Accommodating every body

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group-identity status. It proposes that, in principle, "accommodating every body" be achieved by extending Americans with Disabilities Act-type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to give them meaningful access. Doing so shifts the focus of accommodation disputes from the contentious identity based contours of "disabled" plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding "unworthy" individuals from employment opportunity-people whose functional capacity does not comply with prevailing workforce design and organizational presumptions- and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because it is in everyone's interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a "disability" under the ADA.

05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 689 Accommodating Every Body Michael Ashley Stein,† Anita Silvers,†† Bradley A. Areheart‡ & Leslie Pickering Francis‡‡ This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group-identity status. It proposes that, in principle, "accommodating every body" be achieved by extending Americans with Disabilities Act-type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to give them meaningful access. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of "disabled" plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding "unwor-thy" individuals from employment opportunity-people whose functional capacity does not comply with prevailing workforce design and organizational presump-tions- and who therefore require accommodation. Adopting this proposal also re-sponds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contrib-uting on the job. Provision of accommodations for age-related alteration of function-ality, when the accommodations are effective, is reasonably prescribed because it is in everyone's interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a "disabil-ity" under the ADA. INTRODUCTION .................................................................................................... 690 I. ACCOMMODATIONS AS EQUALITY .................................................................. 695 A. The Reasonable-Accommodation Mandate ........................................ 695 B. Accommodations as Civil Rights ........................................................ 701 II. DISABLING THE WORKFORCE ........................................................................ 703 A. The Changing Workforce .................................................................... 704 B. The Current Gap between Work Capability and Accommodation.... 710 III. THE ADAAA ................................................................................................ 719 † Executive Director, Harvard Law School Project on Disability; Visiting Professor, Harvard Law School; Professor, William & Mary Law School. †† Professor of Philosophy, San Francisco State University. ‡ Associate Professor, University of Tennessee College of Law. ‡‡ Alfred C. Emery Distinguished Professor of Law and Distinguished Professor of Philosophy, University of Utah. We thank Samuel Bagenstos, Peter Blanck, Elizabeth Emens, Adam Samaha, and Mi-chael Selmi for their comments, and Caleb Barron, Ryan Mirian, Alexa Roggenkamp, and Sarah Jane Braasch for research assistance. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 690 The University of Chicago Law Review [81:689 A. Construing Disability Expansively .................................................... 719 B. Other Elements of the Plaintiff's Prima Facie Case ......................... 721 1. Qualifications. .............................................................................. 722 2. Causation. .................................................................................... 723 C. "Regarded As" Plaintiffs ..................................................................... 726 IV. COMPLEXITIES OF DISABILITY IDENTITY ....................................................... 728 A. The Health-Services Model of Accommodation ................................. 728 B. The Compensatory-Benefit Model of Accommodation ....................... 735 V. ACCOMMODATING EVERY BODY .................................................................... 737 VI. THE VALUE OF ACCOMMODATING EVERY BODY ............................................ 744 A. Integrating the Work Capable ............................................................ 744 B. Benefits of Accommodating Every Body ............................................ 749 1. Structural benefits. ...................................................................... 750 2. Expressive benefits. ..................................................................... 752 3. Economic benefits. ....................................................................... 753 4. Hedonic benefits. .......................................................................... 754 CONCLUSION ....................................................................................................... 755 INTRODUCTION Courts have struggled for more than two decades with the question of who is entitled to a reasonable accommodation under the employment provisions of the Americans with Disabilities Act of 19901 (ADA). Judges have found it difficult to reconcile the fine balance required by the statute that workers be sufficiently im-paired to fall within the disability classification, yet remain capa-ble of performing essential job functions with or without accom-modations. 2 The Supreme Court eschewed explicating these standards by imposing stringent requirements for being "an indi-vidual with a disability" under the ADA, with the result that no 1 Pub L No 101-336, 104 Stat 327, codified as amended at 42 USC § 12101 et seq. This remains true despite clarifications contained in the consolidating Americans with Disa-bilities Act Amendments Act of 2008 (ADAAA), Pub L No 110-325, 122 Stat 3553, codified in various sections of Titles 29 and 42. 2 See, for example, Toyota Motor Manufacturing, Kentucky, Inc v Williams, 534 US 184, 199-203 (2002). See also 42 USC § 12111(8) (defining "qualified individual"); 42 USC § 12102(2) (defining "disability"). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 691 employment-capable plaintiff claiming disability-based discrimi-nation achieved victory at the Court.3 Following the Court's ap-proach, over 97 percent of ADA claimants in federal trial courts before 2010 also lost.4 Ironically, it is precisely those potential employees with dis-abilities- work-capable individuals denied access to the work-place- that Congress intended to empower through the ADA.5 Consequently, Congress responded to the Court's restrictive ap-proach with the Americans with Disabilities Act Amendments Act of 20086 (ADAAA), rejecting the "demanding standard[s]" that courts imposed for a determination of disability.7 The ADAAA's stipulation that disability is to "be construed in favor of broad cov-erage of individuals"8 means that judges should now be reluctant to dismiss cases at summary judgment on the ground that plain-tiffs' impairments do not meet the statutory definition of disabil-ity. Similarly, the ADAAA has the potential to shift attention from whether a person meets a threshold standard for disability to whether a person is capable of performing essential functions for a given position with or without an accommodation. Even with the ADAAA, however, courts may continue to struggle with bal-ancing determinations of disability against determinations of ability to perform essential job functions with or without accom-modations. Thus, the challenge of integrating disability status with work-capable status remains. The definition of disability in the ADA, and even more so in the ADAAA, is in tension with the Social Security Administra-tion's competing definition of disability as a complete inability to work,9 a binary view of disability and employability that reaches 3 Nathan Catchpole and Aaron Miller, Comment, The Disabled ADA: How a Nar-rowing ADA Threatens to Exclude the Cognitively Disabled, 2006 BYU L Rev 1333, 1364. "The Court has invented a bizarre and deeply paradoxical requirement that a disabled individual must offer specific proof of her own negative ability." Aviam Soifer, The Disa-bility Term: Dignity, Default, and Negative Capability, 47 UCLA L Rev 1279, 1289 (2000). 4 See, for example, Amy L. Allbright, 2010 Employment Decisions under the ADA Titles I and V-Survey Update, 35 Mental & Physical Disability L Rptr 394, 395 (2011) (reporting a 98.2 percent win rate for employers for cases that were resolved at the time of the survey); Amy L. Allbright, 2009 Employment Decisions under the ADA Title I-Sur-vey Update, 34 Mental & Physical Disability L Rptr 339, 340 (2010) (reporting a 97.4 per-cent win rate for employers for cases that were resolved at the time of the survey). 5 See Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 Wm & Mary L Rev 921, 926-27 (2003). 6 Pub L No 110-325, 122 Stat 3553, codified in various sections of Title 42. 7 See ADAAA § 2(b)(4), 122 Stat at 3554. 8 ADAAA § 4(a), 122 Stat at 3555, codified at 42 USC § 12102(4)(A). 9 42 USC § 423(d)(1)(A). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 692 The University of Chicago Law Review [81:689 back to the Elizabethan Poor Laws.10 Granted, Social Security Disability Insurance (SSDI)11 and the ADA have different goals. SSDI is designed to transition individuals no longer work capable due to disability out of the workforce,12 while the ADA is meant to retain work-capable disabled individuals in the workforce. Since the passage of the ADA, however, there has been conflict over which policy's conception of disability, and which of these incom-patible goals, should have primacy over individuals who can re-main working as long as they are accommodated. In an early ADA case, the Supreme Court held that SSDI and ADA claims do not necessarily contradict each other; plaintiffs who file for SSDI prior to filing an ADA complaint must explain how the claim of being too disabled to work is consistent with the ADA claim of being able to perform essential job functions if pro-vided reasonable accommodation.13 In so ruling, the Court side-stepped the issue of which conception should prevail,14 portraying the SSDI and ADA processes as moving along nonintersecting tracks while inviting the introduction of an SSDI-like high threshold for protection under the ADA.15 As a result, it is more arduous for work-capable employees with disabilities to achieve accommodations needed to remain in the workplace than to ob-tain disability benefits tied to ceasing to work. Although the ADAAA ought to reduce this bias that tilts employees toward stepping out of work, unless courts shift the focus of accommoda-tion claims from demonstrating deep dysfunction to facilitating capability, the incentive to pursue SSDI benefits will persist. It remains to be seen whether courts can successfully integrate de-terminations of disability with determinations that individuals are capable of performing essential job functions with or without accommodations. Aging demographics further complicate the disjuncture be-tween these competing statutory and administrative regimes. Simply put, people are living longer and are expected or required 10 See Jacobus tenBroek and Floyd W. Matson, The Disabled and the Law of Welfare, 54 Cal L Rev 809, 821-23 (1966). 11 42 USC § 423. 12 See Bagenstos, 44 Wm & Mary L Rev at 936 (cited in note 5) (stating that SSDI "seeks to provide a safety net"). 13 See Cleveland v Policy Management Systems Corp, 526 US 795, 797-98 (1999). 14 See id at 801 (stating that both the Social Security Act and the ADA help the dis-abled, "but in different ways"). 15 See id at 806 (holding that the plaintiff "cannot [ ] ignore the apparent contradic-tion" in applying for both benefits, but must proffer a sufficient explanation). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 693 to remain at their jobs until a greater age because of economic factors like depleted pension systems.16 A fortunate minority of aging workers will receive accommodations and remain occupa-tionally active. However, the majority likely will experience alter-ations in functioning that are common to the aging process and may affect perceptions of job capability with or without accommo-dations. Such aging individuals are especially vulnerable to being forced out of jobs and onto Social Security disability benefits be-fore they reach retirement age, or into earlier retirement than they desire, despite still being work capable if they lack access to accommodations for natural aging. Although aging is a normal process, it systematically distances people from the idealized bod-ies and minds of paradigm workers for whom workplaces are de-signed. 17 The tendency to force older workers out of jobs is driven by the same mistaken view that often keeps people with disabili-ties out of the labor market: the myth that efficiency and profit demand one-size-fits-all workplaces and workers. This Article contends that the focus of American disability law and policy should not be the eligibility of individuals for ac-commodations because they happen to have a legally sufficient impairment, but the effectiveness of potential accommodations. It therefore proposes "accommodating every body"18 in principle by extending an ADA-like reasonable-accommodation mandate to all work-capable members of the general population for whom the provision of reasonable accommodation is necessary to give mean-ingful access to enable their ability to work.19 Not every desire for accommodation-even when the accommodation would, in some way, be effective-would result in entitlement. To achieve that legal right, the proposed accommodation would have to be neces-sary for an individual to fulfill essential job functions and not be unduly burdensome for the employer. All bodies would thus, in principle, be eligible for accommodation. The focus under our pro-posal is on the accommodation itself: how effectively the accom-modation enables functionality that otherwise would be lost due to intolerant or exclusionary workplace practices. 16 See Part II.A. 17 Ruth Colker, When Is Separate Unequal? A Disability Perspective 142 (Cambridge 2009). 18 This Article construes "body" broadly to include psychological as well as physical characteristics. 19 See Part V. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 694 The University of Chicago Law Review [81:689 Our proposal thus shifts the locus of accommodation disputes from the contentious identity-based contours of the "disabled" plaintiff to the underlying issue of alleged discrimination. It rem-edies problems arising from excluding "unworthy" individuals from employment opportunity-people whose functional modes do not comply with prevailing workforce design and organiza-tional presumptions and who therefore require accommodation. Unless such a proposal is adopted, growing demands to extend the length of time people remain at work will be compromised by severely diminished employment opportunities for aging individ-uals still capable of contributing on the job. Provision of accom-modations for age-related alteration of functionality, when the ac-commodations are effective, is reasonably prescribed because maximum retention of capabilities as individuals grow older is in everyone's interest, whether or not they also possess identity-based characteristics sufficient to constitute a "disability" under the ADA. Part I briefly addresses the history, scope, and purpose of rea-sonable accommodations within and beyond American disability law. Part I also observes that while courts have taken an increas-ingly sophisticated approach to redressing discrimination based on sex and gender, this has not translated into a sufficiently com-prehensive view of the complexities of disability. Next, Part II ar-gues that due to people living longer and dwindling pensions, ex-cluding work-capable individuals experiencing natural limitations of aging from the economic and social benefits of em-ployment invokes immense and unjustifiable social costs. Part II also reviews the political and judicial history that has placed the ADA's promise of accommodation as a remedy for disability dis-crimination beyond so many plaintiffs' reach. Part III considers post-ADAAA case law and finds early indications that the amend-ments are still deficient for disabled plaintiffs seeking accommo-dations; equality of opportunity demands a more progressive vi-sion of workplace accommodations than the ADAAA provides. Part IV explores complexities arising from the multiple, shifting conceptualizations of disability identity and presents the prob-lems inherent in expecting that various familiar approaches to defining disability can produce a proxy for being deserving of ac-commodation. Part V argues in favor of "accommodating every body" in prin-ciple by extending the ADA's reasonable-accommodation require-ment to all work-capable members of the general population for 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 695 whom reasonable workplace accommodation is necessary for, and effective in, providing meaningful access and thereby enabling the ability to work. The proposal shifts the focus of accommoda-tion disputes away from the highly polarized identity-based con-tours of whether a claimant is "disabled" toward establishing al-legations of discrimination. Part VI underscores the justifications for this proposal and elucidates its benefits. It distinguishes ac-commodations from benefits or privileges and demonstrates that accommodations are justified by the democratic values of integra-tion, equal opportunity, and tolerance. The Article concludes by exploring the structural, expressive, economic, and hedonic bene-fits that arise from applying the principle of accommodating every body. I. ACCOMMODATIONS AS EQUALITY Reasonable workplace accommodations for disabled persons originated with the Rehabilitation Act of 1973,20 but came to prominence with Title I of the ADA.21 This mandate requires em-ployers to provide a proportionately affordable alteration to a spe-cific job, and has been adopted internationally as part of disabil-ity- based legal protections. It departs in both theory and practice from the concepts of benefits or privileges in that reasonable ac-commodations are part of the antidiscrimination canon.22 Fur-ther, their provision is necessary for attaining the democratic val-ues of equal opportunity, tolerance, and inclusive participation. A. The Reasonable-Accommodation Mandate The Rehabilitation Act was the first statutory mandate of reasonable accommodations for current or potential employees with disabilities,23 but the mandate gained prominence with the ADA. The nearly two-decade interval between those statutes wit-nessed federal commissions advocating for expansion of disabil-ity- based discrimination laws, at least in part due to the analogue 20 Pub L No 93-112, 87 Stat 355, codified as amended at 29 USC § 701 et seq. 21 ADA Title I, 104 Stat at 330-37. 22 See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommoda-tions as Antidiscrimination, 153 U Pa L Rev 579, 583 (2004) (arguing that accommodations are antidiscrimination remedies); Christine Jolls, Antidiscrimination and Accommoda-tion, 115 Harv L Rev 643, 645 (2001) (asserting that accommodations resemble and some-times overlap with antidiscrimination measures). 23 29 USC § 701(a). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 696 The University of Chicago Law Review [81:689 between race and sex discrimination and attitudes that excluded disabled persons from social participation.24 The initial provision of reasonable accommodation in employ-ment was unrelated to disability and addressed religious accom-modation under the Equal Employment Opportunity Act of 1972.25 This origin is notable because every statutory iteration of the reasonable-accommodation mandate has been manifested as part of the American civil rights canon and grounded in notions of what equality requires under circumstances in which differ-ences are salient.26 The normative theory underlying the provi-sion of reasonable-accommodations challenges the assumption that labor markets begin from neutral and fair baselines.27 In-stead, civil rights laws challenge the ideas and values that lead to workplaces being physically and administratively designed for the paradigmatic and idealized worker-specifically, the able-bodied, heterosexual, Protestant white male.28 These presumed neutral baselines have in turn constructed occupational hierar-chies across hiring, promotion, and retention practices and have resulted in historic inequities between an empowered main-stream group and those with marginalized-identity characteris-tics in regard to race, sex, and functional ability.29 Civil rights statutes respond to the impact of such inequities by prohibiting future discrimination against nonmainstream groups while also mandating adjustments to the workplace that enable categories 24 See National Council on the Handicapped, Report to the President and the Con-gress of the United States, Appendix to Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities-with Legislative Recommenda-tions A-1 (1986); United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities 141 (1983). 25 Pub L No 92-261, 86 Stat 103, codified in various sections of Titles 5 and 42. See also 42 USC § 2000e-2(j); Trans World Airlines, Inc v Hardison, 432 US 63, 74-75 & n 9 (1977). 26 See Anita Silvers, Formal Justice, in Anita Silvers, David Wasserman, and Mary B. Mahowald, eds, Disability, Difference, Discrimination: Perspectives on Justice in Bio-ethics and Public Policy 13, 74-75 (Rowman & Littlefield 1998). See also generally Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell 1990). 27 See Stein, 153 U Pa L Rev at 597 (cited in note 22) ("A central flaw . . . is the baseline assumption that accommodation costs are internally engendered by the disabled person's inherent lower capability, rather than externally caused by social conditions."). 28 See Ruth O'Brien, Crippled Justice: The History of Modern Disability Policy in the Workplace 166-67 (Chicago 2001). 29 See Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Dis-ability 39 (Routledge 1996) ("Societies [ ] are physically constructed and socially organized with the unacknowledged assumption that everyone is healthy, non-disabled, young but adult . . . and, often, male."). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 697 of individuals with biological differences to perform essential job functions. In the realms of race and sex, required emendations affect the manner in which jobs are structured and performed by revising respective underlying bona fide qualifications that previously ex-cluded those individuals.30 In the context of sex, for example, many workplace-related standards have envisioned one particu-lar way of accomplishing a required function, but it is often possi-ble for women to execute the same function in an alternative man-ner. 31 Similarly, many employers have presupposed that a certain level of height, weight, strength, or physical capacity is necessary to perform a job, only to have such requirements invalidated by courts because a different level would still enable one to ably per-form the job.32 Moreover, many workplace environments and pieces of equipment have been built or structured with the aver-age man in mind, thereby excluding many women.33 Remedying 30 See, for example, Griggs v Duke Power Co, 401 US 424, 436 (1971) (invalidating aptitude tests used in hiring for their disparate impact on African American workers be-cause the tests were not "demonstrably a reasonable measure of job performance"); Albe-marle Paper Co v Moody, 422 US 405, 434-36 (1975) (striking down an employer's intelli-gence test as discriminatory to African Americans when the test may be relevant to future job progression); Connecticut v Teal, 457 US 440, 448-49 (1982) (invalidating a written examination required for promotions due to its disparate impact on African American em-ployees); International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v Johnson Controls, Inc, 499 US 187, 200 (1991) (invalidating an employer's sex-based fetal-protection policy as disparately impacting female employ-ees). 31 "For example, women generally cannot perform the fireman's lift to rescue people from a burning building." But there are other modes of rescue with equivalent outcomes that allow women to execute the same function in an alternative manner-"such as drag-ging victims out of the building rather than carrying them." Anita Silvers, Protection or Privilege? Reasonable Accommodation, Reverse Discrimination, and the Fair Costs of Re-pairing Recognition for Disabled People in the Workforce, 8 J Gender Race & Just 561, 576-77 (2005). 32 See, for example, Lanning v Southeastern Pennsylvania Transportation Authority, 181 F3d 478, 485, 491-94 (3d Cir 1999) (holding that an employment screen that required transit police officers to run 1.5 miles in twelve minutes might not be justified by business necessity); Davis v County of Los Angeles, 566 F2d 1334, 1341-42 (9th Cir 1977) (invali-dating a policy for firefighters that required a minimum height of five feet seven inches), vacd as moot, 440 US 625 (1979); United States v City of Chicago, 411 F Supp 218, 230- 31 (ND Ill 1976), affd in part, revd in part on other grounds 549 F2d 415 (7th Cir 1977) (holding that a police department's five-feet-four-inches height requirement would be in-valid, absent a strong showing of job relatedness); Meadows v Ford Motor Co, 62 FRD 98, 99-100 (WD Ky 1973) (striking down a policy for production line employees that required a minimum weight of 150 pounds). 33 See Jessica L. Roberts, Accommodating the Female Body: A Disability Paradigm of Sex Discrimination, 79 U Colo L Rev 1297, 1303-05 (2008) (examining cockpits, work tables, machinery, and the industrial workplace generally to explore "built environment" exclusion). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 698 The University of Chicago Law Review [81:689 all such practices or structures that result in a disparate impact on women involves accommodations of a sort to provide women with equality of opportunity in the workplace. In the disability context, the provision of reasonable accom-modation levels uneven playing fields that historically have been presumed unbiased, but operate from baselines that reflect cul-tural prejudice and result in workplace exclusion.34 In this re-spect, reasonable-accommodation challenges assumptions that workplaces must operate in certain modalities and points out that the presumed inherency of a status quo is itself predicated on a noninclusive worldview.35 Further, a social model of disability maintains that it is these culturally constructed and remediable conventions that create the category of "disabled" people, rather than any biological limitations inherent in members of the group.36 An obvious illustration of this view is the effect that stairs at the entry point to an office will have in barring persons with various mobility impairments, whereas a flat threshold would en-able those individuals (as well as many others, such as parents with stroller-bound children) to access the same site.37 Less ap-parent are facially neutral policies such as those allowing all workers ten-minute smoking breaks, but not permitting breaks of equal length for workers with disabilities to focus out schizo-phrenic voices or administer insulin injections.38 34 See Stein, 153 U Pa L Rev at 584 (cited in note 22) (arguing that the ADA takes steps to remedy inherent discrimination against the disabled that is based on mispercep-tions "held out as true and rational beliefs"). 35 See Silvers, Formal Justice at 74-75 (cited in note 26) ("If the majority of people . . . wheeled rather than walked, graceful spiral ramps instead of jarringly angular stair-cases would connect lower to upper floors of buildings."). 36 Anita Silvers and Michael Ashley Stein, Disability, Equal Protection, and the Su-preme Court: Standing at the Crossroads of Progressive and Retrogressive Logic in Consti-tutional Classification, 35 U Mich J L Ref 81, 84 (2001) (arguing that "the methodology for assessing disability as a classification still depends on out-of-date notions rooted in empir-ically unsubstantiated social conventions"). 37 See Ronald L. Mace, Graeme J. Hardie, and Jaine P. Place, Accessible Environ-ments: Toward Universal Design, in Wolfgang F.E. Prieser, Jacqueline C. Vischer, and Edward T. White, eds, Design Intervention: Toward a More Humane Architecture 155, 156 (Van Nostrand Reinhold 1991) (discussing universal design, the central tenet of which is an approach to creating environments and products that are "usable by all people to the greatest extent possible"). 38 For a discussion of how workers with mental disabilities self-accommodate, see Susan Stefan, Hollow Promises: Employment Discrimination against People with Mental Disabilities 179-80 (American Psychological Association 2002). For a discussion of the ef-ficiency of basing hiring decisions on whether a candidate has a mental illness, see Eliza-beth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Georgetown L J 399, 414-19 (2006). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 699 When passing the ADA, Congress recognized that exclusion-ary baselines are not inexorable and can be ameliorated by provi-sion of reasonable accommodation.39 It is thus no surprise that the statute, with its reasonable-accommodation mandate, was con-sistently described and praised as enabling equal civil rights for Americans with disabilities.40 Nor is it surprising that the ADA prominently proscribes the denial of reasonable accommodations as a prohibited form of discrimination41 or that Congress, when amending the statute, attempted to decouple reasonable accom-modation from a stringent identity criterion that limited its ap-plication. 42 Although it is too early to assess the full impact of the ADAAA, it is fair to contrast the progressive vision that Congress held, both in the original and amended versions of the ADA, with that of a judiciary that is seemingly mired in a century-old con-ceptualization of the proper place for, and abilities of, those with disabilities.43 Moreover, the provision of reasonable workplace accommoda-tions has now become a regular feature of contemporary global disability-based legal protections.44 The most expansive example is the United Nations Convention on the Rights of Persons with Disabilities45 (CRPD), which has been ratified by 138 nations as of this writing.46 The CRPD requires States Parties to ensure the provision of reasonable workplace accommodations47 and defines the denial of reasonable accommodation as a form of discrimina-tion. 48 On the regional level, the European Union's employment-discrimination directive requires that individual employers 39 See ADA § 2, 104 Stat at 328-29. 40 For a collection of many words of praise for the ADA, see Robert L. Burgdorf Jr, The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 Harv CR-CL L Rev 413, 413-15 (1991). 41 42 USC § 12112(b)(5). 42 ADAAA § 2, 122 Stat at 3554 (rejecting the "demanding standard" judges used in applying the ADA). 43 See Silvers and Stein, 35 U Mich J L Ref at 94 (cited in note 36) (arguing that the judiciary is "operating from an assumption that disability as a classification is defined by a characteristic of incompetence"). 44 See Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement 55 (Yale 2009) (asserting that "accommodation mandates are the centerpiece of disability discrimination laws"). 45 Resolution 62/170, Convention on the Rights of Persons with Disabilities and Op-tional Protocol Thereto, 77th mtg (Dec 18, 2007) (CRPD). 46 Comprehensive information on the CRPD process is set forth on a website main-tained by the United Nations Department of Economic and Social Affairs called Enable, online at http://www.un.org/disabilities (visited May 21, 2014). 47 See CRPD Art 27(1)(i) (cited in note 45). 48 See CRPD Art 2 (cited in note 45). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 700 The University of Chicago Law Review [81:689 within each of the Member States undertake appropriate measures to provide reasonable workplace accommodations, and likewise construes the denial of reasonable accommodations as discrimination.49 Examples of national legislation incorporating similar reasonable workplace accommodation mandates include Costa Rica,50 Ghana,51 Hungary,52 Malta,53 and the United King-dom. 54 The reasonable-accommodation mandate is also a central part of the global legal reform of domestic disability laws precipi-tated by the CRPD.55 This is especially significant because fewer than fifty countries currently have systemic disability laws,56 and 49 See Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 OJ L303/16, 19 (Nov 27, 2000). The European Union ratified the CRPD as a regional body, the first time it acceded to a UN human rights treaty. One consequence is that each Member State will need to transpose the CRPD's employment provisions, which in places go beyond the Framework Directive. See Lisa Waddington, Reflections on the Establishment of a Frame-work to Promote, Protect and Monitor Implementation of the UN Convention on the Rights of Persons with Disabilities (Article 33(2) CRPD) by the European Union *7 (Maastricht Faculty of Law Working Paper 2011-3, Jan 2011), online at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1746866 (visited May 21, 2014) (reflecting on "the role which spe-cific EU institutions could play in the implementation and monitoring framework" of the CRPD). 50 See Theresia Degener and Gerard Quinn, A Survey of International, Comparative and Regional Disability Law Reform, in Mary Lou Breslin and Silvia Yee, eds, Disability Rights Law and Policy: International and National Perspectives 3, 36-37 (Transnational 2002). 51 See id at 29, 34 (identifying Ghana as including disability under both constitu-tional and civil antidiscrimination laws), citing Persons with Disability Act, 2006, Act 715, § 11-11. 52 See Degener and Quinn, International, Comparative and Regional Disability Law Reform at 34 (cited in note 50), citing Equalization Opportunity Law Act No XXVI, ch III § 15 (1998). 53 Equal Opportunities (Persons with Disability) Act, ch 413, Act 1 of 2000, § 7(2)(d) (Malta) (construing discrimination on the grounds of disability as including the failure to provide reasonable accommodation). 54 See Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment 63 (Hart 2008). 55 See Rosemary Kayess and Phillip French, Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities, 8 Hum Rts L Rev 1, 27 (2008) ("The incorporation of a State obligation to ensure that reasonable accommodations are made to facilitate the exercise by persons with disability of CRPD rights is perhaps the most fundamental instrumental element of the convention."); Janet E. Lord and Michael Ashley Stein, The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities, 83 Wash L Rev 449, 451 (2008) ("[T]he CRPD initiates an unprecedented opportunity for domestic law, policy reform, and genesis on behalf of the globe's ‘largest minority.'"). 56 For the most recent catalogue, see Degener and Quinn, A Survey of International, Comparative and Regional Disability Law Reform at 3 (cited in note 50). Since the CRPD's passage, one of the authors has been involved in disability-related law reform in some three dozen countries. For that perspective, see Michael Ashley Stein and Janet E. Lord, 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 701 disability-related employment laws and policy initiatives are be-ing undertaken for the first time in many parts of the world, in-cluding developing nations.57 B. Accommodations as Civil Rights In at least one important respect, however, American antidis-crimination law aimed at providing disability-based equality of opportunity has yet to attain an ambit analogous to that which courts have come to accord to earlier civil rights laws. To illus-trate, protection against sex discrimination was initially taken to be a benefit only for women, due to the prominence of their suf-fering from sex bias in the workplace and their influence in the achievement of relevant civil rights law.58 Yet, over the last half century and especially the past two decades, an understanding that such protection must extend more widely has evolved. In In-ternational Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v Johnson Controls, Inc,59 for instance, the Supreme Court ruled that denying women bet-ter- paying work assignments based on protecting their reproduc-tive function was discriminatory in part because the employer did not impose the same prohibition on men to protect their reproduc-tive function.60 Similarly, in Oncale v Sundowner Offshore Ser-vices, Inc,61 the Court ruled that Title VII prohibits workplace dis-crimination based on sex, even when all the parties involved are male.62 Changes in both science and fashion affecting gender and sex assignment also inspire evolving recognition that males and fe-males are equally vulnerable to discrimination that invokes sex, and that the effectiveness of protection for all people, regardless of biological sex or gendered-role assignment, should be the Forging Effective International Agreements: Lessons from the UN Convention on the Rights of Persons with Disabilities, in Jody Heymann and Adèle Cassola, eds, Making Equal Rights Real: Taking Effective Action to Overcome Global Challenges 27, 27-47 (Cambridge 2012). 57 See Michael Ashley Stein and Penelope J.S. Stein, Beyond Disability Civil Rights, 58 Hastings L J 1203, 1213-14 (2007). 58 See William N. Eskridge Jr, Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive, 57 UCLA L Rev 1333, 1345 (2010) (describing women's involvement in the civil rights movement). 59 499 US 187 (1991). 60 See id at 198-200. 61 523 US 75 (1998). 62 See id at 77-80. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 702 The University of Chicago Law Review [81:689 same.63 For example, in regard to the gendering of a caregiver role, in 1999 a highway patrolman triumphed over his state em-ployer that, based on his sex, had denied him protection as a pri-mary caregiver for his newborn child under the Family and Med-ical Leave Act of 199364 (FMLA).65 And in regard to biological sex, in 2006 a court allowed a transsexual's denial-of-employment suit to proceed against the Library of Congress under Title VII be-cause "discrimination against transsexuals because they are transsexuals is ‘literally' discrimination ‘because of . . . sex'";66 the court likewise rejected an eligibility standard that construed Title VII protection as a benefit only for born women because of "the factual complexities that underlie human sexual identity."67 As the court explained, "[t]hese complexities stem from real varia-tions in how the different components of biological sexuality . . . interact with each other, and in turn, with social, psychological, and legal conceptions of gender."68 The US Department of Justice did not appeal, and in 2008 a federal district judge issued a groundbreaking decision finding that sex discrimination had oc-curred because the Library's withdrawal of a job offer was prompted by the prospective employee's sex change.69 In conse-quence, the government was ordered to pay nearly $500,000 as compensation for the discrimination, the maximum allowable in the case.70 In contrast, the approach to protecting against disability dis-crimination continues to oversimplify the varied interactions 63 See, for example, id at 79-80 (holding that a male employee's claim of same-sex sexual harassment is actionable under Title VII); Barnes v City of Cincinnati, 401 F3d 729, 737 (6th Cir 2005) (holding that discriminating against a preoperative male-to-female transsexual police officer for failing to conform to sexual stereotypes violates Title VII); Smith v City of Salem, Ohio, 378 F3d 566, 572-75 (6th Cir 2004) (holding that a male employee with gender identity disorder may not be discriminated against for failing to conform to gender expectations); Schafer v Board of Public Education of the School District of Pittsburgh, PA, 903 F2d 243, 248 (3d Cir 1990) (holding that reserving the benefit of one-year leave without pay exclusively for female teachers impermissibly discriminates against their male counterparts). 64 Pub L No 103-3, 107 Stat 6, codified as amended in various sections of Titles 5 and 29. 65 See Knussman v Maryland, 272 F3d 625, 635-37 (4th Cir 2001). Knussman's wife had a difficult pregnancy and medical complications after delivery that necessitated her taking sick leave; Knussman sought leave to care for both his wife and his child. Id at 628- 29. 66 Schroer v Billington, 424 F Supp 2d 203, 212 (DDC 2006). 67 See id at 211-12. 68 Id at 212-13. 69 Schroer v Billington, 577 F Supp 2d 293, 308 (DDC 2008). 70 Schroer v Billington, 2009 WL 1543686, *4 (DDC). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 703 among the components of impairment, as well as the complex in-terplay of physiological, social, and legal conceptions of disability. A long history of charitable public and private programs frames disability-discrimination policy, making it difficult to advance be-yond the idea that accommodation protection is a special benefit for which the eligibility bar must be set high. Unlike sex-discrim-ination protections, which have evolved in the direction of protect-ing not just women, but whoever happens to be harmed by bias based on sex,71 the scope of disability-discrimination protection seems not to have progressed. The divisions between race-based, sex-based, and disability-based workplace discrimination are not decisively sharp, however. The biases fueling all three kinds of wrong, as well as the pretexts implementing them, arise from dis-comfort about lack of fit with whatever workplace practices are normative at the time and thereby result in refutable attributions of incapability. Such stigmatization has precluded racial minori-ties and women, as well as work-capable people who depart in other ways from idealized worker paradigms, from productive and rewarding employment. As this Article explains in Part V, European disability juris-prudence attempts to remedy vulnerability, broadly construed, to disability discrimination rather than focusing narrowly on whether each individual is sufficiently vulnerable to deserve pro-tection. Hence, non-US courts have taken up the sophisticated civil rights conception of disability that Congress built into the ADA, but which American judges have left behind. II. DISABLING THE WORKFORCE Modern health-care advances are enabling people to live longer while changes to retirement and pension systems require people to work to older ages.72 Many of these individuals will in consequence experience impairments that require workplace ac-commodation. Removing work-capable individuals from the labor market will invoke immense and unjustifiable social costs. ADA implementation that focuses on initial determinations dividing 71 See Oncale, 523 US at 82 (overturning Fifth Circuit precedent that sexual harass-ment of males by other males creates no cause of action under Title VII). 72 See David E. Bloom, David Canning, and Günther Fink, Implications of Popula-tion Aging for Economic Growth *25 (National Bureau of Economic Research, Working Paper No 16705, Jan 2011), online at http://www.nber.org/papers/w16705.pdf (visited May 21, 2014); Courtney C. Coile and Phillip B. Levine, Reconsidering Retirement: How Losses and Layoffs Affect Older Workers 44 (Brookings 2010). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 704 The University of Chicago Law Review [81:689 individuals who deserve to be accommodated so as to remain on the job from those who are unworthy of such retention cannot help but drive up those costs. A. The Changing Workforce The need for aging workers to stay on the job is spurred by both demographic changes and policy considerations. Increasing overall life expectancy,73 combined with the baby boom generation reaching the eligibility age for retirement benefits,74 has contrib-uted to a significant graying of America.75 Yet, despite reports that aging workers need to work longer, the number of US workers claiming Social Security benefits is in-creasing at an unsustainable pace.76 Recent forecasts by the fed-eral government show Social Security and Medicare currently be-ing funded at a rate that will not cover future expenditures.77 Medicare, which provides health insurance to 47 million elderly and disabled Americans, is projected to begin running a deficit in 2024.78 Social Security, which in 2010 began paying out more in benefits than it collects in taxes, is expected to be insolvent by 2036.79 While rising public-welfare expenditures have long and of-ten been discussed loosely as a "crisis,"80 the looming insolvency of Social Security and Medicare helps concretize the gravity of the current situation. Similar rising dependency costs are associated with the SSDI program, which provides income support and medical benefits to 73 See Census Bureau, Statistical Abstract of the United States: 2012 77 table 105, 80 table 108, online at http://www.census.gov/compendia/statab/2012edition.html (visited May 21, 2014) (profiling a steady rise in life expectancy over the period 1970-2008). 74 Social Security Administration, Status of the Social Security and Medicare Pro-grams: A Summary of the 2011 Annual Reports *4, online at http://www.ssa.gov/history /pdf/tr11summary.pdf (visited May 21, 2014). 75 The share of those aged sixty-five and over is expected to rise from 17 percent in 2000 to 28 percent by 2050. David Neumark and Joanne Song, Do Stronger Age Discrimi-nation Laws Make Social Security Reforms More Effective? *1 (Michigan Retirement Re-search Center Working Paper No 249, Sept 2011), online at http://ssrn.com/ab-stract= 1960716 (visited May 21, 2014). 76 Id at *1-3. For example, between 2008 and 2009, the number of workers claiming Social Security benefits rose by 23 percent. Id at *3. 77 See Social Security Administration, Status of the Social Security and Medicare Programs at *1 (cited in note 74). 78 Id at *11. 79 Id. 80 Deborah A. Stone, The Disabled State 186-89 (Temple 1984) (discussing how "cri-sis" is a popular, rhetorical device that does not offer insight into whether a program col-lapse is imminent). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 705 disabled individuals who are fully unable to work.81 SSDI's mutu-ally exclusive paradigm of disability and employability was ques-tionable even in 1956 when a substantial portion of jobs involved strenuous activity.82 Most current jobs are not predicated on phys-ically strenuous activities, and many individuals with impair-ments can remain in the labor force with appropriate accommo-dation. 83 Workplace accommodations such as flexible hours, assistive technologies, telecommuting, and adjusting tasks to be less physically strenuous can help keep employees working and economically independent. Significantly and problematically, once employees develop a work-limiting impairment, the SSDI program discourages im-paired workers from remaining in the workforce. Instead, the pro-gram provides strong incentives for workers to seek SSDI bene-fits- and for employers to terminate impaired employees.84 In particular, employees are induced to quit their jobs immediately after the onset of a work-limiting disability since it is impossible under current law for them to obtain assistance from SSDI with-out first leaving the labor force; workers who participate in gain-ful employment during the application period are automatically denied benefits.85 Once workers have left the labor force, they en-ter the throes of an SSDI application process that can take 81 See Social Security Administration, How We Decide If You Are Disabled, online at http://www.ssa.gov/disability/step4and5.htm (visited May 21, 2014) (explaining that "you are not disabled according to our rules unless your illnesses, injuries or conditions prevent you from doing your past work or adjusting to other work"). 82 See David H. Autor and Mark Duggan, Supporting Work: A Proposal for Modern-izing the U.S. Disability Insurance System *1-2 (The Center for American Progress and the Hamilton Project Dec 2010), online at http://economics.mit.edu/files/6281 (visited May 21, 2014). 83 See Ross C. Brownson, Tegan K. Boehmer, and Douglas A. Luke, Declining Rates of Physical Activity in the United States: What Are the Contributors?, 26 Ann Rev Pub Health 421, 427-30 (attributing declining levels of physical activity in part to more seden-tary employment). 84 See David Autor, The Unsustainable Rise of the Disability Rolls in the United States: Causes, Consequences, and Policy Options *8 (MIT Working Paper No 12-01, Nov 2011), online at http://ssrn.com/abstract=1987244 (visited May 21, 2014). 85 See id at *9. See also Coile and Levine, Reconsidering Retirement at 127 (cited in note 72) (noting unemployed workers may adjust their behavior to make it more likely they will receive benefits-a "moral hazard"); Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims 20 (Yale 1983) (noting that Congress has con-tinuously seen Social Security as, among other things, an "open invitation to drop out of the work force"). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 706 The University of Chicago Law Review [81:689 months or years, due to both the statutory waiting period and de-lays in the process.86 If the claim is denied, the claimant then faces an uphill battle to return to the market after an extended ab-sence. 87 If the process leads to an SSDI award, the claimant faces strong pressures to refrain from working in order not to jeopard-ize hard-fought and obtained benefits.88 This system provides a mild incentive for employers to terminate employees and no in-centive for employers to weigh the costs they impose on the SSDI system against the alternative costs of providing accommodations that might allow employees to keep working.89 As labor economist David Autor notes, "It is difficult to overstate the role that the SSDI program currently plays in discouraging the ongoing em-ployment of non-elderly adults."90 As with Social Security and Medicare, the SSDI program's costs have become unsustainable.91 Between 1989 and 2009, the share of adults receiving SSDI benefits doubled, from 2.3 percent to 4.6 percent of Americans ages twenty-five to sixty-four.92 86 See Autor, The Unsustainable Rise of the Disability Rolls in the United States at *9-10 (cited in note 84). 87 See id at *10. See also Stone, The Disabled State at 180 (cited in note 80) ("Partic-ularly in fragmented systems like the American one, where disability evaluation is not connected with actual job-finding services, the determination of residual working ability is likely to leave the individual in a no-man's-land: he or she is ‘found' able to work but not ‘found' a job."). 88 See Autor, The Unsustainable Rise of the Disability Rolls in the United States at *10 (cited in note 84). 89 See id at *9. There is of course one incentive to provide an accommodation for a statutorily defined disability: to avoid litigation under the ADA. However, very few will in actuality sue. Additionally, many employees will develop a work-limiting impairment that does not rise to the level of an ADA-defined "disability." See notes 132-34 and accompa-nying text. There is also a mild incentive for small businesses to provide accommodations through a yearly tax credit up to about $5,000, which is available to small businesses that provide certain types of accommodations. 26 USC § 44. 90 Autor, The Unsustainable Rise of the Disability Rolls in the United States at *10 (cited in note 84). Richard Burkhauser further warns: The disproportionate growth in the younger transfer population is rapidly changing our disability-transfer system from one primarily meant to ease the transition into retirement for older workers to a program providing lifetime transfers from cradle to grave. This growth is unprecedented in the history of our system and is counter to the goal of integrating people with disabilities into mainstream employment. Increasingly, the SSI and SSDI programs are being used as alternatives to a more general income maintenance program. Richard V. Burkhauser, Post-ADA: Are People with Disabilities Expected to Work?, 549 Annals Am Acad Polit & Soc Sci 71, 82 (1997). 91 See Autor and Duggan, Supporting Work at *2 (cited in note 82). 92 Id. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 707 Within the same time frame, annual cash payments to SSDI re-cipients rose from $40 to $121 billion, and accompanying Medi-care expenditures rose from $18 to $69 billion.93 SSDI expendi-tures now outpace the tax revenue dedicated to the program by 30 percent, leading the Trustees of the Social Security Admin-istration to forecast SSDI insolvency as early as 2015.94 The cu-mulative economic costs of these several projections are, of course, significant. It will require innovation and foresight for govern-ment entitlements to keep pace with SSDI, along with Social Se-curity and Medicare. Moreover, recent statistics indicate that both the aging and disabled populations are employed at relatively low rates. As the disability rolls have risen, the employment rate of people with disabilities has fallen.95 For example, the gap in the employment rate between people aged forty to sixty-five years with disabilities and their counterparts without disabilities widened by 10 percent from 1988 to 2008.96 This widening has resulted in an even more substantial gap between people with disabilities and those with-out. For example, in 2008, the employment rate of males in their forties and fifties with a self-reported disability was about 16 per-cent, compared to 88 percent employment of comparably aged males with no reported disability.97 The employment rate of aging workers is low as well. Recent studies suggest that age discrimi-nation against middle-aged workers (aged approximately forty to sixty-five years) is common, which in turn increases the likelihood they will separate from their employer and subsequently be un-employed. 98 Additionally, the most recent data suggest those aged sixty-five and over are employed at an extremely low rate relative to the population.99 One reason for the lower employment rates of 93 Id. 94 Id at *3. See also Phil Izzo, Number of the Week: Disability Fund Three Years from Insolvency, Real Time Economics Blog (Wall St J June 1, 2013), online at http://blogs.wsj.com/economics/2013/06/01/number-of-the-week-disability-fund-three-years- from-insolvency (visited May 21, 2014). 95 See Autor and Duggan, Supporting Work at *2-5 (cited in note 82). 96 Id at *2. 97 See id. 98 See Neumark and Song, Do Stronger Age Discrimination Laws Make Social Secu-rity Reforms More Effective? at *5-6 (cited in note 75) (canvassing research that has found evidence of age discrimination against those under the age of sixty-five). 99 In 2006, only 15 percent of those aged sixty-five and over were employed. David Neumark, The Age Discrimination in Employment Act and the Challenge of Population Aging, 31 Rsrch on Aging 41, 43 (2009). See also Neumark and Song, Do Stronger Age Discrimination Laws Make Social Security Reforms More Effective? at *1 (cited in note 75) 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 708 The University of Chicago Law Review [81:689 these groups is straightforward. Aging systematically and gener-ally makes working more difficult, as people develop various ill-nesses and impairments. In addition, there may appear to be a net economic incentive not to hire or retain individuals with such impairments, for fear of overt efficiency or accommodation costs.100 For workers with impairments, there are thus demand-side and supply-side impediments to their continued employment. First, there is a demand-side dilemma, in which workers with im-pairments may require a modification or accommodation but be reluctant to request it from their employer. Impaired individuals' reluctance to request an accommodation may be driven by ques-tions regarding whether they have a legally defined "disability," the desire to avoid the perception they are getting "special" treat-ment, an inhospitable workplace culture, fears of retaliation, and/or the incentive to pursue SSDI benefits instead of pursuing work. Second, there is a supply-side problem, in which employers are reluctant to structure the workplace to attract and retain par-tially disabled and elderly employees who are capable of working. Employer reluctance may be driven by a desire to avoid accom-modation costs, simple bias, and/or inertia toward maintaining the status quo. Still, older workers are more able than ever to work, especially with accommodations, since the length of healthy old age-not just absolute life expectancy-has steadily increased over time.101 At least part of the solution to rising dependency costs is to incentivize aging workers to keep working. Many different recom- ("[T]he very low employment rate of seniors implies slowing labor force growth relative to population, and a rising dependency ratio."). 100 See, for example, Thomas DeLeire, The Unintended Consequences of the Ameri-cans with Disabilities Act, 23 Regulation 21, 22-23 (2000) (documenting how the ADA's accommodation mandate has increased the cost of employing disabled workers and thus made such workers unattractive to businesses). 101 See Bloom, Canning, and Fink, Implications of Population Aging for Economic Growth at *1 (cited in note 72). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 709 mendations within this vein have been advanced, including rais-ing the retirement age for full Social Security benefits,102 requir-ing employers to offer workers private disability insurance,103 providing a tax credit for disabled workers,104 and increasing the amount of Social Security recipient earnings that are exempt from taxation.105 The sum result of these demographic and eco-nomic developments is that it is more necessary than ever for ag-ing employees-many of whom have impairments ranging from mild to severe-to continue working. In short, people who live longer must be able to work longer. All these recommendations for responding to the graying of the national population depend upon the opportunity for aging workers to obtain and/or maintain jobs. However, aging and/or disabled workers face several naturalized, workplace-specific im-pediments- in addition to the incentives not to work noted above. Prominent among these may be a form of age bias that resembles disability bias by confining those targeted to unobtrusive or retir-ing roles. A 2013 Princeton University age-discrimination study found that while college students valued potential collaborators of all ages who were demonstratively generous, the participants downgraded only "assertive" potential collaborators who were older; potential collaborators who were both "assertive" and young (or middle-aged) still received uniformly positive scores.106 102 See Coile and Levine, Reconsidering Retirement at 129-30 (cited in note 72). Rais-ing the retirement age has been an especially popular proposal. For example, in 2011, US senators Lindsey Graham, Rand Paul, and Mike Lee proposed the Social Security Solvency and Sustainability Act, which would raise the retirement age under Social Security from sixty-seven to seventy. S 804, 112th Cong, 1st Sess, in 157 Cong Rec S2446 (Apr 13, 2011). 103 See Autor and Duggan, Supporting Work at *17-18 (cited in note 82) (proposing that employers be required to offer workers private disability insurance, in part so that employers have an incentive to recognize the costs their decisions regarding whether to accommodate have on the broader disability system). See also Stone, The Disabled State at 181 (cited in note 80) ("Since employers do not pay direct premiums for Social Security disability programs, as they do for industrial accident insurance, they do not perceive any direct costs when they shift their less productive workers into these social insurance schemes."). 104 See Burkhauser, 549 Annals Am Acad Polit & Soc Sci at 81-82 (cited in note 90) (proposing a disabled-worker tax credit that would "subsidize the labor earnings of people with disabilities who live in low-income families"). 105 See Neumark and Song, Do Stronger Age Discrimination Laws Make Social Secu-rity Reforms More Effective? at *1 (cited in note 75). 106 Michael Winerip, Three Men, Three Ages. Which Do You Like?, NY Times B1 (July 22, 2013). See also generally Raymond F. Gregory, Age Discrimination in the American Workplace: Old at a Young Age (Rutgers 2001) (considering the ways in which age discrim-ination persists and will likely increase as America's economic outlook becomes less opti-mistic). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 710 The University of Chicago Law Review [81:689 The results of this study are illustrative of the "subtle bias" older men and women continue to face in the workforce.107 B. The Current Gap between Work Capability and Accommodation Employment-discrimination statutes are intuitively promis-ing legal avenues for helping employees with developing impair-ments who are still work capable to remain on the job. Yet anti-discrimination statutes generally and the ADA in particular are ironically ill suited for this group once judges are required to de-termine the worthiness for accommodation of a given individual's impairment.108 The Age Discrimination in Employment Act of 1967109 (ADEA), the Genetic Information Nondiscrimination Act of 2008110 (GINA), and the ADA may appear apposite for protecting aging and work-capable employees. However, there are limits to the efficacy of each of these statutes. None is likely to aid with the new hiring of workers of any age because simply enforcing exist-ing antidiscrimination laws-when they are enforced-is unlikely to help individuals start working.111 Additionally, the ADEA and GINA fail as a structural matter to help employees who develop work-limiting impairments keep working. The ADEA prohibits age discrimination in employment against any individual at least forty years of age,112 but provides no positive rights (such as ac-commodations) for aging workers with impairments.113 GINA pro-hibits discrimination in employment against anyone on the basis 107 Winerip, Three Men, Three Ages, NY Times at B1 (cited in note 106). 108 See generally Silvers and Stein, 35 U Mich J L Ref 81 (cited in note 36) (comparing the judiciary's retrogressive practice of presuming the incompetency of the disabled to out-moded notions of the stereotypical incompetence of women); Anita Silvers and Michael Ashley Stein, An Equality Paradigm for Preventing Genetic Discrimination, 55 Vand L Rev 1341 (2002) (describing how current judicial approaches to disability and genetic dis-crimination fail to adequately protect otherwise productive citizens). See also Bradley A. Areheart, Disability Trouble, 29 Yale L & Pol Rev 347, 385-87 (2011) (discussing the ex-treme reliance by judges on medical diagnoses as proxies for whether someone is disabled). 109 Pub L No 90-202, 81 Stat 602, codified as amended at 29 USC §§ 621-34. 110 Pub L No 110-233, 122 Stat 881, codified in various sections of Titles 26 and 42. 111 See Coile and Levine, Reconsidering Retirement at 126-27 (cited in note 72) (not-ing that enforcement of antidiscrimination laws, such as the ADEA, "may not provide much help to older job losers struggling to find new work"). 112 29 USC §§ 623(a)(1), 631(a). 113 Even if age-related impairments require accommodation for a worker to stay qual-ified or productive, there is no obligation under the ADEA to provide one. See, for example, Smith v Midland Brake, Inc, a Division of Echlin, Inc, 138 F3d 1304, 1312 (10th Cir 1998) 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 711 of genetic information.114 However, once a genetically based con-dition has manifested itself, the ADA-not GINA-applies.115 Moreover GINA, much like the ADEA, provides no right to accom-modation. 116 The ADA provides some, but not all, disabled workers with the right to reasonable accommodations.117 The ADA's employ-ment provisions define employment discrimination to include a failure to make reasonable accommodations for "an otherwise qualified individual with a disability."118 Having a "disability" un-der the ADA means having (a) "a physical or mental impairment that substantially limits one or more of the major life activities of such individual" ("actual" disability), (b) "a record of such an im-pairment" ("record of" disability), or (c) "being regarded as having such an impairment" ("regarded as" disability).119 Notably, a "qualified individual" is one who can perform the essential func-tions of a job either with or without accommodation.120 ("The ADEA does not require employers to provide any sort of accommodations for em-ployees who become unable to perform their jobs."), revd on other grounds, Smith v Mid-land Brake, Inc, 180 F3d 1154 (10th Cir 1999) (en banc). 114 GINA § 202, 122 Stat at 907, codified at 42 USC § 2000ff-1. 115 GINA § 210, 122 Stat at 920, codified at 42 USC § 2000ff-9. 116 See Bradley A. Areheart, GINA, Privacy, and Antisubordination, 46 Ga L Rev 705, 711-12 (2012) (explaining how GINA might benefit from an accommodation provision). 117 The ADA now expressly excludes those who meet only the "regarded as" definition of disability from having the right to reasonable accommodations. 42 USC § 12201(h). 118 42 USC § 12112(a), (b)(5) (noting that "discriminat[ing] against a qualified indi-vidual with a disability because of the disability" includes an unwillingness to make rea-sonable accommodations). 119 42 USC § 12102(2). "Broken out, actual disability contains three principle require-ments: first, there must be a physical or mental impairment; second, the impairment must be substantially limiting; and last, the impairment must substantially limit a major life activity. The ‘physical or mental impairment' requirement is rarely an issue in ADA case law." Bradley A. Areheart, When Disability Isn't "Just Right": The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind L J 181, 211 (2008). "It is the second requirement-that the impairment substantially limit a major life activity- that has garnered the majority of federal courts' attention." Id at 211-12 (emphasis added). Courts have interpreted these requirements narrowly, frequently finding that con-ditions are either not substantially limiting or do not affect a major life activity. See ADAAA § 2(a)-(b), 122 Stat at 3553 (discussing Supreme Court cases that narrowed the definition of "disability," prompting Congress to amend the ADA). And courts have inter-preted "regarded as" claims to require proving one was regarded as having an "actual dis-ability"- thus incorporating the same burdens associated with proving actual disability. Areheart, 83 Ind L J at 212 (cited in note 119). 120 42 USC § 12111(8). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 712 The University of Chicago Law Review [81:689 Reasonable accommodations fall mainly into one of two cate-gories. The first type concerns alteration of the physical work-place, such as ramping stairs or adjusting the height of a sink.121 These accommodations involve "hard" costs or immediate and concrete out-of-pocket expenses.122 The second main accommoda-tion type requires altering the way jobs are structured. This could include modifying the criteria for applicants or rearranging work schedules.123 These accommodations involve "soft costs," which are harder to quantify than out-of-pocket expenses, and could in-volve external costs such as training human resource personnel.124 The ADAAA stipulates that accommodations are not available for individuals who qualify for protection solely under the regarded-as prong of the definition.125 The ADA and its accompanying regulations require an appli-cant or employee seeking accommodation to ask the employer for the accommodation. It is not necessary to indicate that the accom-modation is being requested under the ADA or to use any magic language in making the request.126 An employer must then engage in an "interactive process" to evaluate the individual's limitations and determine what potential reasonable accommodations might compensate for those limitations.127 If the employer declines the request and the applicant or worker would like to challenge that denial, he or she must then file a complaint with the Equal Em-ployment Opportunity Commission (EEOC).128 The EEOC will in-vestigate the issue and may attempt to resolve it through concili-ation or by litigating the matter.129 If the parties, with the help of 121 Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 Duke L J 79, 88 (2003). See also 42 USC § 12111(9)(A) (defining reasonable accommodation to include "making existing facilities used by employees readily accessible to and usable by individuals with disabilities"). 122 Stein, 53 Duke L J at 88 (cited in note 121). 123 See 42 USC § 12111(9)(B) (defining reasonable accommodation to include "job re-structuring, part-time or modified work schedules, reassignment to a vacant position, ac-quisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or inter-preters, and other similar accommodations"). 124 Stein, 53 Duke L J at 88-89 (cited in note 121). 125 See 42 USC § 12201(h). 126 See, for example, Taylor v Phoenixville School District, 184 F3d 296, 313 (3d Cir 1999). 127 29 CFR §§ 1630.2(o)(3), 1630.9. 128 42 USC § 2000e-5; 29 CFR §§ 1601.6-1601.8 (providing guidelines for this pro-cess). 129 Samuel R. Bagenstos, Disability Rights Law: Cases and Materials 152 (Founda-tion Press 2010). See also 42 USC § 2000e-5(b); 42 USC § 2000e-5(f). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 713 the EEOC, cannot resolve their differences, then the individual may file suit in a federal district court alleging that the denial of the request for accommodation violates the ADA.130 If the court finds the requested accommodation was reasonable, then the em-ployer must provide the accommodation or pay damages.131 While the ADA provides a clear right and process for seeking reasonable accommodations, there are both structural and inter-pretive challenges to securing them. The most fundamental has been mediating the disability-versus-ability-binary categories: proving that one's impairment is severe enough to qualify under the ADA while at the same time showing that one is "qualified" and capable for a particular job. In other words, plaintiffs have had to show that they are "disabled enough" to seek a reasonable accommodation, but not "too disabled" and thus unqualified for the job.132 Indeed, the very evidence that plaintiffs must provide regarding the severity of their impairment may be used by an em-ployer to argue that it was the degree of impairment that pre-vented the plaintiff from performing essential job functions.133 The result under the ADA has seemed to be that the measure of disability must be "just right" to establish an individual's worthi-ness to invoke the statute's protections.134 Pursuing accommodation presents further interpretive diffi-culties, because once an applicant or employee shows she is disa-bled enough to warrant the protections of the ADA, she faces a host of other jurisprudential challenges. While a qualified indi-vidual with a disability may always seek a reasonable accommo-dation, there are limits to whether an employer must provide an accommodation. Under the ADA, an employer does not have to provide an accommodation that would impose costs constituting an "undue hardship" on the operation of the employer's busi-ness. 135 Since before the ADAAA judges focused on the strictures of the definition of disability at the summary judgment phase and avoided ruling on whether an accommodation is reasonable, there is little precedent to assure a challenging party that a particular 130 See Bagenstos, Disability Rights Law at 152 (cited in note 129). 131 42 USC § 1981a(a)(3). 132 Areheart, 83 Ind L J at 209-25 (cited in note 119) (analyzing in detail this compli-cated tension). 133 See generally National Council on Disability, Defining "Disability" in a Civil Rights Context: The Courts' Focus on Extent of Limitations as Opposed to Fair Treatment and Equal Opportunity (2003). 134 Areheart, 83 Ind L J at 209 (cited in note 119). 135 See 42 USC § 12112(b)(5)(A). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 714 The University of Chicago Law Review [81:689 accommodation will be found reasonable and not to constitute an undue hardship.136 The matter is further complicated because the language of reasonable-accommodation holdings tends to be nongeneral and fact specific.137 The judiciary's reluctance to adumbrate the issue of reasona-ble accommodation has left a dearth of precedent and many issues unresolved.138 Examples of contested questions include whether an employer must reassign an individual with a disability to a vacant position when there is a more qualified applicant,139 whether accommodations must be provided that enable someone to travel to work (as opposed to enabling them to do their job once they arrive on the premises),140 and whether there should be a presumption that allowing an employee to work from home is not a reasonable accommodation.141 Additionally, in considering the ultimate cost of the accommodation to the employer, there are un-resolved issues about what benefits and costs should be consid-ered. For benefits, should courts weigh the value of accommoda-tions to other current and future employees with disabilities?142 When the benefits of the accommodation extend to nondisabled 136 The fact-intensive nature of reasonable accommodation and the lack of precedent might help explain why many judges have, at the summary judgment stage, focused more on the question of whether a plaintiff is disabled and less on whether the accommodation sought was reasonable. Reasonable-accommodation issues simply are not easily decided at summary judgment. See Stein, 53 Duke L J at 90-96 (cited in note 121). 137 Id. 138 Michael Ashley Stein, Michael E. Waterstone, and David B. Wilkins, Book Review, Cause Lawyering for People with Disabilities, 123 Harv L Rev 1658, 1699-1701 (2010) (noting that in over two decades of ADA jurisprudence, there is only one employment case "defining the contours of reasonable accommodation despite the lack of clear statutory guidance"). Some of the unwillingness to resolve open accommodations issues may flow from the fact that the EEOC has historically been the entity to provide most of the specific accommodations guidance through its regulations. There is also the possibility that the medical-model mindset that accompanied the Rehabilitation Act is still strong, and pre-vents some judges from seeing the social solution of accommodations-instead of a medical solution-as what people with disabilities really need. See Stein and Stein, 58 Hastings L J at 1207-08 (cited in note 57) (noting that the Rehabilitation Act furthered the medical model of disability through "determining that individuals are disabled due to ‘special' med-ical problems and were therefore dependent on social services and institutions"). See also Areheart, 83 Ind L J at 192-209 (cited in note 119) (discussing the modern-day entrench-ment of the medical model of disability in both the media and federal court jurisprudence). 139 See, for example, Equal Employment Opportunity Commission v Humiston-Keel-ing, Inc, 227 F3d 1024, 1029 (7th Cir 2000); Smith, 180 F3d at 1167-68. 140 Bagenstos, Disability Rights Law at 92-93 (cited in note 129). 141 See, for example, Vande Zande v Wisconsin Department of Administration, 44 F3d 538, 544 (7th Cir 1995). 142 See Jeannette Cox, Crossroads and Signposts: The ADA Amendments Act of 2008, 85 Ind L J 187, 222 (2010). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 715 employees and customers, should those benefits be considered as well?143 For costs, should courts consider nonmonetary costs, such as costs to employer autonomy and coworker morale?144 The ADAAA does nothing to address these questions or otherwise fur-ther demarcate the bounds of reasonable accommodation. Keeping the bar relatively high for securing an accommoda-tion was part of the political compromise necessary to achieve the ADAAA's passage.145 In the course of negotiations, the disability community had argued that the bar for proving one had a disabil-ity should be lower; people with impairments should be protected from discrimination no matter the severity of that impairment.146 The business community acquiesced to this argument, but with a catch. They agreed to lower the bar for discrimination claims, al-lowing people with disabilities to bring a discrimination claim un-der the "regarded as" prong without requiring a showing of limi-tation on bodily functions.147 However, the business community did not believe it should be required to provide an accommodation for people with nonsevere impairments (in other words, those that do not substantially limit one or more major life activities).148 In enacting the ADAAA, Congress therefore coupled the expansion of the definition of disability with the provision that plaintiffs un-der the "regarded as" prong were not entitled to accommodations, reasoning that anyone who needed accommodation to realize work capability would be able to qualify under either the first or second prong of the definition.149 Perhaps the greatest conundrum occasioned by the ADA's statutory language and scope, as far as including work-capable 143 See Elizabeth F. Emens, Integrating Accommodation, 156 U Pa L Rev 839, 842- 43 (2008) (raising this question). 144 See Nicole B. Porter, Reasonable Burdens: Resolving the Conflict between Disabled Employees and Their Coworkers, 34 Fla St U L Rev 313, 315 (2007) (proposing "an amend-ment to the ADA that clearly defines an employer's obligation to accommodate a disabled employee even though the accommodation conflicts with the rights of other employees"). 145 See generally 2008 and the ADA Amendments Act, Archive ADA: The Path to Equality (Georgetown Law), online at http://www.law.georgetown.edu/archiveada /#ADAAA (visited May 21, 2014). This site is then-Professor Chai Feldblum's legislative history website, which includes all of the legislative history leading up to the passage of the ADA Amendments Act. 146 Kevin Barry, Toward Universalism: What the ADA Amendments Act of 2008 Can and Can't Do for Disability Rights, 31 Berkeley J Emp & Labor L 203, 262-63 (2010). 147 Id at 264. 148 Id at 263-64. 149 Statement of the Managers to Accompany S. 340, the Americans with Disabilities Amendments Act of 2008, 110th Cong, 2d Sess, in 154 Cong Rec S 8346-47 (daily ed Sept 11, 2008) (Statement of Senate Managers). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 716 The University of Chicago Law Review [81:689 persons with impairments in the workforce through its accommo-dation mandate, has been created by the Supreme Court's inter-pretive jurisprudence.150 The Court has promoted a gatekeeping function, both through an overly parsimonious interpretation of statutory language (for example, severity of disability)151 and through gratuitous and constricting glosses on issues not raised by litigants (notably, weighing the possibility of mitigating measures).152 The ADAAA explicitly repealed each of these ap-proaches, yet the inability of the Court to resolve the tension be-tween work capability and disability status remains a critical problem. Part III explores further how this conceptual divide ap-pears to persist in early ADAAA case law. No ADA employment-discrimination suit brought before the Supreme Court (prior to the ADAAA) achieved victory, and every case involved persons with impairments who were both work ca-pable and seeking to retain their employment.153 Claimants in 150 Silvers and Stein, 35 U Mich J L Ref at 115-23 (cited in note 36) (surveying recent decisions by the Court and suggesting that it "may continue to draw sharp lines between species-typical and biologically anomalous people regardless of technological, social, and legal changes that permit disabled people to achieve the capabilities long practiced by the nondisabled"). 151 Areheart, 83 Ind L J at 212-18, 222-23 (cited in note 119) (canvassing the various ways federal courts have provided narrow answers to the threshold question of whether someone has a "disability" under the ADA). 152 See Stein, 153 U Pa L Rev at 628-29 n 205 (cited in note 22) (discussing the pos-sibility that the Supreme Court's consideration of mitigating measures in Sutton v United Air Lines, Inc, 527 US 471 (1999), if broadly construed, could "be understood as raising a duty to mitigate one's disability"). 153 See, for example, Chevron USA, Inc v Echazabal, 536 US 73, 85-86 (2002) (finding that despite the employee's ability and willingness to work, the employer could, pursuant to an EEOC regulation, refuse to hire him for fear of endangering his existing health dis-ability without running afoul of the ADA); US Airways, Inc v Barnett, 535 US 391, 403- 06 (2002) (holding that, without a showing of special circumstances by the employee, the employer is not required to make accommodations in contravention of an established sen-iority system); Toyota Motor Manufacturing, Kentucky, Inc v Williams, 534 US 184, 201 (2002) (holding that the employee's inability to perform certain duties required of her po-sition did not render her disabled under the ADA, and thus no accommodation was re-quired); Board of Trustees of the University of Alabama v Garrett, 531 US 356, 360 (2001) (holding that the employees' claims for money damages against the state for discrimina-tion under the ADA were barred by the Eleventh Amendment); Albertson's, Inc v Kirking-burg, 527 US 555, 564-67 (1999) (declining to find the employee disabled by monocular vision because the condition constituted a mere inability rather than a "disability" under the ADA); Murphy v United Parcel Service, Inc, 527 US 516, 521 (1999) (holding the claim-ant was not "disabled" by high blood pressure because it could be mitigated by medication so that he was employable in alternative fields of work); Sutton, 527 US at 492-94 (holding that the job applicants' poor vision did not render them "disabled" even if it resulted in preclusion from a particular position). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 717 Sutton v United Air Lines, Inc,154 were nearsighted pilots deemed work-capable to fly regional aircraft, but not to pilot long-haul flights;155 plaintiffs in Murphy v United Parcel Service, Inc156 and Albertson's, Inc v Kirkingburg,157 were functionally capable truck drivers with high blood pressure and monocular vision, respec-tively, whose employers were not required to continue their until-then acceptable employment via use of available regulatory waiv-ers; 158 Board of Trustees of the University of Alabama v Garrett159 did not raise an accommodation request-although the Court con-strued it as such-but rather involved a nurse returning from breast cancer treatment who sought reinstatement to her hospital job, and a prison guard allergic to cigarette smoke who saw his performance evaluations drop after filing a discrimination claim;160 US Airways, Inc v Barnett161 involved an airline baggage handler with a back condition seeking job reassignment to the company mailroom;162 and Chevron USA, Inc v Echazabal163 ruled that a sixteen-year oil-refinery worker, who had been knowingly exposed to toxic chemicals as a temporary employee while receiv-ing good performance marks, was unqualified to be retained as a permanent employee by the same company because he tested pos-itive for hepatitis C and thus would be a danger to himself.164 The Court's inability to embrace the notion that disability in-volves impairment but that persons with disabilities can be capa-ble workers is most clearly seen in Toyota Motor Manufacturing, 154 527 US 471 (1999). 155 Id at 475-76 (noting that the employer terminated applicants' interviews after discovering they did not meet the employer's heightened standard of "uncorrected visual acuity of 20/100 or better" for pilots). 156 527 US 516 (1999). 157 527 US 555 (1999). 158 Murphy, 527 US at 520 (discussing how after being erroneously certified to drive commercially when hired, an employee was fired one month later on the employer's "belief" that the employee's blood pressure "exceeded the DOT's requirements"); Albertson's, 527 US at 560 (describing that an employee was fired for failing to meet the Department of Transportation's (DOT) vision requirements and not rehired despite employee obtaining a waiver from the DOT). 159 531 US 356 (2001). 160 Id at 362 (noting that a nurse was forced into taking a lower-paying position at the hospital and that a security guard's performance evaluations lowered after filing a claim with the EEOC). 161 535 US 391 (2002). 162 Id at 394 (describing how the worker was displaced from the job by another em-ployee through the employer's seniority-based employee bidding system). 163 536 US 73 (2002). 164 Id at 76 (stating that the employee suffered from hepatitis C, which the employer's doctors concluded would be exacerbated through continued employment). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 718 The University of Chicago Law Review [81:689 Kentucky, Inc v Williams.165 Ella Williams, who worked at Toyota's Kentucky car-manufacturing site, developed repetitive-stress disorders that restricted the amount of weight she could lift and the scope of activities in which she could engage. As a work-place accommodation, Toyota reassigned her to a "Quality Control Inspection Operations (QCIO)" team and limited her work to two of the four inspection functions, which allowed Williams to keep working.166 However, upon a change of management strategy Wil-liams became required, along with all other QCIO employees, to carry out all four standard functions, including the two she was physically unable to perform, and she was dismissed from em-ployment. 167 The Court ruled that Williams was not sufficiently disabled to merit disability status under the ADA. Although Wil-liams was substantially limited in a number of major life activi-ties, she was not sufficiently limited in her abilities.168 To merit ADA protection, the Justices reasoned, Williams would have to be restricted in a broader range of tasks-even though her impair-ments kept her from performing all the designated work func-tions. 169 In other words, Williams was not disabled enough to merit disability status, but was, according to the Court, too im-paired to work without a proven and effective accommodation.170 165 534 US 184, 201 (2002). 166 Id at 188-89 (noting that Williams was initially limited to "assembly paint" and "paint second inspection"). 167 Id at 188-90 (explaining that her duties expanded to include "shell body audit" and "ED surface repair"). 168 Id at 202: [H]er medical conditions caused her to avoid sweeping, to quit dancing, to occa-sionally seek help dressing, and to reduce how often she plays with her children, gardens, and drives long distances. . . . But these changes in her life did not amount to such severe restrictions in the activities that are of central importance to most people's daily lives that they establish a manual task disability as a matter of law. 169 Toyota Motor Manufacturing, Kentucky, 534 US at 202 (noting that Williams could still "brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laun-dry, and pick up around the house"). 170 For critical analyses of the Court's holding, see, for example, Lisa Eichhorn, The Chevron Two-Step and the Toyota Sidestep: Dancing around the EEOC's "Disability" Reg-ulations under the ADA, 39 Wake Forest L Rev 177, 200, 202 (2004) (suggesting the Court "sidestepped" EEOC regulations by giving itself "license to ignore applicable regulatory language and to substitute its own language to reflect the so-called plain meaning of stat-utory terms"); Aviam Soifer, Disabling the ADA: Essences, Better Angels, and Unprincipled Neutrality Claims, 44 Wm & Mary L Rev 1285, 1317 (2003) (stating that "[a]fter knocking down a strawperson . . . the Court used its selective smattering of dictionary definitions as sole support for a major logical leap"). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 719 The ADAAA clarifies that for purposes of remedying disabil-ity discrimination, disability is to be broadly construed and attrib-utions of disability should thus be afforded a wide scope. Part III explores the potential impact of the ADAAA and considers how to prevent reversion to a strict construal of disability. Part III will introduce our proposal, which is explored further in Part V, that in order to avert such retrogression courts' primary emphasis should be on the effectiveness of an accommodation rather than the disabilities or capabilities of the worker. III. THE ADAAA The ADAAA stipulation that disability is to be broadly con-strued, together with its explicit rejection of the Sutton and Wil-liams decisions, might seem to open statutory protections to a far broader range of plaintiffs. Indeed, initial indications are that ADAAA plaintiffs are more likely to survive motions for summary judgment based on the claim that they are insufficiently disabled to warrant statutory protection. However, if the only result is to shift judgments of qualifications from the determination of disa-bility to other aspects of the plaintiff's prima facie case-either the determination that the plaintiff is qualified with or without accommodation or the determination that the plaintiff suffered discrimination as a result of disability-the promise of the ADAAA may prove illusory. This Part presents some of the early case law under the ADAAA and explores whether there are early indications of backsliding. This Part will also foreshadow our ar-gument that the emphasis should be on the efficacy of accommo-dations rather than characteristics of the person with disabilities seen in abstraction from the circumstances of the job. This Part will also show why excluding persons who qualify under the re-garded- as prong from having a right to accommodation is poten-tially problematic. A. Construing Disability Expansively As of July 2013, federal appellate courts had not yet ruled in sufficient numbers for analysis of the construction of disability in cases arising after the ADAAA. Circuits that have dealt with the question are unanimous that the ADAAA does not apply retroac-tively. 171 A number of these cases also state explicitly that the 171 See generally, for example, Hetherington v Wal-Mart, Inc, 511 Fed Appx 909 (11th Cir 2013); Reynolds v American National Red Cross, 701 F3d 143 (4th Cir 2012); Wurzel v 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 720 The University of Chicago Law Review [81:689 ADAAA analysis of the construction of disability would differ from the earlier ADA analysis.172 Quite a few district courts have ruled on the construction of disability in post-ADAAA cases, however. In these cases, plain-tiffs have fared markedly better than pre-ADAAA plaintiffs on the determination of whether they met the initial requirement for a prima facie case, being a person with a disability under the terms of the statute. In the first six months of 2013, thirty-eight courts ruled on the issue of whether the plaintiff was a person with a disability under the ADAAA.173 In thirty-one of these cases, the plaintiff survived a motion for summary judgment or a motion to dismiss on the disability-status issue. Cases in which plaintiffs did not prevail on disability-status claims included a two-week episode of kidney stones,174 planned arthroscopic knee surgery with a recovery period of less than six months,175 a knee injury that resolved before the end of the plaintiff's FMLA leave,176 and mild Tourette's syndrome in which the plaintiff had asserted to the EEOC that he was completely functional.177 Several of these cases reflect the ADAAA provision178 that transitory and minor impairments-impairments with a duration of six months or less-do not come within the regarded-as prong of the disability definition.179 Others rest on the failure to assert facts about the plaintiff's condition with any specificity.180 Nevertheless, in still others there are clear echoes of the earlier congressionally re-jected181 Supreme Court holding182 that to satisfy the regarded-as Whirlpool Corp, 482 Fed Appx 1 (6th Cir 2012); Lander v ABF Freight System, 459 Fed Appx 89 (3d Cir 2012); Hodges v ISP Technologies, Inc, 427 Fed Appx 337 (5th Cir 2011). 172 Lander, 459 Fed Appx at 92; Reynolds, 701 F3d at 152; Wurzel, 482 Fed Appx at 10. 173 Data were compiled from a LEXIS search of "ADAAA and disability and employ-ment" and are on file with the author. 174 Clay v Campbell County Sheriff's Office, 2013 WL 3245153, *3 (WD Va). 175 Tramp v Associated Underwriters, Inc, 2013 WL 3071258, *6-7 (D Neb). The firm in this case was undergoing a reduction in force (RIF) because of continuing losses. The plaintiff claims that she was subject to the RIF because she was over sixty-five and the employer had realized that health premiums would be lower if she shifted from the em-ployer's plan to Medicare, which she had refused to do. Id at *1-3, 5. 176 Martinez v City of Weslaco Texas, 2013 WL 2951060, *9-10 (SD Tex). 177 McBride v Amer Technology, Inc, 2013 WL 2541595, *5 (WD Tex). 178 42 USC § 12102. 179 See, for example, Martinez, 2013 WL 2951060 at *9. 180 See, for example, Phelps v Balfour, Commemorative Brands Inc, 2013 WL 653542, *5-6 (WD Ky); Mecca v Florida Health Sciences Center, Inc, 2013 WL 136212, *2-3 (MD Fla). 181 42 USC § 12101(a)(4). 182 Sutton v United Air Lines, 527 US 471 (1999). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 721 prong plaintiffs must show the defendant regarded them as sub-stantially limited in a major life activity.183 Qualifying as a person with a disability is only the first, threshold step for plaintiffs in making the prima facie case of dis-crimination requisite to survive a motion for summary judgment. Nonetheless, it has been the critical stopping point for disability-discrimination plaintiffs, preventing them from presenting the re-mainder of their case. The other two elements of the plaintiff's prima facie case (in the absence of direct evidence of discrimina-tion) are that the plaintiff was qualified for the position, with or without accommodations, and that the plaintiff experienced the adverse action as a result of disability. These elements of the prima facie case may be more difficult to dismiss on motions for summary judgment, as they likely involve disputed claims about the facts.184 Plaintiffs surviving motions for summary judgment on the issue of disability may therefore obtain bargaining ad-vantages in litigation that were not present when their cases were routinely dismissed on the basis that they did not come within the definition of disability. On the other hand, there are some signals in the case law to date that the problematic picture of judicial ap-proaches to disability we have portrayed above may be shifting from the determination on summary judgment of disability to the determination on summary judgment of qualifications and causa-tion, the other elements of the plaintiff's prima facie case. B. Other Elements of the Plaintiff's Prima Facie Case Plaintiffs lacking direct evidence of discrimination must pre-sent a prima facie case under the ADA that includes not only ev-idence of disability, but also evidence that they were qualified for the position and that they were treated adversely on the basis of 183 See, for example, O'Donnell v Colonial Intermediate Unit 20, 2013 WL 1234813, *7, 18 (ED Pa): Thus, even under the "regarded as disabled" rubric, a plaintiff is still required to plead the existence of a substantial limitation on a major life activity, either because the employer mistakenly believed he had a nonexistent impairment that caused one, or because the employer believed an actual impairment caused one, when it in fact did not. Other courts construe the ADAAA in accord with Congress's intent. See, for example, Ki-niropoulos v Northampton County Child Welfare Service, 917 F Supp 2d 377, 385 (ED Pa 2013). 184 See, for example, Snider v United States Steel-Fairfield Works Medical Depart-ment, 2013 WL 1278973, *4 (ND Ala). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 722 The University of Chicago Law Review [81:689 disability.185 The burden then shifts to the defendant to produce evidence contesting one or more elements of the prima facie case, and then potentially back to the plaintiff to produce evidence that the defendant's assertions were pretextual.186 All along, the plain-tiff bears the burden of persuasion on all elements of the case.187 If the primary result of plaintiffs surviving motions for summary judgment on the question of disability is only that they lose on summary judgment on the other elements of the prima facie case, little will have been gained by the ADAAA reassertion of an ex-panded understanding of disability. There are some indications in the early case law that this could occur; if so, it may replicate the mistakes of the earlier jurisprudence in regard to a different element of the case. 1. Qualifications. In several cases, plaintiffs have prevailed on the determina-tion of disability only to lose on summary judgment on the deter-mination of whether they were qualified for the position sought. For example, in one of the few appellate cases decided under the ADAAA, the plaintiff did not survive summary judgment on the issue of qualifications. Jeffery Knutson was a Location General Manager of a depot for frozen food deliveries.188 The position de-scription required him to be Department of Transportation (DOT) certified to drive trucks weighing over ten thousand pounds. All parties agreed that his performance was excellent until he re-ceived a penetrating eye injury in 2008.189 After the injury, he was unable to obtain the required DOT medical clearance and was ul-timately dismissed. The trial court accepted, at the summary judgment stage, the employer's contention that the DOT certifi-cation was an essential function of the manager position because sales managers must drive trucks at times, even though Knutson presented evidence that he had continued to perform the position satisfactorily and that driving a ten-thousand-pound truck was rarely necessary for his position.190 The court also accepted at face 185 See Monette v Electronic Data Systems Corp, 90 F3d 1173, 1186 (6th Cir 1996). 186 Id. 187 Id at 1186-87. 188 Knutson v Schwan's Home Service, Inc, 711 F3d 911, 913 (8th Cir 2013). 189 Id. 190 Id at 914-15. It is worth noting that the EEOC has recently affirmed that it is the employer's prerogative to decide what are, and are not, essential functions of the job. Kevin P. McGowan, EEOC's Views on Accommodation under Amended ADA Discussed, Bulletin 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 723 value the employer's contention that it was not a reasonable ac-commodation to reassign these duties to other employees because the employer had defined DOT certification as an essential job function.191 The court concluded that the employer had engaged in the requisite interactive process regarding accommodations by telling plaintiff that he could either pass the DOT certification or seek reassignment to a vacant position if any were available.192 The appellate court affirmed these rulings by the district court. Cases such as this one, which credit rather than contest the em-ployer's definition of qualifications and essential job functions, continue the jurisprudential approach of cases such as Albert-son's193 that exclude work-capable individuals from positions in which they have performed and continue to perform well. Early empirical work on the ADAAA confirms that there is already an enhanced focus on qualification status and that it may indeed be functioning as a new way for courts to summarily dispense of cases before reaching the merits of alleged discrimination.194 2. Causation. An additional element of the plaintiff's prima facie case is ev-idence that any adverse action was taken on the basis of disabil-ity. In employment-discrimination cases without direct evidence of discrimination, the issue of what is required to demonstrate a nexus between membership in the protected class and discrimi-nation has been vexed. Some courts insisted on but-for causa-tion- a standard that is very difficult for plaintiffs to meet-while other courts insisted only on evidence that membership in the protected class was a relevant factor in the plaintiff's treatment.195 The difference is significant: in cases in which the plaintiff alleges to Management (Bloomberg BNA Jan 10, 2012), online at http://www.bna.com/eeocs-views -accommodation-n12884906922 (visited May 21, 2014). 191 Knutson, 711 F3d at 916. 192 Id. 193 Albertson's, 527 US 555. 194 See, for example, Stephen F. Befort, An Empirical Examination of Case Outcomes under the ADA Amendments Act, 70 Wash & Lee L Rev 2027, 2065-66 (2013), observing that at least two post-amendment court of appeals decisions have affirmed a grant of summary judgment for the employer based on the plaintiff's lack of ability to perform the essential functions of the job, even though the lower court rulings were based on a finding that the plaintiff was not disabled. The issue of disabil-ity, the basis for the district court's rulings, was not addressed by these appellate courts on appeal. 195 Pinkerton v Spellings, 529 F3d 513, 517-18 (5th Cir 2008). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 724 The University of Chicago Law Review [81:689 multiple bases for discrimination or in cases in which there is both credible evidence of discrimination and credible evidence of reasonable bases for adverse action (such as the plaintiff's perfor-mance or the employer's economic circumstances), plaintiffs will be unable to demonstrate but-for causation. Both causal language and remedies tied to a particular causal showing vary in the dif-ferent civil rights statutes, so it is difficult to draw inferences from one statute to another or predict when courts will do so. In Uni-versity of Texas Southwestern Medical Center v Nassar,196 a deci-sion handed down at the end of its 2013 term, the Supreme Court ruled that but-for causation is the requirement for claims of re-taliation under Title VII, in which the statutory language re-mains "because of" membership in the protected class.197 What the Nassar ruling will portend for the ADA is unknown. The ADAAA amended the statutory causation language in the antidiscrimina-tion section of the ADA to change "because of" disability198 to "on the basis of" disability.199 There is no "motivating factor" language in the ADA. As with Title VII, however, Congress left the "be-cause" causation language in the antiretaliation section of the ADA.200 Moreover, the remedy section of the ADA still incorpo-rates the remedy sections of Title VII by reference.201 In several post-ADAAA cases, courts have refused to grant motions for summary judgment for employers on the causation question.202 In others, courts, while apparently interpreting cau-sation broadly,203 have still granted summary judgment for de-fendants. For example, in Cody v Prairie Ethanol, LLC,204 the court, after concluding that Brice Cody had presented sufficient evidence to survive summary judgment on whether disability was a motivating factor in his treatment, immediately concluded that evidence of Cody's performance problems was sufficient to shift 196 133 S Ct 2517 (2013). 197 Id at 2534. Congress had specifically amended the antidiscrimination section of Title VII to provide that plaintiffs could prevail when they could show that discrimination was a motivating factor in the defendant's action. Civil Rights Act of 1991 § 107, Pub L No 102-166, 105 Stat 1071, 1075, codified at 42 USC § 2000e-2(m). Plaintiff's remedies in such cases are also limited if the employer could show that it would have taken the same action absent the plaintiff's membership in the protected class. 42 USC § 2000e-5(g)(2). 198 ADAAA § 5, 122 Stat at 3557, codified at 42 USC § 12112(a). 199 42 USC § 12112(a). 200 42 USC § 12203(a). 201 42 USC § 12117(a). 202 See, for example, Mercer v Arbor E & T, LLC, 2013 WL 164107, *14 (SD Tex). 203 See, for example, Cody v Prairie Ethanol, LLC, 2013 WL 3246109, *6 (D SD). 204 2013 WL 3246109 (D SD). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 725 the burden back to Cody to demonstrate that the employer's as-serted reasons were merely pretextual.205 Because Cody could not do this, his ADA claim was dismissed on summary judgment.206 The court reasoned that even though Cody had evidence that dis-crimination was a motivating factor, the burden shifted back to him to prove pretext when the employer advanced a legitimate reason for his termination. In so doing, the court effectively un-dercut Cody's ability to contest the extent to which discrimination had motivated his employer. Other cases at the district-court level similarly illustrate this concern. For example, a police officer trainee who had difficulty passing fitness tests due to a blood con-dition prevailed on summary judgment on the claim that he was actually disabled, but lost on the issues of whether he was quali-fied or whether lighter-duty assignments were a reasonable ac-commodation. 207 On the other hand, some cases are more encouraging from the perspective of placing the emphasis on the efficacy of accom-modations rather than on the employee's qualifications. For ex-ample, a night dispatcher at a county's emergency-dispatch cen-ter was experiencing health difficulties because of diabetes that affected his performance.208 His physician recommended regular sleep habits-not consistent with the night shift-as a way of ad-dressing these conditions.209 When the employee requested trans-fer to a (lower-paying) day shift as an accommodation, the em-ployer refused.210 The employer reasoned that because there were other methods for addressing plaintiff's condition-such as 205 Id at *8-9. 206 Id at *9-10. 207 Lapier v Prince George's County, Maryland, 2013 WL 497971, *3-4 (D Md). See also Banaszak v Ten Sixteen Recovery Network, 2013 WL 2623882, *5-6 (ED Mich) (in-volving a plaintiff fired because she didn't follow the employer's call-off procedure for ab-sences); Tate v Sam's East, Inc, 2013 WL 1320634, *12-13 (ED Tenn) (finding the em-ployer's legitimate nondiscriminatory reason for the job reassignment was "merely pretext for its true discriminatory intent"); Equal Employment Opportunity Commission v Product Fabricators, Inc, 2013 WL 1104731, *7-8 (D Minn) (concluding that the plaintiff would lose on causation and not reaching the issue of disability as a result); Goodman v YRC, Inc, 2013 WL 1180872, *11 (SD Ind) (concluding that an economically motivated reduction in force was a legitimate reason for termination). Against these cases there is really good discussion about the reasonableness of accommodations, in a case in which the plaintiff survived summary judgment on all elements of the prima facie case, Gregor v Polar Sem-iconductor, Inc, 2013 WL 588743, *4-5 (D Minn). 208 Szarawara v County of Montgomery, 2013 WL 3230691, *1 (ED Pa). 209 Id. 210 Id at *2. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 726 The University of Chicago Law Review [81:689 weight loss or exercise-a transfer was not a reasonable accom-modation. 211 The court denied defendant's motion for summary judgment. In so doing, the court refused to assume that the em-ployer's job description settled the question of what were essential job functions.212 The court also determined that the question to be resolved at trial was the effectiveness of the accommodation plaintiff had suggested in enabling him to perform the job and maintain his health.213 C. "Regarded As" Plaintiffs The case law also suggests the increased importance of the regarded-as prong for plaintiffs in surviving motions for summary judgment on the question of disability. For example, in Mengel v Reading Eagle Co,214 the plaintiff had partial hearing loss and bal-ance problems due to surgery for a brain tumor.215 Although the court concluded that under its ADAAA case law partial hearing loss in one ear was insufficient for a finding of actual disability, absent additional evidence of a substantial limit on a major life activity, the court also ruled that plaintiff could meet the re-garded- as standard for disability because the defendant was aware of her physical limitations.216 However, as described above, the plaintiff failed another aspect of the prima facie case, the es-tablishment that the adverse action was on the basis of her disa-bility. 217 The defendant-employer was undergoing a reduction in force, and the plaintiff received the lowest scores in her depart-ment despite her satisfactory employment ratings. The scoring system included work quality, versatility, interpersonal/team-work skills, productivity, disciplinary record, performance evalu-ations, and tenure with the company.218 It is plausible that Chris-tine Mengel would have fared better on an accommodated evaluation matrix, or that ratings on factors such as versatility could have been affected by accommodations in Mengel's work re-sponsibilities. However, these possibilities are precluded for a plaintiff qualifying as disabled only under the regarded-as prong. 211 Id at *4. 212 Szarawara, 2013 WL 3230691 at *3. 213 Id at *4. 214 2013 WL 1285477 (ED Pa). For similar cases, see generally Goodman, 2013 WL 1180872 (SD Ind); Kiniropoulos, 917 F Supp 2d 377. 215 Mengel, 2013 WL 1285477 at *1. 216 Id at *4. 217 Id. 218 Id at *1. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 727 As an illustration, other plaintiffs claiming actual disability have survived motions for summary judgment on their qualifications with accommodations, despite losing on summary judgment on regarded-as claims for accommodations.219 Similarly, Professor Stephen Befort's recent empirical work on the ADAAA shows that, despite the lowered threshold for "re-garded as" coverage, the prevalence of "regarded as" summary judgment determinations following the effective date of the ADAAA has not increased.220 He notes, as one explanatory possi-bility, "that post-amendment plaintiffs may be deterred from as-serting a prong three claim due to the need for a reasonable ac-commodation in order to be able to perform the essential functions of the job."221 Accordingly, the argument this Article develops below in re-gard to whether an employer should be obligated to make an ac-commodation focuses not on the eligibility of the individual, but on the effectiveness of the accommodation. Under this proposal, making the accommodation should be the default, though for the employer to be obligated to provide the accommodation there must be some element of the job for which the employee requires the accommodation (for example, having to stand to operate office equipment, or getting information over the phone), and the sug-gested accommodation must be effective.222 In sum, even after the hard-fought-for ADAAA, disability-discrimination jurisprudence may still fail to offer a progressive view of workplace accommodations, thus continuing to put at risk Congress's goal of keeping work-capable people working despite disability. At the conceptual level, the conflict between thinking of disabled people as work capable and as work incapacitated ap-pears to remain unresolved, with the recipe for the requisite bal-ancing yet to be mastered. Also, misreading the right to reasona-ble accommodation, as an entitlement of productivity-deficient people, may persist. Accommodation should not be thought of as compensation for suffering from disability. Accommodation rem-edies discrimination, whether advertent or unintentional, in workplace arrangements. Accommodation is warranted if disabil- 219 See, for example, Perdick v City of Allentown, 2013 WL 3231162, *3-4 (ED Pa). 220 Befort, 70 Wash & Lee L Rev at 2063 (cited in note 194). 221 Id. 222 See Part V. 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 728 The University of Chicago Law Review [81:689 ity bias in policies, practices, or the physical plant needlessly de-nies disabled people equality of opportunity in the workplace.223 Part IV discusses why conceptualizing workplace accommodation as a service or compensatory benefit for being disabled is prob-lematic. IV. COMPLEXITIES OF DISABILITY IDENTITY Connecting the appropriateness of offering accommodation to the degree of an individual's disability presupposes that the line that marks the necessary level of dysfunction is sufficiently bright to serve as a sustainable, steady, and objective standard.224 Only if this is so can an eligibility criterion for accommodation be ap-plied fairly and cost-effectively; it is neither fair nor justifiable to force claimants to prove their worthiness for accommodations if the standard for doing so is not sufficiently clear or reliable. Yet the extensive history of disability policy suggests that there is no reliably bright line. A. The Health-Services Model of Accommodation The dilemmas encountered by health-care and benefits pro-grams, which rely on there being an objective, fair, and cost-effec-tive standard of sufficiently severe disability, suggest that the possibility of such a steadfast standard is fatally flawed. The World Health Organization's (WHO) efforts to define disease and disability illustrate the problem. Very broadly, the WHO idea of disability is any restriction or lack (resulting from any impair-ment) of ability to perform an activity in the manner or with the ease considered normal for a human being.225 For the WHO, disa-bled people include those who are currently limited or who may 223 See generally Silvers, Wasserman, and Mahowald, Disability, Difference, Discrim-ination (cited in note 26). 224 See Areheart, 29 Yale L & Pol Rev at 374 (cited in note 108): Blindness, deafness, disordered eating, and intellectual impairments all repre-sent a range of qualities and/or abilities regarding certain aspects of the body. Who is blind, deaf, bulimic, or mentally retarded is thus a question of degree based on graduated differences. At some point on each continuum, a line must be drawn to effectuate the diagnosis. 225 See World Health Organization, World Report on Disability 4 (2011), online at http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf (visited May 21, 2014) (defining "disability" as an "umbrella term for impairments, activity limitations and participation restrictions"). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 729 be so limited in the future due to a current condition, such as a genetic predisposition to a disease.226 Trying to turn the meaning of disability into a criterion for the assignment of rights immediately initiates several debates that are difficult to resolve. One so deeply divisive as to be, per-haps, irresolvable arises from disagreement about differentiating pathological from normal manners of performing various activi-ties. From a cultural perspective, the ways in which daily life ac-tivities are performed vary from place to place and time to time. What counts as serious dysfunction at one time or in one place may thus be intransient, and be seen as only negligibly limiting in the future or in another locale.227 From a biological perspective, the definition of disability may make a life-stage difference such as infertility-the inability to reproduce-a disability by fiat. Yet whether infertility is a disability, rather than just a biological state of a minority of young adults and of a majority of small chil-dren and elders that is within the range of normality, is regularly disputed in the context of disagreements over whether such indi-viduals should be eligible for reproductive-technology services.228 The WHO approach to defining disability was the result of a lengthy process of attempting to attain global agreement to serve the practice of medicine's clinical needs, but the effort put into crafting a global standard for medical-services eligibility seems more like a stopgap than a solid solution. The WHO's Interna-tional Classification of Functioning, Disability and Health (ICF) originally was compiled, under the title of International Classifi-cation of Impairments, Disabilities, and Handicaps (ICIDH), as a complement to the WHO's International Classification of Dis-eases (ICD).229 Originating in something like its current form at the end of the nineteenth century, the ICD is a reporting system of morbidity and mortality causes for populations and diagnostic 226 Id at 7-8. 227 See, for example, Areheart, 29 Yale L & Pol Rev at 368 (cited in note 108) (explor-ing the transience of certain conditions, such as eating disorders, that "exist or have ex-isted only at certain times and in certain places"). 228 Shorge Sato, Note, A Little Bit Disabled: Infertility and the Americans with Disa-bilities Act, 5 NYU J Leg & Pub Pol 189, 190 (2001). 229 World Health Organization, International Classification of Impairments, Disabil-ities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease (1980; reprint 1993), online at http://whqlibdoc.who.int/publications/1980 /9241541261_eng.pdf (visited May 21, 2014). See also Resolution 54.21, International Clas-sification of Functioning, Disability and Health, Fifty-Fourth World Health Assembly (May 22, 2001), online at http://apps.who.int/gb/archive/pdf_files/WHA54/ea54r21.pdf (visited May 21, 2014) (adopting the second edition of the ICIDH and titling it as the ICF). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 730 The University of Chicago Law Review [81:689 groups.230 ICD revisions have been propelled by advances in med-ical knowledge, as well as by alterations in national and global health systems' clinical and policy-making needs. The ICIDH was initiated in 1980 to classify disabling health-related functional limitations, to serve as an instrument in the WHO's effort to measure the health of populations, as well as to systematize treat-ment planning and monitoring, goal setting, and outcomes assess-ment for preventative health and therapeutic policies around the globe.231 After a decade of trying to put the ICIDH into use in an era when disabled people were pursuing political liberation, the WHO undertook a revision that proved so contentious and complex that almost another decade passed before approval of the new classifi-cation scheme that became the current ICF.232 The ICF revises the definition of human limitations that constitute disabilities, and consequently alters the identification of humans functionally lim-ited by disabilities, by adopting a multivariant account of inter-secting biological and social factors.233 Consider how the instability of this global delineation of dis-ability is inimical to a reliable ADA-type program of righting the wrongs of disability discrimination. Individuals in the same bio-logical condition may be substantially limited or not, depending on a multiplicity of biological and social variables that affect func-tionality. As situations change, individuals whose deficits once counted as mere differences may be categorized as disabled, or the functional impact of deficits that previously assigned individ-uals to the disability category may recede. If the ADA were to de-termine disability status according to the global disability scheme, however, politics and changes in social norms might still impede effective disability classification. For example, an individ- 230 The ICD is currently in its tenth revision, with the eleventh scheduled for 2015. See World Health Organization, International Classification of Diseases (ICD) Information Sheet (World Health Organization), online at http://www.who.int/classifications/icd /factsheet/en/index.html (visited May 21, 2014). 231 WHO, International Classification of Impairments, Disabilities, and Handicaps at 1 (cited in note 229). See also World Health Organization, ICF Application Areas, online at http://www.who.int/classifications/icf/appareas/en/index.html (visited May 21, 2014). 232 See Resolution 54.21 (cited in note 229); Mary Crossley, The Disability Kaleido-scope, 74 Notre Dame L Rev 621, 646-47 (1999) (comparing and contrasting the first and second editions). 233 See WHO, World Report on Disability at 5 (cited in note 225) ("The ICF emphasizes environmental factors in creating disability, which is the main difference between this new classification and the previous [ICIDH]."). 05 STEIN_ART_FLIP (DO NOT DELETE) 6/11/2014 11:11 AM 2014] Accommodating Every Body 731 ual could be accommodated due to a medical condition that is clas-sified as a disability, and could work successfully for several years, but lose the accommodation and thereby the ability to exe-cute an essential function of the job, because new revisions to global health-care policy now deem people with the condition not disabled, but merely regarded as disabled. Alternatively, individ-uals with the same biological condition might initially be granted only the protection of the "regarded as" prong and thus denied accommodation, but subsequent global categorizations might be altered to label the condition as a disability. The revolutionary transition from ICIDH to ICF is by no means the sole instance of controversially changing medical cri-teria that affect the determination of who is disabled. Another well-known and influential product of this kind of process is the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5).234 This re-cent revision eliminates the independent identification of the con-figuration of symptoms previously diagnosed as Asperger's syn-drome, assigning the diagnosis based on these symptoms to the more general "autism spectrum" label.235 Some contend this change leaves high-functioning individuals without a diagnosis because autism is associated with serious functional deficit.236 Others predict that individuals previously diagnosed with Asper-ger's, but denied services because that condition is associated with the potential for high functioning, will become eligible for all services offered for autistic people.237 Similarly, a DSM-5 change 234 See Areheart, 29 Yale L & Pol Rev at 364-70 (cited in note 108) (exploring the DSM's role in creating diagnoses, including noting that "[t]he Diagnostic and Statistical Manual of Mental Disorders . . . provides a window into how the creation of diagnoses is both politically and economically dr