a particular major life activity as compared to . .. the average person in the general population[.]" 29 C.F.R. § 1630.2(j) (2008). In four of the last five major cases addressing the meaning of "substantial," the Court found for the defendant. Compare Toyota, 534 U.S. at 184 (not "substantially limited" because the plaintiff is not "severely restrict[ed]"), and Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) (not "substantially limited"), and Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999) (same), and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) (same), with Bragdon v. Abbott, 524 U.S. 624 (1998) ("substantially limited").
32. Satz, A Jurisprudence of Dysfunction, supra note 27.
33. The Act was signed into law on September 25, 2008, and will take effect January 1, 2009. AAA§8.
34. Id. § 4(a). See infra note 125 for a list of mitigating measures.
35. See, e.g., Sutton, 527 U.S. at 471 (not disabled using eyeglasses); Kirkingburg, 527 U.S. at 555 (not disabled when brain compensates for monocular vision); Murphy, 527 U.S. at 516 (not disabled when medicated for severe hypertension).
36. See Satz, A Jurisprudence of Dysfunction, supra note 27, at 243-48.
37. See, e.g., Michael Ashley Stein & Penelope J.S. Stein, Beyond Disability Civil Rights, 58 HASTINGS L.J. 1203, 1212-25 (2007) (appealing to a human rights paradigm); Bagenstos, The Future of Disability Law, supra note 19, at 54-70 (appealing to social welfare models); Diller, supra note 10, at 38-47 (noting limitations of the civil rights model).
38. See, Bagenstos, The Future of Disability Law, supra note 19, at 54-70; William G. Johnson, The Future of Disability Policy: Benefit Payments or Civil Rights? 549 ANNALS AM. ACAD. POL. & SOC. SCI. 160, 170-72 (1997); Mark C. Weber, Disability and the Law of Welfare: A Post-Integrationist Examination, 2000 U. ILL. L. REV. 889, 940-56 (2000). The tension between the social welfare and antidiscrimination models addressed in this Article is related to debates in other literatures, namely those between substantive and formal equality (actual equality versus sameness treatment), result and rule orientation (outcome versus procedural fairness), and distributive and formal justice (redistribution of material goods versus sameness treatment).
39. See ANITA SILVERS, DAVID WASSERMAN & MARY B. MAHOWALD, DISABILITY, DIFFERENCE, DISCRIMINATION: PERSPECTIVES OF JUSTICE IN BIOETHICS AND PUBLIC POLICY 74-76 (1998).
40. Johnson, supra note 38, at 161-63.
41. See supra note 20 and accompanying text. The Federal Rehabilitation Act of 1973, 29 U.S.C. §§ 705-08 (2000), is also viewed as embracing a social welfare approach to disability to the extent that the Act seeks to compensate the disabled worker through rehabilitation rather than altering the disabling environment. The Act is now "read through" ADA jurisprudence. See 29 C.F.R. § 1614.203 (2008) ("The standards used to determine whether section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has been violated .. . shall be the standards applied under Titles I and V (sections 501 through 504 and 510) of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201), as such sections relate to employment. These standards are set forth in the Commission's ADA regulations at 29 CFR part 1630.").
42. See, e.g., Bagenstos, The Future of Disability Law, supra note 19, at 54-70; see also Samuel Bagenstos, Mend It, Don't End It, in THE AMERICANS WITH DISABILITIES ACT: EMPIRICAL PERSPECTIVES (Samuel Estreicher & Michael Ashley Stein, eds., forthcoming), permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n42.pdf.
43. Nonhuman animals may, of course, also experience disability.
44. Martha Albertson Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 YALE J.L. & FEMINISM 1 (2008).
45. Id. at 1.
46. Id. at 9-10.
47. Fineman prefers to speak in terms of "disadvantage" instead of "discrimination," as she believes the former better captures the ills of privilege. Id. at 16. Further, "discrimination" invokes the protected class status of formal equality that she rejects as harmful to the very individuals it is designed to protect. Fineman acknowledges, however, that disadvantage may give rise to discrimination. Id. at 44 n.7 ("I acknowledge that discrimination does exist, and I do recognize that. . . personal characteristics might work to complicate the experience of vulnerability for any individual. My claim is merely that discrimination models based on identity characteristics will not produce circumstances of greater equality and may in fact lead to less in many circumstances.") (emphasis added).
48. Identity categories result from grouping individuals socially, culturally, or politically; gender, race, sexual orientation, religious affiliation, and disability may be viewed as identity categories.
49. Fineman, The Vulnerable Subject, supra note 44, at 4.
50. Id. at 19-22.
51. Id. at 8.
52. Id. at 12.
53. See, e.g., Universal Declaration on Bioethics and Human Rights, art. VIII, UNESCO G.C. Res., 33/24, U.N. Doc. C/Res/33/24 (Oct. 19, 2005), available at http://portal.unesco.org/shs/en/ev.php-URL-ID= 1883&URL-DO=DO-TOPIC&URL-SECTION= 201.html (discussing "human vulnerability"), permanent copy available at http://www.law. washington.edu/wlr/notes/83washlrev513n53.pdf.
54. Peader Kirby, Roundtable Discussion with Bryan S. Turner & Peadar Kirby, Vulnerable Populations Speaker Series, Emory University School of Law (Apr. 17, 2008); see also PEADAR KIRBY, VULNERABILITY AND VIOLENCE: THE IMPACT OF GLOBALISATION ch. 3 (2006) (discussing the evolution of the term "vulnerability" in the international context).
55. Fineman makes a similar point. Fineman, The Vulnerable Subject, supra note 44, at 8.
56. The concept of the liberal subject is informed by the philosophy of Immanuel Kant, which separates the individual from the external world (the subject/object distinction). Rawls famously describes the liberal subject at an original or neutral position, unaware of her social lot in life. JOHN RAWLS, A THEORY OF JUSITCE 19-21 (1971). Rawl's subject is "[a] normally active and fully cooperating member[] of society over a complete life," or perceived as healthy over a lifetime. John Rawls, Social Unity and Primary Goods, in UTILITARIANISM AND BEYOND 159, 168 (Amartya Sen & Bernard Williams eds., 1982).
57. Fineman, The Vulnerable Subject, supra note 44, at 11-12.
58. Id. at 12-13. Fineman questions, for example, the robust legal structures that further corporate practice and distribute wealth to few. Id. at 20-22.
59. Id. at 15-18.
60. Id. at 15-16.
61. See, e.g., James Leonard, The Equality Trap: How Reliance on Traditional Civil Rights Concepts has Rendered Title I of the ADA Ineffective, 56 CASE W. RES. L. REV. 1, 43 (2005).
62. Fineman, The Vulnerable Subject, supra note 44, at 17-18.
63. See, e.g., Ani B. Satz, The Limits of Health Care Reform, 59 ALA. L. REV. 1451, 1483 (2008) (discussing the double jeopardy of individuals with poor health status or in advanced age who are disadvantaged by rationing schemes); see also infra note 251 and accompanying text.
64. Fineman, The Vulnerable Subject, supra note 44, at 19-22. Fineman argues that "[v]ulnerability. . . freed from its limited and negative associations is a powerful conceptual tool with the potential to define an obligation for the state to ensure a richer and more robust guarantee of equality than is currently afforded under the equal protection model." Id. at 8-9.
65. Id. at 19.
66. Id. at 22.
67. Id.
68. Id. at 22-23.
69. Id. at 23.
70. Fineman, The Vulnerable Subject, supra note 44, at 13 (citing PEADAR KlRBY, VULNERABILITY AND VIOLENCE (2006)).
71. MARTHA ALBERSTON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY 38-39, 208 (2004).
72. Fineman, The Vulnerable Subject, supra note 44, at 2.
73. Id. at 3.
74. Fineman defines the "state" as "an organized and official set of linked institutions that together hold coercive power, including the ability to make and enforce mandatory legal rules, and which is legitimated by claim to public authority. In form the 'state' could be locally, nationally, transnationally, or internationally organized."). Id. at 6 n.14.
75. Id. at 5-6.
76. Id. at 19.
77. Id. at 3, 5.
78. Fineman, The Vulnerable Subject, supra note 44, at 20.
79. See, e.g., Leonard, supra note 61, at 45-46; Bagenstos, The Future of Disability Law, supra note 19, at 37 (speaking of an "access/content distinction": disabled individuals have access to the same benefits as individuals who are not disabled, though the content of the benefit is not altered to meet the needs of disabled individuals).
80. See, e.g., Bagenstos, The Future of Disability Law, supra note 19, at 42-50; Michael Ashley Stein, Disability Human Rights, 95 CAL. L. REV. 75, 92-93 (2007).
81. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 43 (2006); Stein, Same Struggle, Different Difference, supra note 9, at 637-40; Stein & Stein, supra note 37, at 1210-11.
82. See infra note 216 and accompanying text.
83. See supra notes 25-28 and accompanying text. State sovereign immunity may be abrogated when states fail to make disability accommodations that support basic constitutional rights. See United States v. Georgia, 546 U.S. 151 (2006) (holding that Title II abrogates state sovereign immunity when conduct violates the Fourteenth Amendment); Tennessee v. Lane, 541 U.S. 509 (2004) (holding that Title II abrogates state sovereign immunity with respect to the fundamental right of access to courts).
84. See, e.g., Bonnie Poitras Tucker, The Supreme Court's Definition of Disability Under the ADA: A Return to the Dark Ages, 52 ALA. L. REV. 321, 373-74 (2000); Cheryl L. Anderson, "Deserving Disabilities": Why the Definition of Disability Under the Americans with Disabilities Act Should Be Revised to Eliminate the Substantial Limitation Requirement, 65 Mo. L. REV. 83 (2000); Lisa Eichhorn, Major Litigation Activities Regarding Major Life Activities: The Failure of the "Disability" Definition in the Americans with Disabilities Act of 1990, 77 N.C. L. REV. 1405 (1999). Michael Stein's scholarship regarding disability as a human right is a notable exception, as he acknowledges that the "group classified as 'disabled' often overlaps significantly with other socially marginalized groups .... This connection underscores the universality of disability, both as a human rights issue and as part of the human experience." Stein & Stein, supra note 37, at 1240. Stein refers to the universality of disability, whereas Fineman is concerned with vulnerability.
85. I borrow this expression from a conversation with Rosemarie Garland-Thomson, Professor of Women's Studies, Emory University.
86. Fineman, The Vulnerable Subject, supra note 44, at 10.
87. See supra notes 56-58 and accompanying text.
88. See supra note 57 and accompanying text. The concept of the vulnerable subject overcomes a limitation in Martha Nussbautn's work addressing obligations to disabled persons. Under Nussbaum's capabilities model, disabled individuals with profound impairments may not be able to realize the capabilities she suggests a state must maximize for each individual to promote human dignity. MARTHA NUSSBAUM, FRONTIERS OF JUSTICE 76-78, 179-81, 192-93 (2006); see also Stein, Disability Human Rights, supra note 80, at 105 (discussing this limitation of Nussbaum's theory).
89. See, e.g., 42 U.S.C. § 12101(a)(8)-(9) (2000) (stressing the need to eliminate dependency and to promote independent living); see also Americans with Disabilities Act of 1989: Hearing Before H. Subcomm. on Public Works and Transport., 101st Cong. 13, 14 (1989) (statement of Roland Moss); id. at 89 (statement of David M. Capozzi); Americans with Disabilities Act of 1989: Hearing Before the H. Subcomm. on Educ. and Labor, 101st Cong. 8 (1989) (statement of Hon. Steve Bartlett); id. at 44-47, 51 (statement of Judith Comfort); id. at 47, 61-63 (statement of Robert Mosbacher); id. at 96-98 (statement of Dr. William A. Spencer); id. at 133, 149 (statement of Kathy Wingen); id. at 278-79, 284 (statement of Oral O. Miller); id. at 504, 507, 510 (statement of Robert M. Werth). The ADA of 1990 is based on a publication of the National Council of the Handicapped. See TOWARD INDEPENDENCE: AN ASSESSMENT OF FEDERAL LAWS AND PROGRAMS AFFECTING PERSONS WITH DISABILITIES-WITH LEGISLATIVE RECOMMENDATIONS (1986).
90. See, e.g., SUSAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 145 (1996).
91. See, e.g., SILVERS, WASSERMAN & MAHOWALD, supra note 39, at 103.
92. Fineman, The Vulnerable Subject, supra note 44, at 14 (arguing that her theory of universal vulnerability applies to education, health, and employment systems).
93. Diller, Judicial Backlash, supra note 10, at 47 ("If differential and individualized treatment [under the reasonable accommodation mandate] is necessary for the establishment of equal opportunity for people with disabilities, it may also be necessary for other groups.").
94. Id. at 49-50.
95. See, e.g., Bagenstos, The Future of Disability Law, supra note 19, at 43-44, 47.
96. See, e.g., Bagenstos, The Structural Turn, supra note 81, at 4 ("The challenge for civil rights advocates, then, is not to devise new doctrines so much as it is to convince judges and the broader political community that employers should be held responsible for structural problems of workplace inequality when they are not taking sufficient steps to counteract those problems.").
97. Catherine R. Albiston, The Institutional Context of Civil Rights, Remarks at the Annual Meeting of the Law and Society Association, Montreal, Canada (May 30, 2008) (discussing a forthcoming monograph); see also Bagenstos, The Structural Turn, supra note 81, at 4.
98. The AAA, however, strikes 42 U.S.C. § 12101(a)(7), which states in part that "individuals with disabilities are a discrete and insular minority." ADA Amendments Act of 2008, Pub. L. No. 110-325, § 3, 122 Stat. 3553, 3555 (2008). See also infra notes 112-13 and accompanying text.
99. See, e.g., Cheryl L. Anderson, "Deserving Disabilities": Why the Definition of Disability Under the Americans with Disabilities Act Should Be Revised to Eliminate the Substantial Limitation Requirement, 65 Mo. L. REV. 83 (2000); Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It? 21 BERKELEY J. EMP. & LAB. L. 91 (2000); Bonnie Poitras Tucker, The Supreme Court's Definition of Disability Under the ADA: A Return to the Dark Ages, 52 ALA. L. REV. 321 (2000).
100. See, e.g., 154 CONG. REC. E1376 (daily ed. June 26, 2008) (statement of Rep. Capps) (co-sponsor); 154 CONG. REC. H6083-84 (daily ed. June 25, 2008) (statement of Rep. Jackson-Lee).
101. 42 U.S.C. §§ 12111-17 (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
102. Id. §§ 12142-44, 12148, 12182(b)(2)(B), 12184.
103. Id. §§ 12181-89.
104. Id. § 12181(7)(C) (covering "motion picture house").
105. See, e.g., Todd v. Am. Multi-Cinema, Inc., No. H-02-1944, 2003 U.S. Dist. LEXIS 25317, at * 13-15 (S.D. Tex. Aug. 6, 2003) (holding that installing closed captioning, which is viewable only to those who choose it, poses an undue burden on defendant theaters); Cornilles v. Regal Cinemas, Inc., No. 00-173-AS, 2002 U.S. Dist. LEXIS 7025, at *15-22 (D. Or. Jan. 3, 2002) (holding that there is no obligation under the regulations to provide either closed captioning or open captioning, which is visible to all in a theater). But see Ball v. AMC Entm't, Inc., 315 F. Supp. 2d 120, 126-32 (D.D.C. 2003) (approving a joint motion for settlement providing closed captioning).
106. See, e.g., JUDITH BUTLER, UNDOING GENDER (2004); JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY (1999); MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW (1990); MARTHA MINOW, NOT ONLY FOR MYSELF: IDENTITY, POLITICS, AND THE LAW (1997); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV.L.REV. 1331(1988).
107. 42 U.S.C. § 12101(a)(7).
108. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).
109. See Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion).
110. 42 U.S.C. §12101(a)(7).
111. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 3, 122 Stat. 3553, 3555 (2008).
112. Id. § 4.
113. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) ("substantially" is to be "interpreted strictly to create a demanding standard for qualifying as disabled").
114. Id. at 198 (an impairment "must... prevent[] or severely restrict[] the individual from doing activities that are of central importance to most people's daily lives").
115. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 481-89 (1999) (not disabled using eyeglasses); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521 (1999) (not disabled when medicated for severe hypertension); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565-66 (1999) (not disabled when brain compensates for monocular vision).
116. AAA§4(a).
117. Id. § 2(b)(5).
118. 42 U.S.C. § 12101(a)(1) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325,122 Stat. 3553 (2008); AAA § 3.
119. Sutton, 527 U.S. at 488-89 (holding that twin sisters with severe myopia are not disabled); Murphy, 527 U.S. at 521 (holding that a mechanic who manages his severe hypertension with drugs is not disabled); Kirkingburg, 527 U.S. at 565-66 (holding that a truck driver with monocular vision is not disabled).
120. AAA §§ 2(b)(2), 4(a).
121. Id. §§ 2(b)(4M6).
122. Id. §§ 2(b)(4), 4(a).
123. Id. § 2(b)(3) (returning to the standard articulated in Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 282-86 (1987)).
124. This is consistent with the original EEOC regulations, which were disregarded by the Court in its 1990 trilogy of cases. The Court argued that the EEOC did not have authority to issue regulations with regard to the definition of disability, which is located in the introductory material to the ADA and outside its titles. Sutton, 527 U.S. at 479. While the AAA specifically grants rule-making authority to the EEOC with regard to the definition of disability, it fails to discuss deference to agency regulations. See AAA § 6(a)(2).
125. quot;Mitigating measures" include: (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids, and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications. AAA § 4(a). "Auxiliary aids and services" are defined as (A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; (B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; (C) acquisition or modification of equipment or devices; (D) and other similar services and actions. Id.
126. Id.
127. Id. § 5(b).
128. 534 U.S. 184(2002).
129. AAA § 2(b)(4) (citing Toyota Motor Mfg. of Ky., Inc. v. Williams 534 U.S. 184, 198 (2002)).
130. Id. § 2(b)(4).
131. The AAA states that: [M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.... [A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Id.
132. Id.
133. See infra note 162 and accompanying text (epilepsy). Compare Demming v. Hous. & Redev. Auth., 66 F.3d 950, 955 (8th Cir. 1995) (woman with thyroid cancer not disabled under Rehabilitation Act), and Dinsdale v. Wesley, 2000 U.S. Dist. LEXIS 12015, at *13 (N.D. Iowa Apr. 13, 2000) (woman with colon cancer not disabled under ADA after chemotherapy ended), and Farmer v. Nat'l City Corp., 1996 U.S. Dist. LEXIS 20941, at *16-17 (S.D. Ohio Apr. 5, 1996) (man treated for prostate cancer with lingering incontinence and impotence not disabled under ADA), with EEOC v. AIC Sec. Investigations, 823 F. Supp. 571, 572 (N.D. Ill. June 7, 1993), rev'd in part on other grounds, 55 F.3d 1276 (7th Cir. 1995) (man with terminal cancer disabled under ADA).
134. AAA § 4(a).
135. Id. The AAA returns to the broad standard articulated in School Board of Nassau County v. Arline, a case interpreting the Federal Rehabilitation Act of 1973, 29 U.S.C. §§ 705-08 (1998): "those who are regarded as impaired ... are substantially limited in a major life activity." 480 U.S. 273, 284 (1987); see also AAA § 2(b)(3).
136. 42 U.S.C. § 12111(8) (2000) (defining "qualified individual with a disability"); AAA § 5. The perceived impairment must be one that would last at least six months, however, if it actually manifest. Id. § 4(a).
137. AAA § 4(a) ("An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.").
138. Further, it is doubtful courts would construe the AAA to cover these individuals as "substantially limited" in a major life activity. Prior to the AAA, they were not viewed as such. See, e.g., Toyota Motor Mfg. of Ky., Inc. v. Williams, 534 U.S. 184, 201-03 (2002) (individual with carpal tunnel syndrome who is largely functional with regard to manual tasks at home is not disabled); McGuinness v. Univ. N.M. Sch. Med., 170 F.3d 974, 978 (1998) (student whose "anxiety impairs his 'academic functioning,' not his ability to work" fails the disability threshold test). The relevant "physical or mental impairment" continues to be understood as a condition that is manifest or was previously present. See AAA § 4(a). There are two exceptions, however. "Asymptomatic" AIDS was recognized by the Court as a "physical impairment" because of "the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease." Bragdon v. Abbott, 524 U.S. 624, 635-37 (1998). The Court noted, however, that "asymptomatic" in this context is a "misnomer... for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections." Id. at 635. Individuals with predispositions to genetic conditions are now protected under the Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881, 922 (2008).
139. Satz, A Jurisprudence of Dysfunction, supra note 27, at 248-50.
140. AAA § 6(a)(1). Presumably, discriminatory behavior will be halted and the usual damages will apply, however.
141. See, e.g., DΆngelo v. Conagra Foods, Inc., 422 F.3d 1220, 1228-40 (11th Cir. 2005) (holding that an individual with vertigo not limited in the major life activity of working may be entitled to accommodation if "regarded as" disabled); Kelly v. Metallics W., Inc., 410 F.3d 670, 676 (10th Cir. 2005) (holding that an individual who is not disabled but "regarded as" disabled may be entitled to an accommodation of bringing supplemental oxygen to work).
142. quot;Undue hardship" is an affirmative defense under the ADA. 42 U.S.C. § 12112(b)(5)(A) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). The statute defines it as "an action requiring significant difficulty or expense," based on factors including the cost, the overall resources of the employer or those of its facility or facilities making the accommodation, and the impact on that employer or facility or facilities. Id. § 12111(10).
143. I am grateful to Emory Law Professor Charlie Shanor for his insights on this issue.
144. See, for example, 42 U.S.C. § 12101(a)(5)-(6), which states that: Congress finds that... individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities . .. people with disabilities . . . occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally.
145. Id. § 12101(a)(7).
146. See, e.g., id. § 12101(a)(7) ("[I]ndividuals with disabilities are .. . relegated to a position of political powerlessness in our society . . . resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.").
147. SILVERS, WASSERMAN & MAHOWALD, supra note 39, at 74.
148. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(a)(2), 122 Stat. 3553, 3553 (2008).
149. Fineman, The Vulnerable Subject, supra note 44.
150. See infra notes 226-28 and accompanying text.
151. See supra note 20 and accompanying text.
152. 42 U.S.C. §§ 12111-17 (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
153. Id. §§ 12131-34.
154. Id. §§ 12181-89.
155. Id. §§ 12142-44, 12148, 12182(b)(2)(B), 12184.
156. Rehabilitation Act of 1973, 29 U.S.C. §§ 705-08, amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, § 7, 122 Stat. 3553, 3558 (2008).
157. Fair Housing Act of 1988, 42 U.S.C. §§ 3601-07 (2000).
158. Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-82 (2000).
159. See 42 U.S.C. § 414(a) (2000); see also infra note 195.
160. See, e.g., 42 U.S.C. § 12102(2) (discussing the case-by-case inquiry of the ADA); see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999). But see U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 403 (2001) (creating an exception to the case-by-case inquiry when disability accommodation requests interfere with seniority systems created by collective bargaining).
161. Paul Steven Miller refers to the case-by-case inquiry as a "contextual definition of disability," in the sense that there are no per se disabilities under the ADA. Miller, Reclaiming the Vision, supra note 13, at 770 (emphasis added).
162. Compare Landty v. United Scaffolding, Inc., 337 F. Supp. 2d 808, 816 (M.D. La. 2004 (holding that plaintiff with epilepsy who controls his seizures with medication is not disabled), and Roland v. Becon Constr., 2002 U.S. Dist. LEXIS 19702, at *13 (E.D. La. Oct. 16, 2002) (holding that plaintiff with epilepsy who takes medication and experiences seizures only at night is not disabled), with Otting v. J.C. Penney Co., 223 F.3d 704, 710-11 (8th Cir. 2000) (holding that plaintiff who suffers seizures while medicated for epilepsy is disabled), and Rowles v. Automated Prod. Sys., Inc., 92 F. Supp. 2d 424, 429 (M. D. Pa. 2000) (finding a genuine issue of material fact as to whether plaintiff who takes medication for epilepsy and experiences a seizure a year is disabled). There may, of course, be individuals so profoundly impaired that they would be disabled in any circumstance.
163. The AAA accounts for "learned behavioral or adaptive neurological modifications" as forms of mitigation. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555. Fortitude and endurance arguably fall outside this context, however.
164. See supra notes 104-05 and accompanying text.
165. EEOC Regulations state: "A job function may be considered essential for any of several reasons, including but not limited to the following: ... the reason the position exists is to perform that function . . . [there are a] limited number of employees available [who can perform that function] . . . [and] [t]he function [is] highly specialized . . . ." 29 C.F.R. § 1630.2(n)(2) (2008). Essential functions may be determined by a variety of sources including the employer, written job descriptions, collective bargaining agreements, the time an employee spends performing the function, the impact on the workplace of eliminating the function for the relevant employee, and the past and present work experiences of others. Id. § 1630.2(n)(3).
166. 42 U.S.C.§ 12111(8) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008) (defining a "qualified individual with a disability" as one who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires").
167. Transportation to work is generally considered a personal rather than an employment issue. See, e.g., Self v. Bd. of Review, 453 A.2d 170, 171 (N.J. 1982) (employees who voluntary left their employment because they were without transportation to work are not entitled to unemployment compensation).
168. Under the ADA, an employer need not provide an accommodation that benefits the employee both at home and at work. 42 U.S.C. § 12111(9) ("[R]easonable accommodation" means "making existing facilities used by employees readily accessible to and useable... job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.").
169. See infra notes 247-49 and accompanying text.
170. See, e.g., Bagenstos, The Future of Disability Law, supra note 19; Bagenstos, Mend It, Don Ί End It, supra note 42; Diller, supra note 10; Johnson, supra note 38; Mark C. Weber, Disability and the Law of Welfare: A Post-Integrationist Examination, 2000 ILL. L. REV. 889, 940-56 (2000).
171. See, e.g., Bagenstos, The Future of Disability Law, supra note 19; Bagenstos, Mend It, Don't End It, supra note 42; Diller, supra note 10; Johnson, supra note 38; Weber, supra note 170, at 940-56.
172. See, e.g., Stein & Stein, supra note 37, at 1208-12. The ADA adopts a functional definition of disability, in the sense that it looks to impairment of a major life activity or function. Because the definition looks to a "physical or mental impairment" that "substantially limits a major life activity," it is often interpreted to be a mixture of the medical and social models of disability. "Impairment" is determined according to medical criteria, and the limitation of a major life activity considers social or environmental impediments to functioning. The medical model views disability as a biological defect (physical or mental impairment) to be ameliorated. See SILVERS, WASSERMAN & MAHOWALD, supra note 39, at 59-63. The social model views disability as environmentally created and requires social adjustment to facilitate functioning. Id. at 74-76.
173. See, e.g., Stein & Stein, supra note 37, at 1208-12.
174. Prior to the AAA, an individual was not considered disabled when she adapted by using drugs, devices, or other mitigating measures. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 480 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565-66 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 520-21 (1999).
175. 42 U.S.C. § 12102(2)(A) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
176. See 29 C.F.R.§ 1630.2(i) (2008) ("Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."); see also Bragdon v. Abbott, 524 U.S. 624, 639-41 (1998) (recognizing reproduction as a major life activity).
177. Toyota Motor Mfg. of Ky., Inc. v. Williams 534 U.S. 184, 187 (2002).
178. Id. at 200-02.
179. Williams v. Toyota Motor Mfg. of Ky., Inc, 224 F.3d 840, 843 (6th Cir. 2000), rev'd, 534 U.S. 184(2002).
180. It is possible, however, that the plaintiff might be limited in a different major life activity, even within a broad environment for assessment. See ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555 (2008). ("An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.").
181. Id § 3.
182. Toyota, 534 U.S. at 200 (quoting Sutton v. United Airlines, Inc., 527 U.S. 471, 491 (1999)); see also 29 C.F.R. § 1630.2(j)(3) (2001) ("With respect to the major life activity of working[,] [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.").
183. 29 C.F.R. § 1630.2(j)(3)(iί)(A)-(C).
184. This phenomenon is similar to the "time-framing" construct in criminal law described by Mark Kelman where laws implicitly embrace arbitrary time-frames to avoid certain political problems. Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 600-42 (1981).
185. See supra notes 139-42 and accompanying text.
186. AAA§ 2(a)(8).
187. Johnson, supra note 38, at 168-69.
188. Id. Displaced workers who are not disabled receive unemployment and health benefits for a limited period after their termination, the latter at a higher premium then when they were employed. Id.
189. I thank Emory Law Professor Tim Terrell for this point.
190. See generally Margaret R. Somers & Fred Block, From Poverty to Perversity: Ideas, Markets, and Institutions over 200 Years of Welfare Debate, 70 AM. SOC. REV. 260 (2005) (discussing how social welfare regimes fail in light of market-based approaches to wealth distribution due to "the perversity thesis," or the view that social welfare contributes to the plight of the poor).
191. See, e.g., Robert Moffitt, David Ribar & Mark Wilhelm, The Decline of Welfare Benefits in the U.S.: The Role of Wage Inequality, 68 J. PUB. ECON. 421, 423-24 (1998).
192. See, e.g., Rebecca M. Blank, Distinguished Lecture on Economics in Government: Fighting Poverty: Lessons from Recent U.S. History, 14 J. ECON. PERSP., Spring 2000, at 7 (discussing consistently low unemployment rates during economic prosperity in the 1990s); see also U.S. Dep't of Labor, Labor Force Statistics from the Current Population Survey, http://data.bls.gov/ PDQ/servlet/SurveyOutputServlet?data-tool=latest-numbers&series-id=LNS140 00000 (last visited Nov. 18, 2008) (indicating low unemployment rates during times of economic prosperity from 1998-2002 and 2006-2008), permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513nl92.pdf.
193. CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR & JESSICA C. SMITH, U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2007 19 (2008), available at http://www.census.gov/prod/ 2008pubs/p60-235.pdf, permanent copy available at http://www.law. washington.edu/wlr/notes/83washlrev513nl 93.pdf.
194. Cathy Schoen et al., How Many Are Underinsured? Trends Among U.S. Adults, 2003 and 2007, HEALTH AFF., Jun. 10, 2008, at w300, available at http://content.healthaffairs.org/cgi/reprint/ hlthaff.27.4.w298vl?ijkey=rhRn2Tr4HAKZ.&keytype=r ef&siteid=healthaff, permanent copy available at http://www.law.washington.edu/wlr/notes/ 83washlrev513nl94.pdf.
195. Government programs include Medicare, Medicaid, the State Children's Health Insurance Program (SCHIP), the military entitlement programs (TRICARE and the Civilian Health and Medical Program of the Department of Veteran Affairs (CHAMPVA)), and the Federal Employees Health Benefits Program. Medicaid and SCHIP operate at the state level with federal oversight, and the other programs are federal. Medicare provides "basic protection against the costs of hospital, related post-hospital, home health services, and hospice care" for all individuals age 65 or over, certain disabled individuals who are government or railroad employees, and individuals suffering from end-stage renal disease. 42 U.S.C. § 1395c (2000). Medicaid provides "medical assistance on behalf of families with dependent children and of the aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services." Id. § 1396. Medicaid is typically provided to individuals at or below 150 percent of the federal poverty line, which is currently $20,650 for a family of four. See, e.g., Kaiser Family Found., Income Eligibility for Parents Applying for Medicaid by Annual Income as a Percent of Federal Poverty Level (FPL), 2008, httρ://www.statehealthfacts.org/comρaretable.jsp?ind=205&cat=4 (last visited Dec. 22, 2008), permanent copy available at http://www.law. washington.edu/wlr/notes/83washlrev 513nl95.pdf; see also Annual Update of the HHS Poverty Guidelines, 72 Fed. Reg. 3147 (Jan. 24, 2007). SCHIP provides basic medical coverage to children ineligible for Medicaid; its target population is children in families at or below 200 percent of the federal poverty line. State Children's Health Insurance Program, 42 U.S.C. §§ 1397aa-jj (2000); 42 C.F.R. 457.310(b)(l)(i) (2007) (describing "targe[t] low-income child").
196. Steffie Woolhandler & David U. Himmelstein, Paying for National Health Insurance-And Not Getting It, 21 HEALTH AFF. 88, 91, 94 (2002) ("Public funding" includes all tax-financed health care, such as health care and research programs, hospital subsidies, individual and employer tax subsidies, and government employee health care plans.).
197. See, e.g., Robin Toner, 2008 Candidates Vow to Overhaul U.S. Health Care, N.Y. TIMES, July 6, 2007, at Al, available at http://www.nytimes.com/2007/07/06/us/politics/06health.html, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513nl97a.pdf; Robin Toner, The 2004 Campaign: The Issue: Democrats See a New Urgency in Health Care, N.Y. TIMES, Jan. 14, 2004, at Al, available at http://www.nytimes.com/2004/01/14/politics/campaigns/14HEAL.html, permanent copy available at http://www.law.washington.edu/wlr/notes/ 83washlrev513nl97b.pdf; James Dao, The 2000 Campaign: The Challenger; Bradley Nod to Clinton on Universal Health Care, N.Y. TIMES, Feb. 23, 2000, at A18, available at http://query.nytimes.com/gst/fullpage.html?res=9404EEDB 1330F930A15751C0A9669C8B63, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513nl97c.pdf.
198. These workers are not "qualified individuals with a disability" for purposes of the ADA if they are unable to fulfill the essential functions of their job. 42 U.S.C. § 12111(8) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
199. See, e.g., Stein, Same Struggle, Different Difference, supra note 9, at 637-40.
200. 42 U.S.C. §§ 12101(a)(3), (5), (9), (b).
201. H.R. REP. NO. 101-485, pt. 2, at 32 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 314 (citing STEWART LEICHENKO, ICD SURVEY OF DISABLED AMERICANS: BRINGING DISABLED AMERICANS INTO THE MAINSTREAM 47-50 (1986)).
202. See supra notes 15-16 and accompanying text.
203. Johnson, supra note 38, at 168-69.
204. See supra notes 17-18 and accompanying text discussing accommodation; see also Bagenstos, supra note 19, at 26 (discussing lack of material supports); Johnson, supra note 38, at 164 (discussing how the ADA does not adequately address workers with limited productivity).
205. See supra note 166 and accompanying text discussing a "qualified individual with a disability."
206. Johnson, supra note 38, at 168.
207. 42 U.S.C. § 12111(9) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
208. See supra note 142 and accompanying text.
209. 42 U.S.C. § 12113(b); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (holding that a direct threat is one that poses a "significant risk" to others, as indicated by "medical or other objective evidence").
210. 42 U.S.C. § 12182(b)(2)(A)(iv). The statute defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense .... [F]actors to be considered include-the nature and cost of the action... the overall financial resource of the facility... the overall financial resources of the covered entity. . . and the [nature] of the operation...." Id. § 12181(9). New construction must comply with the ADA. Id. §§ 12146, 12183(a).
211. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3) (2008).
212. See Stein, Same Struggle, Different Difference, supra note 9, at 637-40.
213. Id. at 636-70; see also Elizabeth A. Pendo, Disability, Doctors and Dollars: Distinguishing the Three Faces of Reasonable Accommodation, 35 U.C. DAVIS L. REV. 1175,1180-86 (2002).
214. I want to emphasize that I am making a normative argument for the expansion of the reasonable accommodation mandate. I am not making a cost-benefit argument or considering the constraints of current budgets.
215. 42 U.S.C. § 12111(5)(A) ("The term 'employer' means a person engaged in industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks...."). The definition of "employer" does not include the United States, Indian tribes, or private firms exempt from taxation under 26 U.S.C. § 501 (c). Id. § 12111 (5)(B).
216. Current subsidies are limited. The Work Opportunity Credit provides a tax credit of up to forty percent of the first $6000 ($2400) of an employee's qualified first-year wages. I.R.C. § 51(a) (2008); see also IRS Form 5884, Work Opportunity Credit (OMB No. 1545-0219) (2007), available at http://www.irs.gov/pub/irs-pdf/f5884.pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n216a.pdf. Employers of veterans with a service-related disability are eligible for up to twice that amount. I.R.C. § 51(d)(1)(b), 51(d)(3). The Disabled Access Credit provides a credit for up to $10,000 per year for disability accommodations made by businesses earning $1 million or less or with fewer than 31 full-time employees. Id. § 44; see also IRS Form 8826, Disabled Access Credit (OMB No. 1545-1205) (2006), available at http://www.irs.gov/pub/irs-pdf/f8826.pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n216b.pdf. The Architectural Barrier Removal Tax Deduction provides a deduction of up to $15,000 per year for expenses that remove architectural or transportation barriers for disabled or elderly individuals. I.R.C. § 190 (2008). The Disability Access Credit and the Barrier Removal Tax Deduction may be obtained in the same year.
217. Bagenstos discusses a "structural" approach to antidiscrimination law, which would rely on the law to identify norms that reduce workplace bias (including unconscious bias) and empower employees, but does not believe it will be successful due to difficulties with implementation. Bagenstos, The Structural Turn, supra note 81, at 4.
218. See supra note 86 and accompanying text.
219. See supra notes 165-66 and accompanying text.
220. See Satz, A Jurisprudence of Dysfunction, supra note 27, at 243-48.
221. Id. at 245-46.
222. Id. The AAA lessens the impact of this to some extent by assessing an individual for disability in a pre-mitigated state. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4, 122 Stat. 3553, 3555 (2008).
223. See Satz, A Jurisprudence of Dysfunction, supra note 27, at 246-48.
224. Id. at 248-65.
225. See supra note 163 and accompanying text discussing willpower and fortitude as a mitigating measure.
226. The Ctr. for Universal Design, N.C. State Univ., About UD, http://www.design.ncsu.edu/cud/about-ud/about-ud.htm (last visited Nov. 22, 2008), permanent copy available at http://www.law.washington.edu/wlr/ notes/83washlrev513n226.pdf; see also ROBERT F. ERLANDSON, UNIVERSAL AND ACCESSIBLE DESIGN FOR PRODUCTS, SERVICES, AND PROCESSES 17(2008).
227. The Ctr. for Universal Design, N.C. State Univ., UD Principles, http://www.design.ncsu.edU/cud/about-ud/udprincipleshtmlformat.html#top (last visited Dec. 24, 2008), permanent copy available at http://www.law. washington.edu/wlr/notes/83washlrev513n227.pdf; see also ERLANDSON, supra note 226, at 67 ("ergonomically sound, perceptible, cognitively sound, flexible, error-managed (proofed), efficient, stable and predictable, equitable").
228. See ERLANDSON, supra note 226, at 6.
229. See Ani B. Satz, Toward Solving the Health Care Crisis: The Paradoxical Case for Universal Access to High Technology, 8 YALE J. HEALTH POL'Y L. & ETHICS 93 (2008); Ani B. Satz, The Limits of Health Care Reform, 59 ALA. L. REV. 1451 (2008).
230. See, e.g., WENDELL, supra note 90, at 20 (arguing that chronic illness may be disabling); SILVERS, WASSERMAN & MAHWALD, supra note 39, at 79 (arguing that illness normally does not constitute a disability though "disability often is a sequela of illness and . . . illness, especially chronic illness, can itself be disabling.").
231. See, e.g., NORMAN DANIELS, JUST HEALTH CARE (1985); THOMAS W. POGGE, REALIZING RAWLS 181-96 (1989); JOHN RAWLS, THE LAW OF PEOPLES 50 (1999).
232. See supra note 195 and accompanying text. Private payors include indemnity insurers, employers (self-insured or insured through private companies), and a variety of managed care arrangements.
233. See, e.g., KAISER FAMILY FOUND., EMPLOYER HEALTH BENEFITS; 2007 SUMMARY OF FINDINGS 1, available at http://www.kff.org/insurance/7672/ upload/Summary-of-Findings-EHBS-2007.pdf (158 million Americans receive health insurance through their employer), permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n233a.pdf. Employers pay 74.4 percent of health care expenses for their employees. CTRS. FOR MEDICARE & MEDICAID SERVS., U.S. DEP'T OF HEALTH AND HUMAN SERVS., SPONSORS OF HEALTH CARE COSTS, BUSINESSES, HOUSEHOLDS, AND GOVERNMENTS, 1987-2006 Table 4, available at http://www.cms.hhs.gov/ NationalHealthExpendData/downloads/bhg08.pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n233b.pdf.
234. See supra note 20 and accompanying text.
235. As one commentator notes: Under civil rights principles it is sufficient that people with disabilities have equal access to insurance offices and, once inside those offices, have equal right to purchase insurance policies having the same contents as policies purchased by nondίsabled persons. Changing the terms or contents of the insurance policies so that people with disabilities receive coverage equal to that provided to nondisabled people, however, requires affirmative action that goes beyond basic civil rights premises. Bonnie Poitras Tucker, The ADA's Revolving Door: Inherent Flaws in the Civil Rights Paradigm, 62 OHIO ST. L.J. 335,382 (2001).
236. See Pegram v. Herdrich, 530 U.S. 211, 220-22 (2000).
237. 42 U.S.C.§ 12201(c) (2000), amended by ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553(2008).
238. U.S. Equal Employment Opportunity Comm'n, Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer Provided Health Insurance, EEOC Notice No. 915.002 (June 8, 1993), available at http://www.eeoc.gov/policy/ docs/health.html {hereinafter EEOC Interim Enforcement Guidance], permanent copy available at http://www.law.washington.edu/wlr/notes/ 83washlrev513n238.pdf. The EEOC regulations do not define "bona fide" plan for purposes of the ADA, though it is defined in the regulations implementing the Age Discrimination in Employment Act, 29 C.F.R. § 1625.10(a)(2)(b) (2008) ("A plan is considered 'bona fide' if its terms (including cessation of contributions or accruals in the case of retirement income plans) have been accurately described in writing to all employees and if it actually provides the benefits in accordance with the terms of the plan.").
239. 42 U.S.C. § 12181(7)(F).
240. See, e.g., Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559-60 (7th Cir. 1999); Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 (2d Cir. 1999); Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, 37 F.3d 12, 19-20 (1st Cir. 1994); Baker v. Hartford Life Ins. Co., No. 94 C 4416, 1995 U.S. Dist. LEXIS 14103, at *8-9 (N.D. Ill. Sept. 27, 1995).
241. See supra note 238 and accompanying text.
242. EEOC Interim Enforcement Guidance, supra note 238, § (7)(III)(B).
243. Id.
244. Id.
245. Id.
246. Id. § 7(III)(C)(2).
247. The EEOC argues that long-term disability plans that distinguish between mental and physical conditions are disability-based, and courts are split on the issue. Compare Fletcher v. Tufts Univ., 367 F. Supp. 2d 99, 111, 114 (D. Mass. Apr. 15, 2005) (finding that termination of disability payments based on mental disability but not physical disability violates Title I), with EEOC v. Bath Iron Works Corp., No. 97-355-P-H, 1999 U.S. Dist. LEXIS 10600, at *17-22 (D. Me. Feb. 8, 1999) (finding that defendant company's two-year limit on benefits for mental or nervous disorders but not physical ones does not violate Title I).
248. Mental Health Parity and Addiction Equity Act of 2008, H.R. 1424, 110th Cong. § 511 (2008), Previously, complete parity was not required. See, e.g., Mental Health Parity Act of 1996, 42 U.S.C. § 300gg-5(a)(1)-(2) (2000); EEOC Interim Enforcement Guidance, supra note 238 ("Typically, a lower level of benefits is provided for the treatment of mental/nervous conditions than is provided for the treatment of physical conditions.... Such broad distinctions, which apply to the treatment of a multitude of dissimilar conditions and which constrain individuals both with and without disabilities, are not distinctions based on disability.... and do not violate the ADA."); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1113-18 (9th Cir. 2000) (finding no violation of Titles I and III for disparity between mental and physical disability benefits under employee disability insurance policy); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-14 (3d Cir. 1998) (same).
249. H.R. 1424, 110th Cong. § 512.
250. In 2004, health care expenditures for people 65 years and older were $531.46 billion, which is 5.6 times the amount spent on children and 3.3 times the cost of care for adults. CTRS. FOR MEDICARE & MEDICAID SERVS., U.S. DEP'T OF HEALTH AND HUMAN SERVS., HEALTH CARE EXPENDITURES BY AGE, available at http://www.cms.hhs. gov/NationalHealthExpendData/ downloads/2004-age-tables.pdf, permanent copy available at http://www.law.washington.edu/ wlr/notes/83washlrev513n250a. pdf. Of course, some of these individuals may be disabled. In 2005, the estimated "social cost" ("medical, education, and lost productivity") of preterm births was S26.2 billion. Ctrs. for Disease Control & Prevention, CDC Features-Premature Births, http://www.cdc.gov/ Features/PrematureBirth/ (last visited Nov. 22, 2008), permanent copy available at http://www.law.washington.edu/ wlr/notes/83washlrev513n250b. pdf.
251. Health care services are scaled in order of priority. Jonathan Oberlander, Health Reform Interrupted: The Unraveling of the Oregon Health Plan, HEALTH AFF., Dec. 19, 2006, at w96, available at http://content.healthaffairs.Org/cgi/reprint/26/l/w96, permanent copy available at http://www.law.washington.edu/wlr/notes/83washlrev513n251a.pdf. During 2008-2009, the Oregon Medicaid plan will provide 503 of the 680 basic health services the state aspires to cover. Or. Health Servs. Comm'n, Current Prioritized List, available at http://www.oregon.gov/OHPPR /HSC/current-prior.html, permanent copy available at http://www.law. washington.edu/wlr/notes/ 83washlrev513n25lb.pdf.
252. Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 29 and 42 U.S.C.).
253. See, e.g., U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-99-100, PRIVATE HEALTH INSURANCE: PROGRESS AND CHALLENGES IN IMPLEMENTING 1996 FEDERAL STANDARDS 12-14 (1999) (premiums for individual plans for nonsmoker with juvenile-onset diabetes range from 100-464 percent of the standard premium), available at http://www.gao.gov/archive/1999/he99100.pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/ 83washlrev513n253.pdf.
254. See Johnson, supra note 38, at 171.
255. See id.; see also supra note 194 and accompanying text discussing underinsurance.
256. The Act extends Medicare Part A (hospital) premium-free coverage for disability beneficiaries who return to work. Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, § 202, 113 Stat. 1860, 1894 (1999). In addition, the Act allows states to extend Medicaid payments, possibly for cash payments, including providing Medicaid to workers who are not actually disabled but who have physical or mental impairments that are "reasonably expected" to become severe disabilities in the absence of health care. Id. §§ 201, 204.
257. John A. Poisal et al., Health Spending Projections Through 2016: Modest Changes Obscure Part D's Impact, HEALTH AFF., Feb. 21, 2007, at W242-43, available at http://content.healthaffairs.Org/cgi/ reprint/262/2/w242.pdf, permanent copy available at http://www.law. washington.edu/wlr/notes/83washlrev513n257.pdf.
258. See, e.g., CHRIS L. PETERSON & RACHEL BURTON, CONG. RESEARCH SERV., U.S. HEALTH CARE SPENDING: COMPARISON WITH OTHER OECD COUNTRIES 58 (2007), available at http://assets.opencrs.com/rpts/RL34175-20070917.pdf ("In 2004, the United States spent more than twice as much on health care as the average OECD [Organization for Economic Cooperation and Development] country, at $6,102 per person (compared with the OECD average of $2,560). Health care spending comprised 15.3% of the U.S. GDP in 2004, compared with an average of 8.9% for the average OECD country."), permanent copy available at http://www.law.washington.edu/wlr/notes/ 83washlrev513n258.pdf.