Impairment as Protected Status: A New Universality for Disability Rights

Georgia Law Review Georgia Law Review

Impairment as Protected Status: A New Universality for Disability Impairment as Protected Status: A New Universality for Disability

Rights Rights

IMPAIRMENT AS PROTECTED STATUS: A NEW UNIVERSALITY FOR DISABILITY RIGHTS

Michelle A. Travis*

On January 1, 2009, our civil rights landscape fundamentally changed as the list of protected statuses under federal employment January 1, 2009, is the discrimination law expanded by one. effective date of the ADA Amendments Act of 2008 (ADAAA),' which Congress enacted in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990 (ADA).2 As scholars have widely recognized, the ADAAA is designed to restore the class of individuals with disabilities to the breadth that Congress originally intended.3 What has gone unrecognized, however, is that the ADAAA did something far more significant: it extricated disability from the broader concept of impairment. As a result, January 1, 2009, also marks the date on which impairment took its place alongside race, religion, national origin, sex, age, and disability as a protected class under federal antidiscrimination law. By implicitly elevating impairment to protected class status, the ADAAA offers a profound yet still unrealized opportunity for reframing the existing disability rights debate around a new form of universality that could meaningfully advance the disability rights movement.

The ADAAA's new form of universality has the potential to provide a cohesive alternative to the two existing theories that often divide the disability rights community regarding the most effective form of civil rights legislation. Advocates on one side of this divide contend that disability should be recognized and

respected as a minority group status.4 While emphasizing that disability is not an inherent trait, these advocates highlight the distinct life experiences shared only by those individuals whose particular impairments produce significant functional limitations, widespread stigma, and pervasive social exclusion.5 These advocates argue that civil rights coverage should be limited only to identifiable and members of subordinated minority.6

this socially constructed but

Advocates on the other side of the divide argue that disability is better understood as a universal continuum that reflects infinite Supporters of the degrees of socially imposed limitation.' continuum approach question the ability to identify a discrete and insular minority, and they contend that any attempt to do so reinforces the notion of disability as an intrinsic personal deficita notion that both sides uniformly denounce.8 Under this "traditional" form of universalism, civil rights law would neither individual who distinguish nor exclude from coverage any experiences any form of impairment-based disadvantage. While those in favor of minority group treatment argue that the continuum approach ignores and disrespects the existence of a unique disability identity,9 traditional universalists believe that conceptualizing disability as a continuum is the only way to erase

the stigmatizing line that society has drawn between "us" and "them."'o

The ADAAA offers an alternative approach to disability civil rights coverage-an approach that has the potential to bridge the existing divide and thereby strengthen the disability rights as having implicitly movement. Understanding the ADAAA elevated alongside disability-rather than as having merely expanded the definition of disability-could reveal the statute as having combined the most compelling elements of both traditional universalism and of the minority group approach.

to protected class

status

the ADAAA

By granting legal protection for nearly all physical and mental impairments, recognizes the critical insight of traditional universalists about the importance of broad statutory coverage in reducing socio-legal backlash. Yet unlike the traditional universalist endeavor, the ADAAA does not erase the line between the disabled and the nondisabled-either as a matter of formal law or of public perception. To the contrary, the ADAAA embraces difference by distinguishing disability from impairment and by using that distinction as the dividing line between the affirmative right to workplace accommodations and the negative In this way, the right to be free from simple discrimination." ADAAA's new universality offers the opportunity to achieve the traditional universalist objective of expanding the group of workers who view themselves as ADA stakeholders, while at the same time acknowledging the respect for difference that plays such a central role in the minority group approach.

Unfortunately, the ADAAA's potential for charting such a new and unifying path for disability civil rights has largely gone unrecognized, in part because the primary drafters made the necessary strategic decision to frame the ADAAA as merely a restorative bill, rather than as an innovative piece of civil rights legislation. Until recently, the ADAAA's potential has also remained dormant in the courts because of the statute's non-

retroactivity,12 which has meant that pre-ADAAA law has continued to govern many cases long after the ADAAA's effective date. But now that enactment is behind us and the development of ADAAA case law has finally begun, it is time to render more for explicit the full opportunity advancing a disability civil rights agenda.

that the ADAAA presents

Part II begins by explaining more specifically how the ADAAA extricated disability from the broader concept of impairment and the status of an effectively bestowed upon It is this implicit elevation of independent protected class. impairment-as distinct from disability-that enables disability advocates to conceptualize a new universality that combines both broad-reaching coverage with respect for difference.

Part III examines the first component of the ADAAA's new universality: the nearly universal expansion of antidiscrimination protection to almost all physical and mental impairments. While applauding this development as a major success for traditional universalists, Part III also explores the realistic limits to true universal coverage. Because the ADAAA elevated impairment without providing any additional guidance on how to define the concept or prove its existence, judicial interpretations of the term will dictate how universal the ADAAA's coverage will really law and Part become. reveals how both an underadministrative guidance and theorization and an over-medicalization of impairment create a risk that judges may use the term as a legal hook to restrict the ADAAA's potential reach. Part III further examines the more fundamental critique of the legal approach to impairment raised by disability theorists' recent attempts to reveal impairment as a social construct altogether. While acknowledging the problems the hands of medical with vesting definitional control professionals, this analysis ultimately takes a pragmatic view about the role that disability advocates may play in policing judicial interpretations of impairment.

analyzes pre-ADAAA

case

III

Part IV examines the second component of the ADAAA's new universality: the respect for difference. At the same time that the

ADAAA greatly expanded its antidiscrimination coverage, it also clarified that the right to workplace accommodation exists only for a subset of individuals whose impairments meet a functionallimitations test.'3 Although the ADAAA expands this subset of individuals,14 it nevertheless retains a accommodation-eligible minority group approach when drawing the line between an accommodation mandate and simple antidiscrimination protection. traditional universalists could still claim victory by While the expanded antidiscrimination continuing protection as having codified a disability continuum, such a position misses the way in which the ADAAA also incorporates elements of the minority group approach. Part IV suggests that acknowledging the ADAAA's respect for difference might better serve the disability rights movement, not only by illuminating common ground with those who value recognition of a unique disability identity, but also by more successfully achieving the goals of traditional universalists themselves.

to characterize

While the ultimate goal of traditional universalists to dissolve the illusory line between the disabled and the nondisabled remains an important ideal, a wealth of social science research reveals deeply entrenched social, cognitive, and psychological barriers to widespread embrace of the notion that we all exist along a disability continuum.'5 Fully realizing the opportunity that the ADAAA's expanded coverage provides for broadening the ranks of ADA stakeholders will therefore require advocates to rethink the traditional notion of universality in a way that will resonate more deeply with the large group of workers with non-substantially limiting impairments who have yet to identify the ADA as personally relevant. Given the challenges facing the traditional universalist endeavor, even in a post-ADAAA world, Part IV suggests that society might achieve greater interest convergence instead by moving away characterizing the amended ADA as providing legal protection to both the disabled and the nondisabled workforce. In other words, Part IV urges traditional universalists to consider whether the

from the continuum concept and

disability rights movement may be better served by viewing the individuals with and without amended ADA as protecting to await a broad-based disabilities, rather than continuing enlightenment that the disability label really fits us all.

II. IMPAIRMENT AS PROTECTED STATUS

Referring to the "disability rights movement" as a single, uniform entity elides the reality of a pluralistic and fluid social endeavor with diverse adherents who have coalesced around different and sometimes conflicting goals.'6 That being said, the including movement does embrace some common objectives, integration, and achieving opposing paternalism, advancing individuals with disabilities.17 Movement independence for participants also widely agree on the importance of developing a social model of disability as a necessary step toward realizing these goals.'8

Theorists developed the social model of disability to replace the medical model, in which disability had been viewed as an intrinsic, in need of a cure.'9 individual deficit The social model reconceptualized disability as a social construct created by the interaction between a physical or mental characteristic and contingent aspects of our environment that restrict accessibility or limit functioning.20 Critical to the social model is the distinction

between impairment and disability.21 The social model views "impairment" as simply a description of one's physical or mental condition, which is not inherently limiting outside of the social context in which it exists.22 "Disability," in contrast, refers to the exclusion or limitations that are socially imposed "on top of one's impairment."23 The social model of disability is thus best described as a causal description of the source of disadvantage for individuals with impairments.24 The social model shifts causal responsibility away from an individual's impairment and onto the "architectural, social, and economic environment" that renders an impairment limiting.25

While many have invoked the social model's causal-attribution theory as a basis for making normative arguments about employers' obligations to modify the workplace, the social model of disability does not by itself produce any necessary policy prescriptions.26 Nor does the social model dictate the appropriate target group for civil rights laws aimed at dismantling the social exclusion that all activists agree exists.27 Consensus around the social model of disability has thus helped mask an important debate within the disability rights movement regarding two

different approaches to coverage under disability discrimination law.28

serious

socially

the most

As noted above, some advocates argue that although disability is not an inherent trait shared by a naturally distinct group of individuals, society has constructed an identifiable minority group whose impairments result in widespread stigma and exclusion.29 Under this minority group status approach, the law would protect (and direct resources toward) a distinct group of individuals whose imposed impairments produce limitations.30 Others argue that the social construction of disability-which recognizes that impairments and their social effects fall along a continuum for all individuals-not only renders arbitrary any definition of a discrete and insular minority, but also risks reinforcing the notion that disability is an intrinsic personal characteristic.3' Under this traditional universal approach, the law would recognize that we all possess or are at risk of possessing various impairments, and the law would neither distinguish nor exclude from protection anyone who experiences any form of impairment-based disadvantage.32 Both of these approaches to disability civil rights law-the minority group status approach and the traditional universal approach-are consistent with the social model of disability, which cannot by itself resolve the debate about which approach to prioritize within a disability rights agenda.33

Scholars disagree about exactly how the disability rights movement resolved this internal tension when lobbying for the original ADA, which extended disability discrimination protection The ADA's drafters into the private employment sector. incorporated a pre-existing definition from the Rehabilitation Act of 1973, which already had prohibited disability discrimination by certain federal agencies, federal contractors, and federally funded programs.34 The Rehabilitation Act had defined its protected class

include "any person who

to (A) has a physical or mental impairment which substantially limits one or more of such person's major life activities [the 'actual' disability prong], (B) has a record of such an impairment [the 'record of' prong], or (C) is regarded as having such an impairment [the 'regarded as' prong]."35 Some scholars have viewed the decision to adopt the Rehabilitation Act's definition as a conscious political choice to the minority group model.36 Others have argued advance persuasively that advocates not only intended the original ADA to incorporate a traditional universal approach but that advocates had every reason to believe that would be the result based on how broadly in prior Rehabilitation Act cases.37 In particular, advocates reasonably believed that the "regarded as" prong reflected the continuum notion and would protect against all forms of impairment-based discrimination.38

the definition

judges had

interpreted

Regardless of this dispute over original intent, disability scholars widely agree about the outcome of the ADA's original disability definition. Judges interpreted the ADA's disability definition much more narrowly than they had done with the same

language in the Rehabilitation Act, resulting in an increasingly restricted protected class under the ADA.39 Case law applying the inconsistent with a ADA's disability definition was clearly traditional universalist view of disability as an all-encompassing continuum.40 Yet despite the extensive criticism that has been levied against these narrow judicial interpretations,41 even the most maligned cases are arguably consistent with a minority group approach to disability law.42

The judicial tendency to view the ADA's disability definition through a minority group lens was particularly evident in cases applying the "regarded as" prong. Judges interpreted the ADA's "regarded as" prong consistent with a minority group approach to disability coverage in at least two distinct but related ways. First, courts required plaintiffs to prove not just that an employer regarded them as having an impairment but that an employer regarded them as having an impairment that substantially limited a major life activity.43 By incorporating a functional-limitations

are perceived

as having-significantly

test into "regarded as" claims, courts endorsed the notion that the ADA should only protect a discrete group of individuals who limiting have-or conditions. Courts further entrenched the minority group model by erecting a nearly insurmountable hurdle for plaintiffs who were seeking to meet the functional-limitations test by demonstrating a perceived limitation in the major life activity of working. In such their cases, courts required plaintiffs employer mistakenly regarded them not just as unfit for the particular job in question but as unable to work in a wide range or class of jobs.44 By refusing to allow an individual to sue for an employer's (often admitted) decision to reject the individual for a particular job because of a real or perceived impairment, courts effectively rejected a continuum notion of disability.45

to demonstrate

A second way in which many judges interpreted the ADA's "regarded as" definition through a minority group lens was by requiring proof that an employer's mistaken perception was the result of myths, fears, or stereotypes about disability.46 Many courts rejected "regarded as" claims against employers that had engaged in impairment-based decision making, as long as the

treatment of

the plaintiffs

real or perceived employer's impairment reflected a so-called "innocent mistake" about the impairment's effects or severity made during an individualized assessment.47 By limiting legal protection only to misperceptions implicitly grounded incorporated a stigma requirement into the "regarded as" prong. In doing so, these courts further endorsed a minority group to disability that covers only a narrow group of approach social individuals whose exclusion.

impairments produce widespread

in group-based biases,

these courts

Congress enacted the ADAAA in response to these and other narrow judicial interpretations of the ADA.48 The ADAAA codifies Congress's rejection of the minority group model that had

animated the judiciary's restrictive approach to "regarded as" coverage.49 Congress demonstrated this intent through several general provisions not specifically related to the "regarded as" removed one of the the ADAAA prong. Most notably, congressional findings from the ADA's original text that courts to support narrow interpretations of the often had invoked disability definition.50 That omitted finding had described individuals with disabilities as "a discrete and insular minority"a phrase that no longer appears in the statute.51 The ADAAA also added a construction rule that directs courts to interpret the ADA's disability definition "in favor of broad coverage."52

In addition to these general changes, the ADAAA specifically extricated the "regarded as" definition from its judicial tethers to the minority group approach. First, the ADAAA clarified that a "regarded as" plaintiff:need only prove that an employer made an adverse employment decision because of the plaintiffs real or perceived impairment-not that the employer also regarded the impairment as substantially limiting a major life activity.53 In other words, Congress clarified that the "regarded as" prong

contains no functional-limitations test.54 The ADAAA does exclude impairments that are both "transitory and minor," thereby omitting coverage for a small subset of conditions.55 Otherwise, the ADA's "regarded as" prong now protects against impairmentbased discrimination regardless of the real or perceived severity of one's physical or mental condition.56

the "regarded as" prong applies

Second, the ADAAA eliminated any inquiry into the motivation behind an employer's impairment-based decision. Under the to any adverse ADAAA, employment decision because of an individual's impairmentregardless of whether the decision was the result of "myths, fears, or stereotypes about disability."57 In other words, Congress the "regarded as" prong contains no stigma clarified that requirement. The ADA's "regarded as" prong now protects against impairment discrimination whether impairment-based produces widespread social exclusion or merely results in a single employer's idiosyncratic response.

Given this dramatic expansion of "regarded as" coverage-and the fact that the "regarded as" definition remains formally housed within the ADA's three-pronged disability definition-traditional universalists quite reasonably may assert victory by describing the ADAAA as having codified the continuum approach to disability. Yet at the same time that Congress expanded statutory coverage, it also divided the continuum into functionally distinct categories It did so by severing the ADA's with different legal rights.

reasonable accommodation mandate from "regarded as" claims.58 Under the ADAAA, only individuals who meet the functionallimitations test required to qualify as having either an "actual" disability or a "record of" a disability are entitled to reasonable accommodations to perform the essential functions of a job.59 This portion of the ADAAA resolved a split among federal courtS60 by the ADA's rejecting accommodation mandate to "regarded as" claims.61

that had

opinions

applied

prior

Through these changes,

resolved the tension traditional between universal approach to disability coverage in both a subtle and ingenious way.62 The ADAAA endorses nearly universal protection

the minority group approach and

the ADAAA

that an

the requirement

against simple discrimination under the "regarded as" prong.63 individuals against The "regarded as" prong now protects impairment-based decision making regardless of the real or In perceived severity or stigmatizing nature of the impairment." impairment contrast, by retaining substantially limits (or limited) a major life activity to obtain coverage under the "actual" (or "record of") disability prongs, the ADAAA endorses the minority group approach for those portions of the statute.65 Although the ADAAA added several significant provisions to ensure that the boundaries of that protected minority group will extend much farther than federal courts previously had permitted,66 Congress nevertheless identifiable to the basis for minority status as reasonable accommodations, which now attach solely to the "actual" and "record of" disability prongs.67 Only those individuals whose impairments at some point have produced significant functional limitations or social exclusion are deemed eligible for individuals with workplace impairments are now protected under basic antidiscrimination law.

retained an triggering entitlement

restructuring, while nearly all

By incorporating nearly universal antidiscrimination coverage under the "regarded as" prong and severing that prong from the accommodation mandate, the ADAAA has functionally codified the social model's foundational distinction between impairment and disability. Under the social model, impairment describes one's physical or mental condition, while disability identifies the socially

flow

from

limitations or

one's exclusion imposed impairment.68 Although the "regarded as" prong continues to be listed in the ADA as a third incarnation of disability,69 the postADAAA "regarded as" prong is really about impairment. The "regarded as" prong now prohibits employers from engaging in impairment-based decision making: other than proving a causal link between the impairment and the employer's decision, no showing of functional limitations, stigma, or widespread social exclusion is required.70 The "actual" and "record of" prongs, in contrast, continue to protect disability by requiring not just the existence of an impairment but proof that the impairment produces or has produced significant social effects. Thus, the ADAAA effectively has added impairment-as distinct from federal disability-to antidiscrimination protection.

receiving

statuses

list

of

history

legislative

The ADAAA's

reveals Congress's understanding of this crucial distinction between impairment and disability. The legislative history documents congressional intent for the "regarded as" prong to cover simply impairments-which require no functional-limitations assessment-and for the "actual" to protect the smaller category of and "record of" prongs disabilities, which require a finding of substantial limitation in a major life activity as a prerequisite for the right to accommodation. legislative history explains, for example, that The ADAAA's ''courts will have to address whether an impairment constitutes a disability under the first and second, but not the third, prong of

the definition of disability."7' According to the legislative Statement of the Managers, an individual who faces an adverse employment action because of a real or perceived impairment will be covered under the ADAAA's "regarded as" prong, regardless of "whether the impairment constitutes a disability."72 The legislative Statement explains that the decision to "retain[] the essential elements of the definition of disability including the key term 'substantially limits,'" reflects congressional reaffirmation "that not every individual with a physical or mental impairment is covered by the first prong of the definition of disability in the ADA."73 In contrast, the legislative Statement explains that "the third prong of the disability definition will apply to impairments, not only to disabilities."74

status

federal

antidiscrimination

The ADAAA's basic effect is thus quite profound. In our postADAAA world, impairment now stands alongside race, color, national origin, sex, religion, age, and disability as a legally law.75 protected Understanding the ADAAA as having elevated impairment to protected class status alongside disability-rather than as having merely expanded the definition of disability-has broad-reaching theoretical and strategic implications that remain unexplored. The remainder of this Article begins that endeavor by revealing how such an understanding could advance the disability rights movement by combining the most compelling elements of both traditional universalism's continuum model and of the minority group status approach.

The ADAAA's new universality incorporates one of the core statutory

traditional universalism:

expansive

elements of

limits

the potential benefits of characterizing

coverage. As explained above, the ADAAA's "regarded as" prong now provides basic antidiscrimination protection for almost all physical and mental impairments. Although Part IV below this major suggests development as having expanded coverage to protect individuals without disabilities-rather than as having expanded coverage further along a disability continuum-the ADAAA's expanded statutory coverage certainly represents a major success for traditional universalists. This Part explores

the realistic to true universal coverage, regardless of how that coverage is characterized. In identifying the limits to universality, commentators have focused primarily on the ADAAA's two explicit statutory exclusions.76 First, the ADAAA excludes impairments that are "transitory and minor" from protection under the "regarded as" prong.77 Second, by severing the reasonable accommodation mandate from the "regarded as" prong, the ADAAA excludes coverage for individuals with non-substantially limiting impairments who require an accommodation to perform the essential functions of a job.78 Commentators have not expressed major concern about these two explicit limits to universal coverage. They tend to believe that the "transitory and minor" exclusion will only preclude coverage of common, short-term ailments, such as sprained ankles and colds, which historically have not triggered stigma and employment exclusion.79 And they are hopeful that the law will cover most

individuals whose impairments require accommodations under the ADAAA's more broadly defined "actual" and "record of' disability prongs, to which the accommodation mandate still applies.80 While only time will tell whether these optimistic predictions will be accurate, focusing only on the two explicit statutory exclusions fails to recognize the most significant implicit limitation to true universality: the concept of impairment itself.

While the ADAAA greatly expanded the scope of the "regarded as" prong, it did not eliminate the defining status of having a real or perceived impairment. To the contrary, the ADAAA effectively elevated impairment to protected class status. True universality arguably would provide antidiscrimination protection for any physical or mental characteristic upon which an employer makes an irrational employment decision.8' Yet even the most prominent disability rights advocates with the strongest universalist agendas have not pressed for legal coverage to extend that far.82 They have

instead conceptualized impairment as a subset of all physiological traits.83 The size and shape of the impairment subset, however, has never been well-defined. But now that the ADAAA has successfully severed the judicial interpretational ties that had bound the "regarded as" prong to the minority group approach, the impairment concept likely will take center stage in policing the boundaries of statutory coverage.84

Because the ADAAA elevated impairment without providing any guidance on how to define the concept or prove its existence, judicial interpretations of the term will dictate how universal the ADAAA will really become. Section A therefore analyzes preADAAA case law and administrative guidance, which reveal both an under-theorization and an over-medicalization of impairment. For judges who were hostile to "regarded as" claims before the ADAAA--or more generally, who were committed to viewing disability law through a minority group lens-these aspects of the legal definition of impairment may provide fodder for limiting the the more statute's fundamental critique of the legal approach to impairment that is raised by disability theorists' recent efforts to uncover the socially constructed nature not just of disability but of impairment itself. While acknowledging the theoretical shortcomings of the legal approach, this analysis ultimately takes both a realistic view of the law's limitations and a pragmatic view of the role that disability advocates might play in policing judicial interpretations of impairment.

Section B explores

intended

reach.

Despite

its significance

in establishing the boundaries of statutory coverage, the term "impairment" is defined in neither the original ADA nor the ADAAA.85 The ADAAA's legislative history indicates that the regulatory definitions of impairment the Equal Employment Opportunity Commission issued by (EEOC) under the original ADA should continue to apply when courts interpret the new "regarded as" prong,86 which means that pre-ADAAA cases interpreting the term should continue to have precedential value. Before the ADAAA was enacted, however, courts paid little attention to the definition of impairment,87 in part because it became so easy to dismiss ADA claims for failing to meet the other stringent requirements for being "disabled" under the judicially narrowed definitions that became the impetus for enacting the ADAAA.88 The small set of pre-ADAAA cases that did address the impairment requirement likely will shift from being relatively peripheral to becoming critically important in defining "regarded as" coverage in post-ADAAA litigation. Unfortunately, those cases could assist judges who may seek to re-tether the "regarded as" prong to the minority group approach and to restrict the ADAAA's intended reach.89

As a starting point, the EEOC's original ADA regulations appeared to reflect the social model's understanding of impairment as biological fact rather than as social construct. Those original regulations defined a physical or mental impairment to include:

body

systems:

following

special sense organs,

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more neurological, of respiratory musculoskeletal, (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.90

the EEOC nevertheless made

the EEOC has acknowledged Congress's explicit Although expectation that this definition "'will not change'" under the several minor ADAAA,91 amendments to this original definition. While the EEOC has always viewed the list of body systems in subpart one as nonexhaustive, the EEOC inserted the words "such as" to make that view more explicit, while at the same time adding the immune and circulatory systems to the enumerated list to be more consistent with other parts of the statute.92 The EEOC also substituted term "mental "intellectual disability" retardation" in subpart two.93 Otherwise, the original regulatory the definition of impairment to EEOC's original supplementary guidance delineate the category's boundaries. That guidance explains that

remains unchanged,

the antiquated

that attempts

including

for

IMPARMENTAS PROTECTED STATUS

should

impairment definition

any physical the characteristics that fall within the "normal" range, as well as "common" personality traits, unless a physiological or psychological "disorder."94 The guidelines also cultural, or that are "[e]nvironmental, exclude conditions economic" in origin, rather than biologically based.95

exclude

result

from

they

for

future

source

becoming

The seemingly broad sweep of the regulatory definition reasonably convinced ADAAA advocates that there was little risk judicial of retrenchment.96 Yet a closer inspection of the details of the regulatory definition, along with the pre-ADAAA cases that have applied it, suggests some reason for concern. Imbedded in the definition of impairment are both an implicit requirement of biological etiology and an explicit requirement of abnormality or aberration. While early social modelists criticized the medical model of disability for stigmatizing individuals "by defining them as something less than normal,"97 the social modelists' own failure to confront the medical imprimatur of abnormality at the core of the regulatory definition of impairment opens the door for the very same critique.98

In the absence of either a theoretical account or a social understanding of impairment,99 judges responded in two general

In response

ways when interpreting the term in pre-ADAAA cases. In response to the definition's biological etiology component, judges to a medical model and relied heavily on formal resorted diagnoses.100 the definition's abnormality to component, judges resorted to a minority group approach statutory coverage and ratcheted up the impairment hurdle in a variety of ways.101 These predictable responses created a case law legacy that may allow future judges to invoke the impairment the intended universal reach of the to undermine concept ADAAA's new "regarded as" prong.

Judges' tendency not only to rely upon but to actually require a formal medical diagnosis to validate the existence of a contested impairment in pre-ADAAA cases reveals how deeply ingrained the medical model remains within the law.102 Even for plaintiffs who are able to bear the costs of pursuing medical validation, some will face the additional problem of having a physical or mental experience that medical professionals do not yet accept as "real"even if highly stigmatizing and functionally limiting-as was historically the case for individuals with chronic fatigue syndrome, multiple chemical sensitivity, and Gulf War Syndrome.03 More generally, diagnostic of even well-established impairments are simply "far less precise and far more uncertain and unreliable than most lawmakers might recognize."104 This is particularly the case for impairments that are not easily validated with objective measurements, such as disorders that depend upon

judgments

an individual's self-reports of pain05 or upon an individual's narrative description or self-characterization of his or her experience, as is required when diagnosing depression.106

In addition, judicial reliance on medical validation to prove the existence of an impairment ends up establishing the limits of medical causal knowledge as the outer limit of the ADA's "regarded as" prong. In some cases, even state-of-the-art diagnostic tools are unable to identify a particular biological cause of an individual's physical or mental condition. When facing such circumstances in pre-ADAAA cases, judges typically have held that the lack of a validated impairment precludes ADA coverage, even in the face of an undisputed causal connection between the plaintiffs physical or mental condition and an adverse employment action.

This has been illustrated most commonly in cases involving weight-based'07 and height-based employment discrimination.08 In such cases, many courts have refused to characterize a plaintiffs obesity or short stature as an impairment unless the plaintiff can produce medical evidence of a specific physiological cause, such as a malfunctioning thyroid or a growth hormone deficiency.'09 Not only does this force individuals to submit to

medical care and bear the cost of providing expert testimony,110 it also means that the law will not protect many individuals from explicit discrimination because doctors simply do not know the cause of most people's weight or height."'

In Middleton v. CSX Transportation, Inc., for example, the plaintiff alleged that a railroad transportation company refused to hire him as a freight conductor because he was morbidly obese.112 The district court granted the employer summary judgment on the plaintiffs ADA claim based on his failure to prove an actual or perceived impairment."13 Because the plaintiff "could not recall being informed of a precipitating physiological basis for his weight" and his treating physician expressed "no medical opinion as to any physiological basis for [the plaintiff's] obesity," the court held that the plaintiff failed to demonstrate that he had an impairment to establish protected class status."4 The Sixth Circuit used similar reasoning in Mehr v. Starwood Hotels & Resorts Worldwide, Inc. when affirming dismissal of the plaintiffs claim that her employer discriminated against her in job assignments and promotions because she was under five-feet tall."5 The lack of evidence of an identifiable physiological basis for the plaintiffs short stature rendered "futile" her ADA claim.116

In some cases, judges have shifted even further by equating the biological etiology component not just with proof of a physiological

cause but with proof of a physiological disorder. In pre-ADAAA cases involving pregnancy discrimination, for example, judges routinely have held that pregnancy is not an impairment because it is not the result of a physiological disorder but rather a normal bodily process.117 Although the regulatory definition of a physical impairment) impairment (unlike the definition of a mental purports to cover "[a]ny physiological disorder or condition,""is courts have read the latter term out of the definition altogether.119 While some judges have been willing to characterize medical complications arising from pregnancy as impairments (such as pregnancy-induced hypertension),120 that distinction inevitably renders medical professionals the final arbiters of the line between pregnancies that are "normal" versus "abnormal."'2'

Overall, these cases illustrate the explicit medicalization of impairment that has resulted from the regulatory definition's implicit requirement of biological etiology-along with the lack of theoretical, social, or political account of any alternative impairment to guide courts in a different direction. As noted above, the regulatory definition of impairment also contains a notion of abnormality or aberration,122 which presents a related

but distinct retrenchment risk: allowing the re-emergence of a In pre-ADAAA cases minority group approach to disability law. involving contested impairments, courts have translated the abnormality component in a variety of ways to restrict the boundaries of protected class status.

Cases involving physical or mental conditions that judges have deemed to be mere traits, characteristics, or attributes (which is itself a contestable determination) most clearly illustrate this point. In such cases, judges have required the plaintiff to prove that the particular expression of the trait or attribute in the plaintiffs body or mind is highly unusual or uncommon in order to be deemed an impairment.123 In Andrews v. Ohio, for example, the Sixth Circuit affirmed dismissal of ADA claims by police officers who had been disciplined for failing to meet their employer's weight and fitness standards.124 The court characterized the plaintiffs' claims as involving mere "physical characteristics" and held that such characteristics failed to qualify as either actual or perceived impairments because there was no evidence that they were "beyond a normal range."125 Judges frequently have used this reasoning as an additional basis for rejecting claims involving often blatant weight discrimination.126 Despite the fact that obesity is highly stigmatizedl27-and even if a particular plaintiff

can demonstrate a clear causal link between his or her obesity and a specific adverse employment action-many courts have refused to find an impairment because obesity is itself too widespread.128

This implicit use of a minority group lens for policing the boundaries of impairment may also have implications for future involving various forms of age-related deterioration.129 cases Because certain conditions become the norm rather than the exception for individuals who reach a certain age, the outcome of an uncommonality requirement will depend upon whether judges adopt an "age-relative" comparison group.30 Most people experience some level of hearing loss by the time they reach their mid-eighties, for example, which means that even hearing loss may not be deemed an impairment if judges assess commonality in an age-relative manner.11 Some of the pre-ADAAA pregnancy cases illustrate how easy it is for judges to manipulate the selection of a comparison group to restrict the definition of impairment. In those cases, judges refused to characterize even undesirable medical complications from pregnancy as impairments without proof that such complications were unusual and beyond the normal range relative to other pregnant women.132

impairments

For contested

judges cannot easily characterize as mere traits or attributes, judges have found alternative ways to apply the abnormality requirement to restrict the protected class. In particular, judges frequently have conflated the simple identification of a physiological disorder with the need to demonstrate a present experience of significant physiological effects.133 In other words, judges have blurred the concept of a physical or mental condition into an assessment of the condition's resulting limitations or a search for diminished capacity.134 Although the regulatory definition of a physical impairment requires merely a showing that one's condition "affect[s]" a body system,135 courts often have required a heightened showing of harm to one's body before making an impairment finding. As a result, these past cases may allow future judges to re-insert a functional-limitations test into the new "regarded as" prong through the back door left open by the abnormality requirement in the impairment definition. More generally, these cases illustrate the risk of impairment morphing back into disability altogether.136 Judges' tendency to improperly conflate the mere identification of an impairment with an assessment of an impairment's effects often showed up in pre-ADAAA opinions as unnecessary dicta attached to an otherwise proper assessment of disability, rather than an assessment of impairment itself. Specifically, judges often inadvertently raised the impairment threshold through the use of imprecise language while analyzing the distinct issue of whether a plaintiffs impairment substantially limits a major life activityeither to find an actual disability or to find a perceived disability under pre-ADAAA case law. In Rodriguez v. Loctite Puerto Rico, Inc., for example, a district court took judicial notice that the plaintiffs lupus "is a physiological disorder affecting certain body

actually

limiting

requires

In assessing

rules governing "regarded as" claims, however,

systems," thereby qualifying as an impairment.137 Under preADAAA the plaintiff also was required to prove that his employer regarded his lupus as substantially limiting a major life activity (a requirement that the ADAAA has since removed).38 the issue, the court incorrectly stated that substantial-limitations "[a]n illness cannot in and of itself be considered an impairment," andlor instead but ramifications."139 In Forrisi v. Bowen, the Fourth Circuit used the language when assessing whether similarly problematic life limited any major substantially plaintiffs acrophobia activities.140 "[T]he very concept of an impairment," stated the court, "implies a characteristic ... that poses for the particular individual a more general disadvantage."'4' Both courts' statements were unnecessary because both courts had already properly characterized the plaintiffs' conditions as impairments. Nevertheless, such statements lay the groundwork for the reemergence of a functional-limitations test in future "regarded as" claims as part of the impairment analysis, despite the ADAAA's explicit rejection of a substantial-limitations requirement for claims brought under the "regarded as" prong.

"symptoms

infection

is not an

impairment.

Older cases

involving HIV-related discrimination

further illustrate this risk. Those cases originally held that asymptomatic In Runnebaum v. HIV Nationsbank of Maryland, for example, the Fourth Circuit reached that conclusion based on a finding that asymptomatic HIV infection has not yet produced "diminishing effects" on an individual's body.142 The United States Supreme Court later held in Bragdon v. Abbott that asymptomatic HIV infection does indeed constitute an impairment,143 which will govern future HIV-related

cases. However, the Supreme Court reached its conclusion not by applying different reasoning, but rather based on different factual findings about the effects of HIV.144 Specifically, the Supreme Court cited medical evidence that HIV immediately damages an individual's blood cells and has "a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection."145 The Supreme Court did not question the propriety of erecting a "diminishing effects" test as an impairment hurdle but simply held that such a hurdle happens to be cleared by In doing so, the Supreme Court implicitly asymptomatic HIV. permitted a "nonlegal definition" to displace the formal legal definition of impairment.146 Rather than requiring a simple showing of any effect on the body, the Court endorsed the lay understanding of impairment as "having become worse, or weaker, or less valuable."147 Thus, even

longer hold precedential value with respect to HIV, courts may still invoke the reasoning in those cases as a way to "ratchet up the harm required for an impairment finding" when assessing other contested impairments in the future.'48 Dicta in the Runnebaum case may further assist courts in that endeavor. In Runnebaum, the court stated that the impairment label should not apply to any condition during an initial asymptomatic stage, even if that stage lasts "for an extended period of time."149 The Supreme Court may have provided more general support for the conflation of an impairment with its effects in a portion of Sutton v. United Air Lines, Inc. that In Sutton, the Supreme is unlikely to be affected by the ADAAA. Court stated that employers are free to make employment decisions based on preferences regarding "medical conditions that

though pre-Bradgon cases no

do not rise to the level of an impairment."o50 That statement suggests that the impairment determination incorporates some threshold level of gravity or seriousness, rather than merely requiring the identification of a physiological condition.

Overall, the pre-ADAAA regulations and case law thus leave room in a variety of ways for judges to use impairment as a retrenchment tool. To the extent that judges equate impairment with only significant, unusual, and medically recognized biological abnormalities, they may use the term to circumscribe the intended reach of the ADAAA's new "regarded as" prong. Yet beyond these specific legal critiques about the missteps that judges may take when interpreting the term impairment lies a more general argument that the legal approach to impairment represents a wrong turn altogether. This more fundamental critique stems from recent work by disability theorists who are beginning to demonstrate that impairment is as much a social construct as disability itself.

that an

is an objectively

Activists and scholars have been largely unconcerned about the retrenchment risk posed by "impairment," in part because of their identifiable belief physiological fact.51 Based on that assumption, the concept of impairment should be less manipulable than the various social components of disability (e.g., "substantial limitation" and "major life activities"), which had provided ready sources for judges to restrict the ADA's reach in a pre-ADAAA world. That assumption is understandable given that the social model is built upon the description-i.e., simple distinction "impairment"-and a complex social construct-i.e., "disability."152

between

bodily

Yet there is growing reason to question this underlying belief. Social modelists have always under-theorized impairment relative to disability,153 and disability theorists are now recognizing that impairments are more socially constructed than previously acknowledged.154

Defining impairment requires identifying the particular subset of all physical and mental traits that will be deemed abnormal. Traits become impairments only through social identification of ideal of human difference functioning and ability.155 Recent disability theorists have demonstrated that this social identification of difference is neither fixed nor universal but is both historically and culturally

from some established norm or

specific.156 Normalcy itself is contestable, socially relative, and changes over time.57

As an obvious basis for questioning the purportedly "clear line" that exists between "the socially constructed 'disability' and the preexistent and somatic 'impairment,"' disability theorists point to the "plethora of syndromes and conditions that have sprouted in the hearts and minds of physicians and patients."158 "[Flidgety children," for example, were not viewed as impaired until the advent of the attention deficit disorder label.159 Loss of height and hip fractures among the elderly used to be seen as "normal the diagnosable, byproducts of aging," but have now become preventable, and treatable disease of osteoporosis.60 Conversely, the medical establishment has resisted recognizing some conditions, such as chronic fatigue syndrome, multiple chemical sensitivity, and Gulf War Syndrome, as real "impairments," despite evidence that these conditions produce significant functional effects.26'

This translation of a trait or condition into an "impairment" can be affected by medical fads, technological innovation, financial interests, and other social phenomena.162 Scholars have

influenced

demonstrated, for example, how pharmaceutical companies that depend upon formal diagnoses for the prescription and purchase of the expansion of diagnostic their products have categories in the Diagnostic and Statistical Manual of Mental Disorders (the DSM).163 The expansion of diagnosable learning disabilities similarly has been fueled by economic interests, including the desire to expand access to federal funding.164 Even when the existence of a diagnostic label has gained general acceptance, the process of applying that label to a particular individual may itself involve cultural influences and financial incentives.165 Particularly when a diagnostic process relies upon subjective interpretation and interactional or self-assessment, as in the process -of diagnosing clinical depression, social norms inevitably play a role.166

Impairment is thus an unstable category.167 That instability, in turn, creates space for various stakeholders to step in and assert definitional control. The battles waged over whether to include such things as homosexuality, post-traumatic stress disorder, and gender identity disorder as diagnostic categories in the DSM168 provide glimpses of what can be at stake within this contested ground. These examples also highlight that defining abnormal can truly "value-neutral" or "'merely descriptive.' "169 never be Defining impairment inevitably carries prescriptive power.170

More generally, the existence of this contested ground has vested significant residual authority in the hands of medical professionals, whose diagnoses have taken on a preeminent role in defining impairment.171 As one disability theorist has explained, impairment-disability distinction demedicalizes "although the disability, it renders the impaired body the exclusive jurisdiction of medical interpretation."172 To the extent that " 'normality' and 'abnormality' are not delivered in an unmediated form by biology," but instead are affected by cultural, organizational, and economic interests and norms, the definition of impairment becomes a reflection of biomedical power.73 Yet the medicalization of this power by naturalizing and reifying impairment masks impairment as a biological essence,174 which is precisely what the social model of disability had intended to undermine by replacing the medical model.'75 If the same contested power structures that were the targets of the social model end up retaining the power to define the identity of the model's subjects-individuals with impairments-the social model inadvertently may extend those

original power relations.76 Thus, impairment is not just a social construct but a political one as well.

to under-theorize

Yet political considerations were exactly what motivated social impairment in the first place.'"

modelists Disability rights activists developed the social model of disability with the primary objective of creating a "shared political consciousness,"s78 which was a prerequisite for empowering to seek policy reform as an individuals with disabilities that disrupting the identifiable group. Activists understood connection between disability and illness and focusing on the common experience of social discrimination were essential to achieving that goal.179 Focusing too much on the impairment risked component of legitimizing the medical model's abdication of control to medical professionals and perpetuating assumptions about normality, abnormality, and the source of functional limitations'8s-i.e., it risked reinforcing the notion "that disability is really about physical limitation after all."'8' Thus, the social model's failure to provide a theoretical account of impairment was not an oversight but a thoughtful and deliberate strategy.182 Early social modelists wisely believed that deeply confronting the nature and contours of impairment risked limiting the model's effectiveness as a tool for political reform.'83

impairment/disability

dichotomy

As

also

result,

dichotomy

impairment/disability

is, paradoxically, not only the social model's most "transformative The insight," but impairment/disability distinction unified a movement through the model's core revelation that the cause of disability is society's reaction to an impairment rather than the impairment itself.185 Yet that success was achieved by consciously "gloss[ing] over medical impairments altogether."186

shortcoming."M

"its central

Now that disability theorists have moved forward and begun to "do social theory with impairment,"87 the legal approach to impairment becomes subject to a more fundamental critique than merely identifying misguided judicial tendencies to interpret the term too narrowly. Taken to the extreme, the recognition of the socially constructed nature of impairment risks collapsing the distinction between impairment and disability altogether, which risks undermining the social model itself.188 According to one disability theorist, "impairment has been disability all along."89 Yet at the same time that disability theorists are trying to "bring impairment and disability together as co-existing social and political facets of disablement,"190 the ADAAA has reinforced the impairment/disability dichotomy by establishing it as the line to between accommodation. To render the concepts distinct, the ADAAA has test for disability, while maintained a functional-limitations

antidiscrimination

protection

right

and

endorsing the judicial and administrative reliance on a medical construction of impairment.191 Modern disability theory implicitly raises the question of whether the impairment concept can successfully play the role envisioned by the ADAAA, while also incorporating a social and political understanding of the term. 192

Framing the question in this way highlights the very different contexts in which the impairment concept is expected to do work. While disability theorists want to focus attention on how and by whom impairment is defined in order to maintain a shared identity for individuals with disabilities without also ceding power to paternalistic others, the concept of impairment plays a much more concrete role in disability discrimination litigation.93 In functional terms, defining impairment defines the protected class of individuals who may invoke antidiscrimination protection under the ADAAA's "regarded as" prong. The practical and political demands that necessarily attach to such a legal definitionparticularly one that polices the boundaries of legal protectionlikely makes it impossible for the legal construction of impairment to fully reflect the insights of modern disability theory, at least under the existing ADAAA. In significant part, this is because it is difficult to take the social constructionist critique of impairment seriously without moving inexorably to the position that the ADA should protect all physical and mental characteristics upon which an employer renders a market-irrational decision. Yet even disability rights activists with the strongest universalist agendas have recognized the infeasibility of such a position.94 In addition, activists recognize the continued importance of the social model for framing policy debates and are likely to resist collapsing the

model's component parts and undermining its viability as a tool for ongoing reform.195

Certainly, it is important to acknowledge the risks that modern disability theory reveals about vesting legal definitional control of impairment in the hands of medical professionals. Because is a socially, culturally, and historically relative normality construct-and because abnormality inevitably carries prescriptive force-the medicalization of impairment within the law does have the potential to naturalize the concept as an inherently inferior identity.196 Requiring a plaintiff to obtain medical validation of an impairment requires the plaintiff to enter an unequal power from formal relationship and seek a professionals whose interests may not be aligned with advancing the plaintiff's social well-being.97

label of aberration

In addition, by divorcing impairment from notions of social exclusion and oppression,198 the legal definition necessarily becomes both over- and under-inclusive of the set of stigmatized physical and mental characteristics. The ADA's new "regarded as" prong will cover an individual with a non-stigmatized condition that medical professionals recognize as an impairment if the individual encounters an idiosyncratic employer with a singularly time, irrational response stigmatized physical or mental individuals with highly characteristics not deemed medical impairments will fall outside the ADA's protection, even if such characteristics exclude the

to that condition.199 At the same

individuals from a wide range of jobs. Professor Deborah L. Rhode's book, The Beauty Bias, documents that such "disabling stereotypes" exist for many physical characteristics that are associated with unattractiveness, including obesity.200 But even the most generous application of the ADAAA will not address such harms in the absence of a social and political understanding of what it means to be impaired.

On the other hand, recognizing that the concept of impairment is more socially constructed and therefore more malleable than previously acknowledged is not to say that the entire category is illusory or that all alleged impairments will present a contestable legal issue. While some social constructionists have attempted to describe the biological body as solely discursive in nature, the regulatory definition of impairment does usefully define a consistently and objectively identifiable core set of conditions that judges cannot read out of protected class status.201 Blindness, for deafness, and spinal cord example, certainly will meet the impairment definition, even if narrowly applied. Nonetheless, the insights of recent disability theorists, along with our pre-ADAAA case law legacy, suggest that the medical approach to impairment does leave greater contested ground with more significant stakes than previously realized.

injuries producing paralysis,

Addressing the social experience of discrimination that is at the heart of the social model of disability will therefore require continued vigilance of the judicial approach to impairment under the ADAAA. Although advocates of the traditional universal approach to disability believe judges will interpret impairment broadly enough to advance the movement's core goals,202 that assumption should not be taken for granted. Advocates should resist attempts to narrowly interpret the term by conflating the existence of an impairment with a demonstration of diminishing effects, by manipulating comparison groups when assessing abnormality, or by ratcheting up the demand for proving a specific

biological etiology of one's condition or disorder. More generally, advocates should make concerted efforts to educate judges about the ADAAA's intended expansion of "regarded as" coverage to nearly all impairment-based discrimination.

success

disability

is an undeniable

Regardless of the inevitable boundary skirmishes that will play out in future cases, the ADAAA's nearly universal expansion of for antidiscrimination protection traditional universalists who have long recognized the importance of broad statutory coverage in advancing disability civil rights. Because this expansion remains housed within the third prong of traditional universalists definition, the ADA's reasonably could assert victory not only in results, but also in means, by describing the ADAAA as having codified the concept of a disability continuum. This Article, however, resists that Instead, the Part IV suggests the potential compelling urge. benefits of highlighting the ADAAA's elevation of impairment alongside disability, and of characterizing the ADAAA as having expanded coverage to protect both individuals with and without disabilities. Part IV argues that the disability rights movement this new form of may have more to gain by articulating universality, which acknowledges the ways in which the ADAAA also has embraced core features of the minority group status approach.

impairments meet

At the same time that the ADAAA expanded impairment-based antidiscrimination protection, it also clarified that the right to workplace accommodation exists only for the subset of individuals test.203 a whose Although the ADAAA also expands this subset of accommodationeligible individuals,204 it nevertheless continues to rely upon a minority status to trigger the accommodation right. In doing so, the ADAAA acknowledges that there is something unique about the experiences of individuals whose impairments substantially

functional-limitations

life activities.

By restricting the limit one or more major accommodation mandate to members of that identifiable minority group, the ADAAA acknowledges, in particular, these individuals' to shared experience of confronting workplaces constructed systematically exclude them.

and

expanded

protection

The desire of traditional universalists to focus solely on the to antidiscrimination ADAAA's characterize the statute as having codified a disability continuum ignores the dividing line that the ADAAA has drawn between individuals with different types of impairments, and it thereby misses the way in which the ADAAA has also incorporated elements of the minority group approach. Although not without its own risks, acknowledging the ADAAA's respect for difference ultimately may have more to offer the disability rights movement, not only by illuminating common ground with those who value recognition of a unique disability identity but also in advancing the goals of traditional universalists themselves.

One major goal that traditional universalists have hoped to achieve by characterizing disability as a continuum is to broaden public commitment to disability rights and reduce the socio-legal .Before the ADAAA's backlash that has plagued the ADA. enactment, disability scholars had become increasingly concerned about the judicial and social backlash that was undermining the ADA's legitimacy as a core piece of civil rights legislation.205 Although the backlash was multifaceted, its public rhetoric and displays commonly relied upon an " 'us versus them' mentality" that viewed the ADA as benefiting a privileged few at the expense of everyone else.206 Given that most people believed both in the existence of a line between the disabled and the nondisabled and

that the ADA provided legal protection only for members of the former group, it was unsurprising that this mentality fueled public resentment against the ADA and its beneficiaries. The narrow judicial interpretations of ADA coverage (itself a form of backlash) became mutually reinforcing of the public's perceptions.207

Under the late Professor Derrick Bell's interest-convergence theory,208 such results were predictable.209 As Bell has described in the context of racial equality, the interests of a subordinated minority are likely to be advanced only when they converge with the interests of the dominant majority.210 This is not to say that the majority's self-interest should determine disability policy, nor is it to deny that equality and self-sufficiency for individuals with to justify the ADA.211 disabilities should Acknowledging the role that interest convergence can play in advancing disability rights merely suggests the practical benefits that may accrue by identifying the ADA's relevance to individuals who self-identify as nondisabled.212

itself be enough

Traditional universalists have always believed that interest convergence could be achieved by correcting the first component of the public's misunderstanding of disability that has fueled the "us versus them" response: the belief in a distinct line between the disabled and the nondisabled. At least with respect to simple

fact

antidiscrimination protection (as opposed to accommodation), traditional universalists have arguably succeeded as a matter of formal law, as the ADAAA's "regarded as" prong now prohibits nearly all forms of impairment-based discrimination.213 Yet the ADAAA's brilliantly negotiated despite codification of nearly universal impairment-based coverage far better reflects the continuum reality, it is doubtful that the mere existence of the new "regarded as" prong will increase public acceptance of the ADA. Although the new "regarded as" prong expands the ADA's protected class to include nearly all individuals with non-substantially limiting impairments, this formal legal expansion is unlikely to translate automatically into an expanded class of self-identified ADA stakeholders. As a threshold matter, the ADAAA's enactment failed to generate much media attention, which means that most people are likely unaware of the newly expanded "regarded as" prong. But even if awareness increases, the ADAAA's path may not necessarily lead to widespread embrace of the universal notion of disability as falling along a continuum for all individuals.

Embrace of traditional universality has always run up against the general public's notion that individuals with disabilities are seriously impaired in a way that renders them qualitatively distinguishable from nondisabled individuals.214 Early on, the social model itself became connected in operational terms with a particular subset of impairments-ones that are "physical, immutable, tangible[,] and severe."215 That reified disability identity has proven quite intractable. To some extent, this is "For persons gifted with strong, able bodies," fueled by fear. explains Professor Mary Crossley, "persons with disabilities may symbolize things dreaded: the vulnerability to aging, infirmity, and death and the inability to control one's body."216 The late Professor Harlan Hahn described this fear of someday being

stricken with a substantially limiting physical or mental condition as a form of "existential anxiety" that stereotypic notions of disability often trigger in those who enjoy the privileges that society bestows upon individuals with able bodies and minds.217

incapacity" or

to "limitation and

The desire to deny one's own vulnerability thus contributes to a desire to view individuals with disabilities not just as "other" but as others with whom many do not wish to identify.218 This is exacerbated because the lay concept of disability generally refers to "oppression and either exclusion"-neither of which provide easy ground for adopting a disabled identity or celebrating disability as a source of pride or community.219 As Professor Simi Linton has observed so astutely, because "the prefix dis connotes separation, taking apart, [or] sundering in two," the term disability itself "creates a barrier, cleaving in two ability and its absence."220 Thus, the mere fact that the ADAAA's expanded impairment-based protection remains the statutory formally, but uncomfortably, housed within definition of disability will make it difficult for many individuals with non-substantially limiting impairments to naturally view the ADA as personally applicable.

addition

these general barriers

effectively disseminating a belief in a disability continuum, social scientists have documented a specific cognitive phenomenon, referred to as the task of traditional the "optimistic bias," which makes universalists even tougher. The optimistic bias refers to people's

tendency to underestimate their own risks of negative events,221 their future health.222 People particularly when considering typically believe, for example, that they are less likely than their peers to experience heart attacks, heart disease, strokes, cancer, diabetes, arthritis, high blood pressure, alcoholism, drug addiction, car accidents, and other serious health conditions and threats.223

Not only are most individuals optimistic about their health risks relative to others, but many are also overly optimistic relative to their own personal risk factors.224 The optimistic bias exists across lines,225 all ages, sexes, education it is particularly strong when assessing high-risk although conditionS226 and when relatively high-risk individuals are making the assessment.227

levels, and occupational

is difficult

The optimistic bias

to correct and has been remarkably resilient in the face of debiasing strategies.228 Social scientists have been unable to reliably reduce the optimistic bias by providing individuals with base-rate information about health risks or even by providing customized personal risk data.229

People have developed a wide array of cognitive strategies to preserve their optimistic biases in the face of contrary evidence.230 We minimize, discount, distort, or ignore negative personal risk information.231 We pay selective attention to relevant risk factors, often by over-emphasizing our own preventive health behaviors relative to our own risky activities.232 And we regularly assess ourselves as "better than average" on risk-reducing characteristics and conduct.233 Social scientists have had some success in correcting the optimistic bias by providing subjects a combination of individualized risk assessments and other information, such as accurate data about the precautionary conduct of others,234 or by making either the causes or consequences of a health risk highly salient.235 But those types of interventions are particularly infeasible on a wide-scale basis outside of a laboratory setting.

Our highly resilient "illusion of invulnerability"236 combined with the general existential anxiety triggered by stereotypic notions of disability create a strong force pushing most individuals not only to resist taking on the disability label, but to deny that the label will ever apply to them. As a result, most individuals will refuse to see themselves as ever existing along a disability continuum where their conditions are not qualitatively distinct from impairments that result in significant social limitations.

Although this desire to erect a false boundary between the disabled and the nondisabled contributes to the stigmatization of disability, evidence suggests that individuals may personally benefit from their erroneous beliefs.237 Unrealistic optimism correlates with higher levels of happiness and perceived control, which are associated with more effective stress management and coping abilities.238 Unrealistic optimism can lower anxiety when individuals have little ability to control their risk for a negative health outcome,239 and it may help sustain precautionary behaviors when risks can be reduced.240 More generally, studies have found that individuals who rate high in "dispositional optimism" enjoy better physical health, have lower blood pressure, and exercise more than their peers, cope more effectively with and recover faster from illness, and typically are more satisfied with their lives.241

To the extent that the optimistic bias produces such individual benefits, it is likely to be that much more resistant to change. If

individuals benefit from being overly optimistic about their health, correcting their biases will produce personal hedonic costs and potentially less positive health results.242 That is not to say that such costs outweigh the gains that may be produced through widespread embrace of traditional universality, which would include normalizing and destigmatizing disability. Acknowledging the costs that would be felt by individuals who currently selfidentify as nondisabled if they corrected their optimistic biases themselves along a disability and more accurately perceived continuum simply highlights the difficulty of the traditional universalist endeavor.

Ironically, even though most individuals with non-substantially limiting impairments are unlikely to self-identify as disabled, they may be quite likely to identify as the victim of a legal wrong if their non-substantially limiting impairments result in adverse employment actions.243 Individuals with high blood pressure, for example, may resist seeing themselves along a continuum with individuals who are hearing-, sight-, or mobility-impaired, but they may easily view themselves as having been legally wronged if an employer refuses to hire them because of their high blood

pressure. Under the ADAAA's new "regarded as" prong, that view would now be accurate; yet few individuals in such circumstances likely would be able to identify the ADA as the source of their legal protection. If so, then traditional universalists not only will have failed in their core objective of erasing the line between the disabled and the nondisabled, but they also will have missed an enormous opportunity for expanding the group of self-perceived stakeholders in the ADA.

Thus, the impetus for reconceptualizing universality stems not from any fundamental disagreement with the insights or goals of traditional disability rights advocates who articulated universal notion of a disability continuum. Nor does it stem from fundamental disagreement with activists who have any characterized the post-ADAAA's "regarded as" prong as having large degree this original conception of codified It is difficult to disagree with the aspirational universality.244 notion that achieving widespread understanding of disability as a continuum would indeed advance the disability rights movement by erasing the line between the disabled and the nondisabled, which has contributed so significantly to the ADA backlash and the continued stigma that attaches to the social experience of disability.

to a very

The impetus for reconceptualizing universality is instead quite pragmatic. Intellectual and theoretical commitment to traditional universality should not preclude consideration of whether a less ideal strategy might realistically achieve more. Realistically, there are many reasons to predict that the public is unlikely to soon embrace the notion of a disability continuum, even in a postADAAA world. Despite the sustained efforts of traditional universalists, even legal scholars continue to describe disability as distinguishable from the universally possessed traits of race and sex.245 To the extent that this pessimistic outlook is accurate, it

raises the question of whether an alternative strategy might more effectively develop interest convergence and broader personal commitment to the ADA.

Specifically, disability rights advocates should consider the potential benefits of characterizing the post-ADAAA's "regarded as" prong as having codified antidiscrimination protection for individuals without disabilities. Rather than continuing only to pursue the ideal strategy of helping individuals understand that the ADA may protect them if they are ever "regarded as disabled," the group of ADA advocates stakeholders by helping individuals understand that "impairment" is now a protected status-alongside disability-and that virtually all of us are impaired in some way.246

should consider expanding

Explicitly characterizing the new "regarded as" prong as legal protection for individuals without disabilities is not without risks that may be too great for many members of the disability rights movement to seriously consider. All of the major criticisms of the minority group approach to disability247 may be levied by traditional universalists against this alternative approach as well. An approach that characterizes the ADA as covering individuals with and without disabilities may undermine the core objective of traditional universality, which is to erase the line between "them" and "us" that has been etched so deeply in public thought. Critics may fear that such an approach may reinforce the salience of the disability label rather than diminishing it.

In the face of these significant threats to the traditional universalist endeavor, what does a new universality have to offer? to Most significantly, demonstrate the ADA's personal relevance to the large group of individuals with non-substantially limiting impairments. This

it may offer a more

realistic way

trying

focused primarily on

opportunity exists to the extent that two erroneous beliefs fuel the ADA backlash: that a bright line exists between the disabled and the nondisabled and that the ADA only protects individuals on the former side of the line. For good reason, traditional universalists former have misperception. But the ADAAA now offers an alternative educational campaign for advancing interest convergence, quelling the group of self-perceived ADA backlash, and expanding stakeholders: trying to correct the latter misperception instead. Specifically, the ADAAA presents the opportunity for advocates to consider whether correcting the erroneous belief that the ADA only covers individuals on the disabled side of the line should now take priority over trying to correct the erroneous belief in the existence of a line in the first place.

to correct

While

interest convergence

individuals who view

likely would be strongest by line with a more accurate replacing the disabled/nondisabled disability continuum,248 interest convergence might also be themselves as achieved by getting nondisabled to understand that they have more in common than previously recognized with individuals whom they perceive as being on the other side of the line. Although perhaps not ideal, it may be more realistic to focus less on convincing individuals to abandon their belief in the illusory disabled/nondisabled line and instead to focus more on convincing individuals that we are all at risk for experiencing irrational and unfair employment decision making and that the ADA now protects us all.

This alternative approach

to universality differs from the minority group approach in that it highlights the inclusive legal protection of those in the majority rather than trying to defend their exclusion. Nevertheless, conceptualizing the ADAAA as protecting individuals with and without disabilities shares with the minority group approach a respect for the unique, lived experiences of individuals who confront a society designed to

them.249 As Professor Carol Gill has systematically exclude explained, a continuum notion of disability -"trivializes the experience of us who must face the cold facts of marginalization while it ignores the value of our different experience."250 Linton has agreed: "I am not willing or interested in erasing the line between disabled and nondisabled people," she explains, "as long as disabled people are devalued and discriminated against, and as long as naming the category serves to call attention to that treatment."251

Some individuals who self-identify as disabled also have objected to the traditional notion of universality because a continuum fails to recognize the important role that claiming a disability identity may play for individual self-empowerment, community development, and political collective action.252 Simply put, "identity matters to people who are stigmatized and stereotyped because they belong to a socially disfavored group."253 The fact that impairments fall along a spectrum likely has made disability identity even more significant given that "selfidentification as a person with a disability is often a long, complex,

and difficult process."254 Thus, a potential benefit of a new universality that describes the ADAAA as protecting individuals with and without disabilities-in contrast to the continuum approach of traditional universality-is that it would neither require individuals who self-identify as nondisabled to embrace a disability label, nor would it require individuals who self-identify as disabled to dilute or devalue their experiences. Yet unlike the minority group approach to disability, which attempts to defend legal protection solely for members of the minority group, a new approach to universality would focus instead on the inclusive antidiscrimination protection that the ADAAA now provides for members of the majority group as well.

Certainly, such an approach would appear at odds with the core insight of traditional universalists that embracing a disability continuum has the potential to dissolve the artificial line between "us" and "them." Yet group differentiation does not necessarily divide and oppress,255 nor does erasing category lines necessarily unite and destigmatize as traditional universalists have always hoped and predicted.256 A continuum notion of disability will mark a path out of marginalization for individuals with disabilities only to the extent that it engenders acceptance of difference.257 individuals with disabilities as an Conversely, identifiable group will produce marginalization only to the extent In some that devaluation accompanies circumstances, recognizing difference can provide "'a starting point for relatedness.' "258

recognition.

recognizing

such

as

Thus,

viewing

for both

the ADA

As Gill has described, an "ideal world" would both acknowledge and respect difference.259 While the traditional universalist embrace of a disability continuum may be one path to that ideal result, it may not be the only one. Any method that helps us "conceptualize disabled and nondisabled people as integral, complementary parts of a whole universe" could move us forward.260 providing individuals with and antidiscrimination protection without disabilities could unite rather than divide if such an approach helps deepen our understanding of "the relationship of one to the other, and of both to the social structures in which they the to it helps draw function"-i.e., "complementarity and interdependence of parts to wholes."261 reflect

this interdependence of individuals with and without disabilities in ways that are more explicit yet similarly in need of greater public awareness.262 the traditional universalist concept of a disability continuum to a very large degree, the amendments continue to acknowledge that at any given time there will be individuals who do not meet any of the three statutory definitions of disability-"actual," "record of," or "regarded as"-and whom the ADAAA therefore describes as "individual[s] without a disability."263 While it is tempting to

the ADAAA has codified

our attention

the ADA

provisions

already

though

Other

Even

of

if

equate the ADA's three-pronged disability definition with the boundaries of statutory coverage, the ADA has always provided certain forms of legal protection to these nondisabled individuals.

Two major examples are the ADA's association and antiretaliation provisions. The ADA's association provision prohibits employers from discriminating against an individual without a disability because of his or her relationship with someone who is disabled.264 Recognizing the variety of ways in which the lives of individuals with and without disabilities are intertwined, courts and the EEOC have applied the ADA's association provision to a wide range of social and business relationships, including spouses, partners, family members, friends, coworkers, caregivers, and others.265 The ADA's anti-retaliation provision prohibits employers from retaliating against individuals without disabilities for opposing conduct that violates the ADA, participating in an investigation or proceeding, or aiding or encouraging ADA individuals with disabilities in the exercise of their own statutory rights.266 While the ADA's anti-retaliation provision often protects individuals without disabilities who report or protest perceived discrimination against a coworker,267 it also protects them from third-party retaliation when a friend or family member asserts his or her own ADA rights, even if the nondisabled individual has not engaged in any protected activity.268

Before the ADAAA, individuals covered by the ADA's "regarded individuals with referred as" prong disabilities. This made sense both as a formal statutory matter, given that the ADA listed the "regarded as" prong as the third

typically were

to as

definition of disability, and as a practical matter, given the narrow judicial construction of "regarded as" coverage.269 However, now that the ADAAA has expanded the "regarded as" prong to cover nearly all impairment-based discrimination, we may now describe the "regarded as" prong as a form of legal protection for individuals without disabilities-alongside the ADA's association and anti-retaliation provisions, rather than alongside the ADA's Like the ADA's "actual" and "record of" disability prongs. association and anti-retaliation provisions, claims under the new "regarded as" prong will not require the plaintiff to demonstrate any level of functional limitation,270 nor will they entitle the plaintiff to workplace accommodations.271

that scholars frequently make between

This semantic realignment may also bring greater force to the the ADA's analogy "regarded as" prong and Title VII's antidiscrimination protection for other protected statuses, such as race, sex, and ethnicity.272 Under the new "regarded as" prong, as under Title VII, negative treatment based on a personal characteristic deemed irrelevant to legal employment decision making protection273 but is generally insufficient to trigger a right to accommodation.274 Yet advocates of the social model of disability do not argue that people who are discriminated against because of their skin color "are by virtue of that fact disabled, nor do they Individuals who argue that racism is a form of disability."275

is sufficient

trigger

experience race-based discrimination typically do not describe themselves as having a socially constructed disability, nor is that description likely to fit comfortably for most individuals with nonsubstantially limiting impairments who experience impairmentbased discrimination. Thus, the analogy between the ADA's "regarded as" prong and Title VII appears more compelling when viewed from the opposite direction. Rather than viewing the ADA's "regarded as" prong as addressing a form of disability discrimination and understanding other forms of discrimination as similarly socially disabling, the analogy obtains greater force by the ADA's "regarded as" prong as having placed viewing impairment on par with race, sex, national origin, and other characteristics protected by other civil rights laws.276

A more explicit decoupling of impairment from disability may also reduce the risk of judicial retrenchment as described in Part III.A. Understanding the new "regarded as" prong as providing antidiscrimination protection for individuals without disabilities may help judges resist re-tethering the "regarded as" prong to a minority group model, which inevitably places judges in the role of boundary police.277 Thus, rethinking the traditional notion of universality may not only provide an opportunity for advancing the goals of the disability rights movement, but also may help protect the formal gains that traditional universalists have fought so hard to obtain.

V. CONCLUSION

The ADA Amendments Act of 2008 has the potential to mark a profound step forward for disability civil rights. Thus far, however, most analysis of the ADAAA's potential impact has focused on the Act's restoration of the ADA's "actual" and "record of' disability prongs, which the amendments direct courts to

interpret broadly.278 Although plaintiffs seeking coverage under the "actual" or "record of' prongs will still need to demonstrate a current or past impairment that substantially limits or limited a major life activity, the ADAAA should greatly ease that burden by the substantial-limitations hurdle,279 expanding the lowering definition of major life activities,280 and no longer assessing a plaintiffs functioning with reference to mitigating measures.281 If those changes have their desired effect, it should become easier for plaintiffs to obtain protected class status by demonstrating an "actual" or "record of' disability, thereby shifting judicial focus to what was always intended to be the ADA's central feature: reasonable accommodations.282 But if that shift occurs, it does not necessarily mean that the "regarded as" prong will have a less important role to play. It does mean, however, that advocates

should begin thinking critically about how the disability rights movement might most effectively leverage the ADAAA's new "regarded as" prong.

By necessity, pre-ADAAA analysis of the "regarded as" prong typically focused on strategies for using "regarded as" claims to protect individuals with disabilities whom the "actual" and "record of" prongs should have covered, but whom federal courts excluded from such coverage with their increasingly narrow interpretations. Because advocates turned to the "regarded as" prong as a potential back-up route for individuals with disabilities whom judges had carved out of the ADA's core protected class, much of the preADAAA scholarship focused in particular on trying to apply the accommodation mandate to "regarded as" claims. Now that the ADAAA has restored the intended reach of the ADA's "actual" and "record of" prongs and clarified that "regarded as" coverage does not trigger entitlement to accommodations, advocates are free to think more broadly about the potential role that the "regarded as" prong may play in advancing a disability rights agenda.

forms of

Traditional universalists have always kept that broader focus in mind, and we should celebrate their success in shifting the "regarded as" prong much closer to the ideal of universal coverage. In our post-ADAAA world, the "regarded as" prong now protects impairment-based individuals against nearly all discrimination, regardless of the real or perceived severity or stigmatizing nature of the impairment. In so doing, the ADAAA to our list of protected effectively has elevated impairment statuses under federal antidiscrimination law, alongside race, age, and disability. color, national origin, Nevertheless, realizing the full potential of this legal development will not occur automatically. Advocates will need to police these formal gains in federal courts by resisting any efforts to re-tether the new "regarded as" prong to a minority group model or to otherwise restrict its intended reach.

religion,

sex,

But in addition to remaining vigilant about the ADAAA's future within the federal courts, advocates also should think strategically about the larger opportunity that the ADAAA presents for ideals of the broadening public commitment disability rights movement. The new "regarded as" prong provides

to the central

a tremendous opportunity to educate the public about our shared interest in the ADA's goal of eradicating impairment-based discrimination in the workplace. And while we may still be a long way from erasing the line between individuals with and without disabilities, the new "regarded as" prong may at least provide the opportunity for building bridges across the divide.

--- FOOTNOTES ---

Volume 46Number 4

Article 4

Michelle A. Travis University of San Francisco School of Law

Part of the Civil Rights and Discrimination Commons, and the Disability Law Commons

This Table of Contents is brought to you for free and open access by Digital Commons @ University of Georgia School of Law.

TABLE OF CONTENTS

I.

INTRODUCTION

...............................

.......938

II.

IMPAIRMENT AS PROTECTED STATUS..........

...........943

III.

LEARNING FROM THE CONTINUUM APPROACH: NEW UNIVERSALITY'S (NEARLY) UNIVERSAL REACH .... A.

IMPAIRMENT AS RETRENCHMENT RISK: A CRITIQUE OF EARLY CASE LAW IMPAIRMENT AS SOCIAL CONSTRUCT: A CRITIQUE FROM EVOLVING DISABILITY THEORY...

...........................

...............

B.

......955

IV.

LEARNING FROM THE MINORITY GROUP APPROACH: NEW UNIVERSALITY'S EMBRACE OF DIFFERENCE .......

.......981

V.

CONCLUSION.

.................................

......999

Professor, University of San Francisco School of Law.

I thank Bradley Areheart, Tristin Green, Nicole Porter, and Naomi Schoenbaum for their valuable comments, Jessica Simmons and Alexandria Walden for their research assistance, and Richard Dickson for his support. This Article also benefited from feedback at the Fifth Annual Colloquium on Current Scholarship in Labor and Employment Law hosted by Washington University in St. Louis School of Law and St. Louis University School of Law.

I. INTRODUCTION

1 Pub. L. No. 110-325, 122 Stat. 3553 (2008) (codified at 29 U.S.C. § 705, 42 U.S.C.

§§ 12101-12213 (Supp. II 2008, Supp. III 2009 .

2 Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified as amended at 42 U.S.C. §§ 1210112213 (2006 ; see ADAAA § 2(b) (stating that Congress's purpose was to overturn specific Supreme Court decisions).

3 See, e.g., Cheryl L. Anderson, Ideological Dissonance, Disability Backlash, and the ADA Amendments Act, 55 WAYNE L. REV. 1267, 1270 (2009) (noting that the ADAAA's legislative history documents Congress's intent to "restor[e] the ADA to what it was originally intended to be"); Jeffrey Douglas Jones, Enfeebling the ADA- The ADA Amendments Act of 2008, 62 OKLA. L. REV. 667, 668 (2010) (stating that the ADAAA's "express goal" was to restore the scope of the ADA's original disability definition). See generally Chai R. Feldblum, Kevin Barry & Emily A. Benfer, The ADA Amendments Act of 2008, 13 TEX. J. C.L. & C.R. 187 (2008) (detailing the advocacy efforts resulting in the ADAAA's restoration of the ADA's original scope).

4 See SAMUEL R. BAGENSTOS, LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT 20-21 (2009) (describing the minority group approach to disability); Kevin Barry, Toward Universalism: What the ADA Amendments Act of 2008 Can and Can't Do for Disability Rights, 31 BERKELEY J. EMP. & LAB. L. 203, 213 (2010) ("According to the minority group approach, people who are 'disabled' by society are a finite, identifiable group ....").

5 See BAGENSTOS, supra note 4, at 20-21 (describing the view that "society has created a distinct (though not naturally distinct) minority group of people with disabilities" (emphasis in original .

6 Id. at 21. 7 Id. at 7-8, 20-21; Barry, supra note 4, at 217; see also Robert L. Burgdorf Jr., "Substantially Limited" Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 VILL. L. REV. 409, 519-22 (1997) (summarizing evidence that all aspects of human ability lie along a spectrum); Susan Stefan, "Discredited" and "Discreditable" The Search for Political Identity by People with Psychiatric Diagnoses, 44 WM. & MARY L. REV. 1341, 1342 (2003) (arguing that "impairments exist along a spectrum, both physical and functional").

8 See BAGENSTOS, supra note 4, at 7-8, 21. 9 See infra notes 250-54 and accompanying text.

10 See BAGENSTOS, supra note 4, at 7-8 (explaining the view that a minority group approach "entrenches the erroneous social view that there is a fundamental difference between people who have disabilities and people who do not").

11 See infra notes 58-70 and accompanying text.

12 See Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir. 2010) (stating

that "Congress did not provide for retroactive application in the amendments").

1s See infra notes 58-70 and accompanying text. 14 See infra notes 279-81 and accompanying text. 1s See infra notes 215-42 and accompanying text.

16 BAGENSTOS, supra note 4, at 3-4. 17 Id. at 4; JOSEPH P. SHAPIRO, No PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL

RIGHTS MOVEMENT 52, 144 (1993).

18 See BAGENSTOS, supra note 4, at 13 (describing "the endorsement of a social rather than a medical model of disability" as "the one position that approaches consensus within the movement"); see also Vlad Perju, Impairment, Discrimination, and the Legal Construction of Disability in the European Union and the United States, 44 CORNELL INT'L L.J. 279, 281 (2011) (arguing that the social model obtained international consensus in the 2007 United Nations Convention on the Rights of Persons with Disabilities).

19 BAGENSTOS, supra note 4, at 18; Barry, supra note 4, at 210-12; Tom Shakespeare, The Social Model of Disability, in THE DISABILITY STUDIES READER 266, 268 (Lennard J. Davis ed., 3d ed. 2010); Shelley Tremain, On the Government of Disability, 27 Soc. THEORY & PRAc. 617, 620, 630 (2001) [hereinafter Tremain, Government of Disability]; Shelley Tremain, On the Subject of Impairment, in DIsABILITYIPOSTMODERNITY: EMBODYING DISABILITY THEORY 32, 41 (Mairian Corker & Tom Shakespeare eds., 2002) [hereinafter Tremain, Impairment); see also Mary Crossley, The Disability Kaleidoscope, 74 NOTRE DAME L. REV. 621, 649-53 (1999) (describing the medical model and its societal effects).

20 BAGENSTOS, supra note 4, at 18; see Crossley, supra note 19, at 654-55 (explaining that

"the social model of disability sees disadvantages as flowing from social systems and structures"); Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 BERKELEY J. EMP. & LAB. L. 91, 100 (2000) (describing the social model's understanding that "actual limitations that flow from an individual's physical or mental impairment often result from the manner in which society itself is structured"); Shakespeare, supra note 19, at 268 (explaining that the social model views disability as "a relationship between people with impairment and a disabling society").

21 Shakespeare, supra note 19, at 268; see also Bradley A. Areheart, Disability Trouble, 29 YALE L. & POL'Y REV. 347, 351 (2011) (describing the impairment/disability dichotomy as "the linchpin for a social model"); Tremain, Government of Disability, supra note 19, at 620 (describing the social model's distinction between impairment and disability as "two terms of reference, which are taken to be mutually exclusive").

22 MICHAEL OLIVER, UNDERSTANDING DISABILITY: FROM THEORY TO PRACTICE 35 (1996);

Shakespeare, supra note 19, at 268; Tremain, Government of Disability, supra note 19, at 620.

23 Tremain, Government of Disability, supra note 19, at 620. 24 Adam M. Samaha, What Good Is the Social Model of Disability?, 74 U. CHI. L. REV.

1251, 1251, 1255 (2007).

25 Id. at 1255. 26 Id. at 1252-53, 1275. 27 See BAGENSTOS, supra note 4, at 20-21 (explaining that the social model can support

either a minority group approach or a universal approach to legal coverage).

28 Id. at 7, 20. 29 Id. at 20-21. 30 Id. at 21; Barry, supra note 4, at 213-17. 31 BAGENSTOS, supra note 4, at 7-8, 21; Barry, supra note 4, at 217-18. 32 BAGENSTOS, supra note 4, at 7-8, 21. 33 Id. at 20. 3 Pub. L. No. 93-112, § 7(6), 87 Stat. 355, 361; see also Feldblum, supra note 20, at 92 (explaining that the ADA's disability definition came "directly from" the Rehabilitation Act);

Michelle A. Travis, Leveling the Playing Field or Stacking the Deck? The "Unfair Advantage" Critique of Perceived Disability Claims, 78 N.C. L. REV. 901, 908-09 (2000) (detailing the Rehabilitation Act's coverage and the ADA's extension into the private sector).

35 Pub. L. No. 93-516, 88 Stat. 1617, 1619 (1974). 36 See, e.g., BAGENSTOS, supra note 4, at 44 (arguing that "disability rights advocates subordinated [the] universalist notion to the ... minority-group arguments in the campaign to enact the ADA").

37 Barry, supra note 4, at 240; Feldblum, supra note 20, at 129; see also Michael Ashley Stein, Foreword: Disability and Identity, 44 WM. & MARY L. REv. 907, 914-15 (2003) (describing the ADA drafters' "deliberate and conscious choice" to adopt the Rehabilitation Act's disability definition because prior courts had interpreted that definition broadly). Congress itself acknowledged this original expectation when enacting the ADAAA. See ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(a)(3), 122 Stat. 3553, 3553 (describing Congress's expectation that the ADA's disability definition "would be interpreted consistently with how courts had applied the [same] definition ... under the Rehabilitation Act").

38 Barry, supra note 4, at 230-31; see also Feldblum et al., supra note 3, at 225 ("[I1t was. ..expected during passage of the ADA that a person with any type of impairment, even a minor one, would be covered under the ['regarded as'] prong. ..."); Feldblum, supra note 20, at 92, 158-60 (explaining that the ADA drafters adopted the Rehabilitation Act's disability definition believing that the third prong would "capture any individual who had been discriminated against because of any impairment" (emphasis in original .

39 See ADAAA § 2(a)(3) (noting Congress's unfulfilled expectation that courts would interpret the ADA's disability definition consistently with the same definition in the Rehabilitation Act); Barry, supra note 4, at 245-51 (discussing Supreme Court decisions that restricted the disability definition under the ADA); Feldblum, supra note 20, at 139-59 (identifying the interpretational methods that federal courts used to restrict the disability definition under the ADA).

40 BAGENSTOS, supra note 4, at 44. 41 See, e.g., Steven S. Locke, The Incredible Shrinking Protected Class: Redefining the Scope of Disability under the Americans with Disabilities Act, 68 U. COLO. L. REV. 107, 109 (1997) (arguing that the ADA's disability definition "has become increasingly narrowed to the point where it is in danger of becoming ineffective"); Bonnie Poitras Tucker, The Supreme Court's Definition of Disability Under the ADA- A Return to the Dark Ages, 52 ALA. L. REV. 321, 321 (2000) (arguing that the Supreme Court "drastically curtailed" the ADA's protected class); see also BAGENSTOS, supra note 4, at 5 (noting that commentators "have been harshly critical of the Supreme Court decisions that have narrowly read the ADA's definition of 'disability' ").

42 BAGENSTOS, supra note 4, at 5; see also Burgdorf, supra note 7, at 569 (describing judges' narrow interpretations of the ADA's disability definition as consistent with a "protected-class approach"); Feldblum, supra note 20, at 161 (arguing that the Supreme Court's narrow interpretations of the ADA's disability definition "rest[ed] on the premise that anti-discrimination protection is necessary and appropriate for a limited group of individuals").

43 E.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999); see also Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, 103 Nw. U. L. REV. COLLOQUY 217, 223 (2008) (describing how pre-ADAAA cases linked the "regarded as" prong to the actual disability definition by requiring proof that "the defendant regarded the [plaintiff] as having ... an impairment

that substantially limits a major life activity").

44 See, e.g., Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999) ("[To be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job."); Sutton, 527 U.S. at 491 ("When the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.").

45 See BAGENSTOS, supra note 4, at 37-38 (analyzing cases alleging substantial limitation in the major life activity of working as consistent with a minority approach); Samuel R. Bagenstos, Subordination, Stigma, and "Disability," 86 VA. L. REV. 397, 513 (2000) (describing the Supreme Court's "restrictive interpretation of substantial limitation in working" as having prioritized a "truly disabled" approach over a stigma-based approach (internal quotation marks omitted ; Barry, supra note 4, at 247-49 (describing cases requiring plaintiffs to prove that their employers perceived them as unable to perform a broad class of jobs as largely foreclosing coverage under the 'regarded as' prong," but "mak[ing] sense in light of the minority group approach"); Burgdorf, supra note 7, at 439-69 (explaining how courts undermined the universal intent of the "regarded as" prong by requiring plaintiffs to show that their employers perceived them as unable to perform a broad class of jobs).

4 See, e.g., Wright v. Ill. Dep't of Corr., 204 F.3d 727, 732 (7th Cir. 2000) (denying plaintiffs "regarded as" claim for failure to show that the employer's conduct reflected any disability-based myths, fears, or stereotypes); Muller v. Auto. Club of So. Cal., 897 F. Supp. 1289, 1297 (S.D. Cal. 1995) (same).

47 See, e.g., Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995) (rejecting "regarded as" claim because the employer's perception of plaintiffs impairment was based on misinterpretation of a doctor's note rather than "upon speculation, stereotype, or myth"); Barber v. Pepsi-Cola Pers., Inc., 78 F. Supp. 2d 683, 691-92 (W.D. Mich. 1999) (rejecting "regarded as" claim because "a person with a shoulder injury does not suffer from perception of disability based on myth, fear, or stereotype'); Rondon v. Wal-Mart, Inc., No. C-97-0369 MMC, 1998 WL 730843, at *6 (N.D. Cal. Oct. 8, 1998) (rejecting "regarded as" claim because "[b]ack strains are generally not the subject of 'myth, fear, or stereotype' "); Collins v. Yellow Freight Sys., Inc., 942 F. Supp. 449, 453 (W.D. Mo. 1996) (rejecting "regarded as" claim because the employer's perception of plaintiffs impairment was based on misinterpretation of a doctor's evaluation rather than on negative attitudes, misperceptions, or myths about disability); Howard v. Navistar Int'l Transp. Corp., 904 F. Supp. 922, 930-31 (E.D. Wis. 1995) (rejecting "regarded as" claim because plaintiff "failed to produce any evidence of the existence of invidious stereotypes against individuals with tennis elbow").

The term "innocent mistake" comes from two Third Circuit cases: Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 182-83 (3d Cir. 1999) (distinguishing misperceptions based on "negligence or malice" from those based on "an employer's innocent mistake (which may be a function of 'goofs' or miscommunications)"), and Deane v. Pocono Medical Center, 142 F.3d 138, 144 (3d Cir. 1998) (en banc) (distinguishing misperceptions based on "myths, fears, stereotypes, and prejudices" from "an innocent misperception based on nothing more than a simple mistake of fact as to the severity, or even the very existence, of an individual's impairment"). See also Michelle A. Travis, Perceived Disabilities, Social Cognition, and "Innocent Mistakes," 55 VAND. L. REV. 481, 500-01 (2002) (distinguishing between "regarded as" claims based on motivational, group-based misperceptions and those based on cognitive processing errors during individualized assessments). The Third Circuit joined a minority of courts holding that the ADA's "regarded as" prong should cover all forms of misperception. See Taylor, 177 F.3d at 182 (holding that an innocent mistake may support liability under the "regarded as" prong); Deane, 142 F.3d at 144 (same); Travis, supra, at 501-06 (discussing the circuit split).

48 See Pub. L. No. 110-325, § 2(b)(2)5), 122 Stat. 3553, 3554 (stating Congress's purpose

to overturn specific Supreme Court decisions).

49 See Barry, supra note 4, at 251-75 (detailing the negotiations and drafts leading to the

ADAAA).

6o See ADAAA § 3(2) (striking the "discrete and insular minority" language from the congressional findings in 42 U.S.C. § 12101(a)(7 ; Statement of the Managers to Accompany S. 3406, the Americans With Disabilities Act Amendments Act of 2008, 154 CONG. REc. 18,516, 18,517 (2008) [hereinafter Statement of the Managers] (inserted into the record by Sen. Tom Harkin) (explaining that the ADAAA deletes the "discrete and insular minority" finding, which had "led the Supreme Court to unduly restrict the meaning and application of the definition of disability").

51 ADAAA § 3(2). 52 Id. § 4(a) (codified in 42 U.S.C. § 12102(4)(A) (Supp. III 2009 . 53 Id.; see also Statement of the Managers, supra note 50, at 18,520 (explaining that a "regarded as" plaintiff need only establish "an action prohibited under the [ADA] because of an actual or perceived physical or mental impairment"); H.R. REP. No. 110-730, pt. 1, at 1213 (2008) (explaining Congress's intent to undo judicial incorporation of the substantial limitations test into "regarded as" claims); 154 CONG. REc. 13,765 (2008) (joint statement of "allow[s] Reps. Steny Hoyer and Jim Sensenbrenner) (explaining that the ADAAA individuals to establish coverage under the 'regarded as' prong ... without having to establish the covered entity's beliefs concerning the severity of the impairment"); EEOC Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 76 Fed. Reg. 16,978, 16,981, 16,985, 17,000-02, 17,008, 17,014 (Mar. 25, 2011) (codified at 29 C.F.R. pt. 1630) [hereinafter EEOC Regulations] (amending 29 C.F.R. § 1630.2(j) & (1) and 29 C.F.R. app. § 1630.2(j) & (1) to clarify that an impairment's actual or perceived limitations are irrelevant to "regarded as" claims).

54 See Statement of the Managers, supra note 50, at 18,520 ("The functional limitation imposed by an impairment is irrelevant to the third 'regarded as' prong."); 154 CONG. REC. 18,527 (2008) (statement of Sen. Orrin Hatch) (describing the ADAAA's removal of a functional-limitations requirement from "regarded as" claims); EEOC Regulations, 76 Fed. Reg. at 17,014 (amending 29 C.F.R. app. § 1630.2(1) to state that "an individual is not subject to any functional test" in "regarded as" claims).

55 ADAAA § 4(a) (defining a "transitory impairment" as having "an actual or expected

duration of 6 months or less").

56 See Long, supra note 43, at 224 (describing the ADAAA's return to impairment-based antidiscrimination protection). limited to individuals who are qualified for the job and who are not subject to any statutory defenses. EEOC Regulations, 76 Fed. Reg. at 16,984 (amending 29 C.F.R. § 1630.2(1 .

Of course, statutory protection remains

57 EEOC Regulations, 76 Fed. Reg. at 17,015 (amending 29 C.F.R. app. § 1630.2(1 ; see also Travis, supra note 47, at 550-52 (arguing that the "regarded as" prong should apply even when employers' misperceptions do not result from myths, fears, or stereotypes about disability).

58 ADAAA § 6(a)(1); see also Statement of the Managers, supra note 50, at 18,519 (explaining that the ADAAA does not require accommodations "when an individual qualifies for coverage ... solely by being 'regarded as' having a disability"); EEOC Regulations, 76 Fed. Reg. at 16,986, 17,002 (adding 29 C.F.R. §§ 1630.2(o)(4), 1630.9(e) and amending 29 C.F.R. app. § 1630.2(o) to clarify that employers need not accommodate individuals who qualify for coverage solely under the "regarded as" prong).

as ADAAA § 6(a)(1). -o See Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why "No" Should Not Be the Answer, 36 SETON HALL L. REv. 895, 896-97 (2006) (noting the federal court split); Travis, supra note 34, at 921-33 (analyzing the federal court split).

61 See, e.g., Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir. 1996) (applying accommodation mandate to "regarded as" claim); Matczak v. Frankford Candy & Chocolate Co., 950 F. Supp. 693, 697 (E.D. Pa. 1997) (same), rev'd in part on other grounds, 136 F.3d 933 (3d Cir. 1997); Pinkerton v. City of Tampa, 981 F. Supp. 1455, 1457 (M.D. Fla. 1997) (same); Muller v. Hotsy Corp., 917 F. Supp. 1389, 1412-13 (N.D. Iowa 1996) (same); Spath v. Berry Plastics Corp., 900 F. Supp. 893, 903-04 (N.D. Ohio 1995) (same); Stradley v. Lafourche Comm., Inc., 869 F. Supp. 442, 444-45 (E.D. La. 1994) (same). The ADAAA endorses the view of courts that had held "regarded as" plaintiffs ineligible for workplace accommodations. See, e.g., Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1233 (9th Cir. 2003) (holding that employer has no duty to accommodate under the "regarded as" prong); Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999) (same).

While commentators have described application of the accommodation mandate to "regarded as" claims as "pro-employee," (e.g., Rosenthal, supra note 60, at 906), that approach likely had the opposite effect on ADA coverage. Granting "regarded as" plaintiffs the right to accommodation likely contributed to the judicial desire to cabin the reach of the "regarded as" prong and to apply a minority group lens to ensure that only the truly deserving could levy such demands upon their employers. See BAGENSTOS, supra note 4, at 47 (explaining that when a law is viewed as "provid[ing] special protections," it pushes judges to "guard the boundaries of [the protected] class to assure that those who are undeserving do not partake of those benefits").

62 See Barry, supra note 4, at 278 (arguing that "the ADAAA brings coherence to a definition of disability in tension" by expanding "regarded as" coverage while restricting the

accommodation mandate to the first two prongs).

63 Id. F, A few ways remain in which "regarded as" coverage is both under- and over-inclusive of all impairment-based discrimination. On one hand, the ADAAA excludes coverage of impairments that are transitory and minor, and the ADAAA still requires employees to be qualified for the job and fall outside of various statutory defenses. See supra notes 55-56 and accompanying text. On the other hand, the ADAAA covers perceived impairments, even if an employee possesses no impairment at all. ADAAA, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555 (2008); see also EEOC Regulations, 76 Fed. Reg. 16,978, 17,000 (Mar. 25, 2011) (amending 29 C.F.R. § 1630.2(g . As a result, references throughout this Article to impairments and to impairment-based discrimination under the ADAAA are intended to encompass both actual and perceived impairments.

65 Barry, supra note 4, at 280. 66 See infra notes 279-82 and accompanying text. 67 ADAAA § 6(a).

68 See supra notes 21-23 and accompanying text. 69 42 U.S.C. § 12102(1)(C) (Supp. III 2009). 70 One could argue that a single employer's impairment-based decision

is itself a sufficient socially imposed limitation to render the impairment a "disability" within the See Barry, supra note 4, at 281 (describing the understanding of the social model. "regarded as" prong as codifying the view that "[a]ny adverse treatment" based on one's impairment "disables"); Samaha, supra note 24, at 1261 (explaining that in an extreme version of the social model, disability includes "all the things that impose restrictions" upon individuals with impairments). But that view falls outside of mainstream social model theory and effectively would erase the line between impairment and disability that is so critical to the model's existence. See Samaha, supra note 24, at 1264-65 (critiquing extreme versions of the social model for failing to grapple with the "dimensions and severity of disadvantage" required to transform an impairment into a disability).

III. LEARNING FROM THE CONTINUUM APPROACH: NEW UNIVERSALITY'S (NEARLY) UNIVERSAL REACH

71 Statement of the Managers, supra note 50, at 18,520 (emphasis added). 72 Id. at 18,519 (emphasis added). 73 Id. at 18,517. 74 Id. at 18,519 (emphasis added). 75 See Barry, supra note 4, at 219-20 (explaining that "the universal approach neatly aligns impairments ... with race, sex, religion and other prohibited characteristics for purposes of civil rights protection").

76 See, e.g., id. at 278 (noting that the "two caveats" to universal coverage under the "regarded as" prong are the lack of an accommodation right and the exclusion of transitory and minor impairments); Stephen F. Befort, Let's Try This Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the 'Regarded As" Prong of the Statutory Definition of Disability, 2010 UTAH L. REV. 993, 1022-28 (analyzing the explicit statutory exclusions to "regarded as" coverage).

77 ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555

(codified in 42 U.S.C. § 12102(3)(B) (Supp. 11 2009 .

78 Id. § 6(a) (codified as amended at 42 U.S.C. § 12201(h) (Supp. II 2009 ; see Statement severing of

of the Managers, supra note 50, at 18,519 (describing the ADAAA's accommodations from the "regarded as" prong as an "important limitation[ ]" on coverage).

the ADAAA's "transitory and minor" exclusion because

9 See, e.g., Barry, supra note 4, at 266 (explaining that advocates were unconcerned about they "believed that individuals with these impairments were not likely to encounter barriers to access"). Other research challenges this assumption by documenting that many low-wage workers without paid sick leave often face job loss for absences related to their own or their family members'

short-term illnesses. See generally Joan C. Williams, One Sick Child Away from Being Fired: When "Opting Out" Is Not an Option, WORK LIFE LAw (2006), available at http:// (describing the job vulnerability of low-wage www.worklifelaw.org/pubs/onesickchild.pdf workers with caregiving responsibilities). Nonetheless, the ADAAA's "transitory and minor" exclusion likely was a necessary compromise to gain support for the bill's otherwise broad expansion of the "regarded as" prong. See Feldblum et al., supra note 3, at 236-37 (noting that the exclusion "respond[ed] to concerns raised by the business community"); Statement of the Managers, supra note 50, at 18,519 (explaining that the exclusion "responds to concerns raised by employer organizations").

8 E.g., Barry, supra note 4, at 265 n.363; Feldblum et al., supra note 3, at 237-38; see also Statement of the Managers, supra note 50, at 18,519 (describing the ADAAA's severing of accommodations from the "regarded as" prong as "an acceptable compromise given our strong expectation that [individuals needing accommodation] would now be covered under the first prong"); 154 CONG. REC. 19,433-34 (2008) (statement of Rep. Jerrold Nadler) (expressing "confidence that individuals who need accommodations will receive them" under the expanded "actual" disability prong).

81 See BAGENSTOS, supra note 4, at 53 ("A universalist version of the ADA would impose a requirement of rationality on employers whenever they refuse to hire someone because of any present, past, or perceived physical characteristic."); Martha T. McCluskey, How the Biological/Social Divide Limits Disability and Equality, 33 WASH. U. J.L. & POL'Y 109, 156 (2010) (questioning whether "protected disability status should be presumptively and naturally limited to those with real or perceived impairments," given that any "direct social identity as disabled .. .can be the object of illegitimate differentiation"); Samaha, supra note 24, at 1259 (suggesting that "'[tirait' better fits the social model's broadest implications" than "impairment").

82 See, e.g., Barry, supra note 4, at 218 (advocating for universality while acknowledging that "the universal approach does not protect people treated adversely based on mere characteristics'); Crossley, supra note 19, at 712-13 (identifying the pros and cons of

eliminating the impairment requirement and "open[ing] up the protection of disability discrimination law to anyone subjected to adversely discriminatory treatment on the basis of any physical characteristic'); Feldblum, supra note 20, at 160-62 (advocating for universality while accepting that the one "unifying aspect" of disability "is that the individual either has to have, or has to be perceived as having, an impairment-that is, some aberration in her physical or mental system" (emphasis in original ; Perju, supra note 18, at 287 (explaining that "[d]efining disability without reference to medical impairments to disability," but would bring courts closer to a discrimination-centered approach concluding "that an impairment-free definition is highly unlikely").

8 Samaha, supra note 24, at 1266. 8 See Allison Ara, Comment, The ADA Amendments Act of 200& Do the Amendments Cure the Interpretation Problems of Perceived Disabilities?, 50 SANTA CLARA L. REV. 255, 275 (2010) (noting that in post-ADAAA "regarded as" cases, "courts will need to police the distinction between an 'impairment' and any other sort of condition").

A. IMPAIRMENT AS RETRENCHMENT RISK: A CRITIQUE OF EARLY CASE LAW

85 EEOC Regulations, 76 Fed. Reg. 16,978, 17,006 (Mar. 25, 2011) (amending 29 C.F.R.

app. § 1630.2(h .

8 See Statement of the Managers, supra note 50, at 18,518 ("The bill does not provide a definition for the terms 'physical impairment' or 'mental impairment.' The managers expect that the current regulatory definition of these terms ... will not change."); accord Jane Korn, Too Fat, 17 VA. J. Soc. POL'Y & L. 209, 235 (2010) ('The ADAAA does not change the definition of an impairment.").

81 See 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, 228 (2008) (noting that the impairment requirement had "rarely been used to exclude plaintiffs" in preADAAA cases); Bagenstos, supra note 45, at 407 (noting that defining "the boundaries of the 'impairment' concept" raises a "theoretical question that requires much further study"); Korn, supra note 86, at 231 (noting that in many pre-ADAAA cases the existence of an impairment was "not litigated").

88 See Areheart, supra note 87, at 211 (noting that pre-ADAAA cases "often fail[ed] at the

summary judgment stage since a claimant [was] often unable to prove herself disabled").

89 See BAGENSTOS, supra note 4, at 51-52 (suggesting that pre-ADAAA case law "gives judges tools to read 'impairment' parsimoniously"); Crossley, supra note 19, at 668-69 (arguing that although the regulatory definition of impairment, "on its face, is extremely

broad," pre-ADAAA case law remains wedded to a narrow medical model).

-29 C.F.R. § 1630.2(h) (2001) (pre-ADAAA version). The EEOC adopted this original definition from the regulations implementing the Rehabilitation Act. EEOC Regulations, 76 Fed. Reg. 16,978, 17,007 (Mar. 25, 2001); see also Crossley, supra note 19, at 697 (explaining the origin of the ADA's impairment definition).

91 EEOC Regulations, 76 Fed. Reg. at 17,006-07 (quoting Statement of the Managers,

92 Id. at 16,980, 17,000, 17,006-07 (amending 29 C.F.R. § 1630.2(h)-(i) and 29 C.F.R. app.

supra note 50).

§ 1630.2(h)-(i .

93 Id. at 17,000 (amending 29 C.F.R. § 1630.2(h)(2 .

9 Id. at 17,007 (amending 29 C.F.R. app. § 1630.2(h (stating that "physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone" and "personality traits such as poor judgment or a quick temper" typically will not constitute impairments, nor will "conditions, such as pregnancy, that are not the result of a physiological disorder").

9 Id. (amending 29 C.F.R. app. § 1630.2(h (noting that "poverty, lack of education, or a

prison record are not impairments").

9 Bagentos, supra note 45, at 407; see also Nicole Buonocore Porter, Essay, Relieving (Most of) the Tension A Review Essay of Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement, 20 CORNELL J.L. & PUB. POL'Y 761, 776 (2011) (expressing a "positive outlook" that courts will not "turn to interpreting 'impairment' strictly to limit coverage"). But see Elizabeth F. Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act, 60 AM. J. COMP. L. 205, 209, 213 (2012) (raising a concern that courts might "put more pressure on the evidence required to demonstrate an 'impairment'" as a "new way[ ] to narrow the ADA's protections").

9 BAGENSTOS, supra note 4, at 18. 59 See Samaha, supra note 24, at 1259 (noting that impairment has the "connotation of

inferiority," which is inconsistent with "the social model's broadest implications").

9 See Perju, supra note 18, at 341 ("[Slocial movements were bereft of arguments to invoke in the public sphere-and notably, in courts of law-regarding the interpretation of

impairment in the definition of disability from the perspective of the social model.").

100 See Areheart, supra note 21, at 362 (observing that impairment is "little more than diagnosis"); Crossley, supra note 19, at 689-90 (demonstrating that a "common thread" in the regulations and case law "defining 'disability' is the need for medical validation of the existence of an impairment").

101 See infra notes 123-50 and accompanying text (collecting cases and exploring their

ramifications).

102 See Crossley, supra note 19, at 689 (documenting how a medical model "appears in a broad gamut of cases when courts look to physicians to validate the existence of a plaintiffs impairment"); Perju, supra note 18, at 283 (arguing that "[w]ithout sufficient help in the uncharted waters of the discrimination-centered social model, judges (re)turned to a familiar approach-the medicalized conception of impairments").

103 See Crossley, supra note 19, at 690, 694 & n.326, 695 ("Persons struggling with the disabling effects of a novel condition before the condition is validated by medical science may not be able to establish that they have an impairment.").

104 Id. at 691.

105 Id. '0 Areheart, supra note 21, at 371-72. 107 See Crossley, supra note 19, at 678-79, 682-85 (revealing the medical model's influence in weight-related cases requiring proof of an identifiable physical disorder to obtain ADA coverage); Korn, supra note 86, at 231-33 (explaining that most courts have required that a plaintiffs obesity "result from a physiological disorder that can be identified" to obtain ADA coverage); Jane Byeff Korn, Fat, 77 B.U. L. REV. 25, 55 (1997) (explaining that in pre-ADAAA cases obesity "not caused by a known and identifiable underlying physiological condition ...is not an impairment").

108 Isaac B. Rosenberg, Height Discrimination in Employment, 2009 UTAH L. REV. 907, 929-31 (2009) (analyzing cases refusing to find that plaintiffs who are "just plain short" have an impairment without proof of a medical cause).

109 See, e.g., Ivey v. Dist. of Columbia, 949 A.2d 607, 613 (D.C. Cir. 2008) (affirming dismissal of weight-based ADA claim because plaintiff did not prove that a physiological condition caused her morbid obesity); EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436, 441-43 (6th Cir. 2006) (affirming dismissal of weight-based ADA claim because plaintiff did not link his morbid obesity to a physiological disorder); Mehr v. Starwood Hotels & Resorts Worldwide, Inc., 72 F. App'x 276, 286-87 (6th Cir. 2003) (affirming dismissal of heightbased ADA claim because plaintiff did not prove that his short stature resulted from a physiological disorder); Francis v. City of Meriden, 129 F.3d 281, 287 (2d Cir. 1997) (affirming dismissal of weight-based ADA claim because plaintiff did not prove that his

employer regarded him "as suffering from a physiological weight-related disorder"); Coleman v. Ga. Power Co., 81 F. Supp. 2d 1365, 1369-70 (N.D. Ga. 2000) (dismissing weight-based ADA claim because plaintiff did not prove that his obesity was "related to a physiological disorder"); Fredregill v. Nationwide Agribusiness Ins. Co., 992 F. Supp. 1082, 1089-90 (S.D. Iowa 1997) (dismissing weight-based ADA claim because plaintiff did not prove that his employer regarded his weight "as connected to a physiological disorder or condition').

110 Crossley, supra note 19, at 686. 111 See id. at 687 (noting the difficulty of proving impairment in weight-related ADA cases because of "the high level of medical uncertainty regarding the causes of obesity); Korn, supra note 86, at 231-33 (explaining that most people cannot link their obesity to a physiological disorder); Rosenberg, supra note 108, at 929 (noting the difficulty of proving impairment in height-related ADA cases because "most short people suffer from no biological malfunction').

112 No. 3:06cv417/MCR/EMT, 2008 WL 846121, at *2 (N.D. Fla. Mar. 28, 2008). 113 Id. at *3. 114 Id. 11r 72 F. App'x 276, 286-87 (6th Cir. 2003). 116 Id. at 287.

117 See, e.g., Gudenkauf v. Stauffer Commc'ns, Inc., 922 F. Supp. 465, 473 (D. Kan. 1996) (holding that pregnancy is not an impairment because it is "the natural consequence of a properly functioning reproductive system"); see also Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. app. § 1630.2(h) (2011) (stating that pregnancy is not an impairment because it is "not the result of a physiological disorder"); Crossley, supra note 19, at 671 nn.240-41 (summarizing cases).

1us 29 C.F.R. § 1630.2(h) (emphasis added). 119 See, e.g., Gudenkauf, 922 F. Supp. at 473 (holding that pregnancy is not an impairment because it "is a physiological condition, but it is not a disorder"); see also Crossley, supra note 19, at 670-71 (arguing that when courts hold "that pregnancy is not an impairment," they "ignor[e] the disjunctive between 'disorder' and 'condition' ").

120 See, e.g., Hernandez v. City of Hartford, 959 F. Supp. 125, 130 (D. Conn. 1997) (holding that pregnancy is not an impairment but that "complications caused by pregnancy" may be an impairment); Cerrato v. Durham, 941 F. Supp. 388, 392 (S.D.N.Y. 1996) (stating that although "a normal, uncomplicated pregnancy itself " is not an impairment, "a complication or condition arising out of the pregnancy" may be); see also Definition of the Term "Disability," EEOC COMPLIANCE MANUAL § 902.2(c)(3) (CCH) 6882, at 5,307 (2000) (explaining that pregnancy-induced hypertension is an impairment although pregnancy itself is not); Crossley, supra note 19, at 671-74 (analyzing ADA cases involving pregnancy complications).

121 Crossley, supra note 19, at 677. 122 Feldblum, supra note 20, at 162; see also Soileau v. Guilford of Me., Inc., 105 F.3d 12, to be measured in relation to

15-16 (1st Cir. 1997) (stating that "[i]mpairment is

normalcy").

123 See, e.g., Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) (dismissing a Rehabilitation Act claim alleging discrimination based on plaintiffs "poor judgment, irresponsible behavior and poor impulse control," because such "personality traits could be described as commonplace; they in no way rise to the level of an impairment"); Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) ("The very concept of an impairment implies a characteristic that is not commonplace.. .."); Jasany v. U.S. Postal Serv., 755 F.2d 1244, 1249 (6th Cir. 1985) ("Characteristics such as average height or strength ... are not impairments." (emphasis in original ; Crossley, supra note 19, at 702-03 & nn.356-57 (summarizing cases in which courts found common behavioral or physical attributes not to be impairments).

124 104 F.3d 803, 805, 808 (6th Cir. 1997). 125 Id. at 810 (emphasis omitted). The court also rested its conclusion on the plaintiffs' failure to allege "that they suffer from a physiological disorder," id., which demonstrates the combined effect of an abnormality and biological etiology requirement.

126 See Crossley, supra note 19, at 684-85 (collecting cases). Courts have used similar reasoning to reject height-based ADA claims. See Rosenberg, supra note 108, at 931-38 (discussing judicial and regulatory uses of the "normal range" in height-based claims).

127 E.g., Crossley, supra note 19, at 688; Korn, supra note 86, at 220-23; Korn, supra note 107, at 54; Karen M. Kramer & Arlene B. Mayerson, Obesity Discrimination in the Workplace: Protection Through a Perceived Disability Claim Under the Rehabilitation Act

and the Americans with Disabilities Act, 31 CAL. W. L. REV. 41, 64-72 (1994) (analyzing social science data regarding the stigmatization of obesity).

128 See Crossley, supra note 19, at 684 ("The courts seem to fear that permitting suits that allege discrimination based on simple ... characteristics such as excess weight will fling wide open the floodgates of specious ADA claims.").

129 Id. at 703. 130 Id. at 704. 1a1 Id. (citing Edward W. Campion, The Oldest Old, 330 NEW ENG. J. MED. 1819, 1819 (1994 . But see Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. app. § 1630.2(h) (2011) (stating that "medical conditions commonly associated with age, such as hearing loss, osteoporosis, or arthritis would constitute impairments").

132 See, e.g., Martinez v. Labelmaster, No. 96 C 4189, 1998 WL 786391, at *8 (N.D. Ill. Nov. 6, 1998) (holding that plaintiffs inability to lift twenty-five pounds or more was not an impairment because that condition "accompanies all pregnancies"); Jessie v. Carter Health Care Ctr., Inc., 926 F. Supp. 613, 616 (E.D. Ky. 1996) (holding that pregnancy "and the usual accompanying limitations" are not impairments absent "unusual circumstances"); Gudenkauf v. Stauffer Commc'ns, Inc., 922 F. Supp. 465, 474 (D. Kan. 1996) (finding no impairment because plaintiffs "morning sickness, stress, nausea, back pain, swelling and headaches" were not "unusual" or "outside the normal range" for pregnant women); Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995) (holding that "pregnancy and related medical conditions do not, absent unusual circumstances, constitute a 'physical impairment' ").

133 See Crossley, supra note 19, at 697 (identifying courts' tendency to conflate the legal

definition of "impairment" with a lay understanding of the verb "to impair").

134 See id. at 700-01 (analyzing cases in which courts have treated "impairment" not as "the bodily condition of the plaintiff, but the disadvantage or deficit in ability that is associated with a bodily condition").

135 29 C.F.R. § 1630.2(h)(1). 136 See Crossley, supra note 19, at 702 (arguing that collapsing "disability" into the impairment concept "reflects precisely the medical model of disability that disability theorists reject").

137 967 F. Supp. 653, 657-58 (D.P.R. 1997). 138 See supra notes 53-54 and accompanying text. 1as Rodriguez, 967 F. Supp. at 659. 140 794 F.2d 931, 934 (4th Cir. 1986). 141 Id.; see also Jasany v. U.S. Postal Serv., 755 F.2d 1244, 1250 n.6 (6th Cir. 1985) (suggesting that plaintiffs strabismus may be "so minor that it does not rise to the level of a physical impairment," rather than considering the condition's gravity only when applying the substantial-limitations test).

142 123 F.3d 156, 168 (4th Cir. 1997) (en banc). 143 524 U.S. 624, 632-37 (1998).

144 See BAGENSTOS, supra note 4, at 52 (analyzing the reasoning in Bragdon); Crossley, supra note 19, at 698 (noting Bradgon's continued emphasis on the condition's diminishing effects).

us 524 U.S. at 637. 146 Crossley, supra note 19, at 697. 147 Id. 148 BAGENSTOS, supra note 4, at 52 (arguing that judges committed to a minority group approach may use the definition of impairment to "reintroduce much of the limiting jurisprudence" that the ADAAA intends to overturn).

149 123 F.3d 156, 168 (4th Cir. 1997).

B. IMPAIRMENT AS SOCIAL CONSTRUCT: A CRITIQUE FROM EVOLVING DISABILITY THEORY

150 See 527 U.S. 471, 490 (1999) (emphasis added). 151 See supra note 96 and accompanying text; see also Tremain, Government of Disability, supra note 19, at 617 (explaining that "'impairment' is generally taken to refer to an objective, transhistorical and transcultural entity of which modern bio-medicine has acquired knowledge and understanding and which it can accurately represent").

152 See supra notes 21-23 and accompanying text (describing the impairment/disability

dichotomy).

153 See Areheart, supra note 21, at 360 n.66 ("While social modelists have focused on the meaning of disablement, impairment has been sorely neglected."); Bill Hughes, Disability and the Body, in DISABILITY STUDIES TODAY 58, 60 (Colin Barnes et al. eds., 2002) (noting that "the social model pushed the study of impairment to the fringes of disability studies"); Perju, supra note 18, at 282 (observing that "impairments have remained largely undertheorized within the social model"); Carol Thomas & Mairian Corker, A Journey Around the Social Model, in DISABILITY/POSTMODERNITY, supra note 19, at 18, 20 (arguing that "impairment should be much more centrally addressed in disability studies"); Tremain, Government of Disability, supra note 19, at 620-21 (suggesting that the social model "forced a strict separation between the categories of impairment and disability," and "the former category has remained untheorized").

154 See SIMI LINTON, CLAIMING DISABILITY: KNOWLEDGE AND IDENTITY 138 (1998) (noting the need "to grapple more directly with 'impairment' and recognize that it is as nuanced and complex a construct as 'disability' "); Areheart, supra note 21, at 349, 36077 (arguing that impairment "is indeed a social concept"); Dan Goodley & Mark Rapley, 'Learning Difficulties,' in Changing the Subject: Postmodernity and People with DISABILITY/POSTMODERNITY, supra note 19, at 127, 138 (arguing that early disability studies "ignore[d] the socially contested nature of impairment"); Carol Thomas, Disability Theory: Key Ideas, Issues and Thinkers, in DISABILITY STUDIES TODAY, supra note 153, at 38, 51 (describing the social constructionist critique that "both impairment and disability are discursively constructed social categories" (emphasis in original ; Thomas & Corker, supra note 153, at 22 (criticizing early social modelists for abstracting impairment from social context); see also Arlene S. Kanter, The Law: What's Disability Studies Got to Do with It or An Introduction to Disability Legal Studies, 42 COLUM. HUM. RTS. L. REV. 403, 407 (2011) (defining disability studies as "the examination of disability as a social, cultural, and political phenomenon").

1s5 See McCluskey, supra note 81, at 134 (arguing that impairment "has meaning only in relation to functioning in a particular social, economic, and political context"); Tremain, Government of Disability, supra note 19, at 632 (explaining that impairments materialize only in relationship to "norms and ideals about ... human function and structure, competency, intelligence, and ability').

156 See Thomas & Corker, supra note 153, at 19 (arguing that impairment is not "universal, fixed, unchanging, [or] transhistorical); Tremain, Government of Disability, supra note 19, at 617 (arguing that impairment is socially ascribed and historically and culturally specific); Tremain, Impairment, supra note 19, at 34 (arguing that impairment is "historically contingent').

1' See LINTON, supra note 154, at 22 (arguing that normalcy is constructed and historically specific); Crossley, supra note 19, at 656 (explaining that "the very concept of a 'normal human being' is socially constructed and therefore socially and culturally relative"); Lennard J. Davis, Constructing Normalcy, in THE DISABILITY STUDIES READER, supra note 19, at 3, 3 (advocating for a greater focus on the constructed nature of normalcy); Jackie Leach Scully, A Postmodern Disorder: Moral Encounters with Molecular Models of Disability, in DISABILITY/POSTMODERNITY, supra note 19, at 48, 48, 53 (explaining that "cultural standards" and "[b]iomedical science" continually "reconstitut[e] normality").

15 Lennard J. Davis, The End of Identity Politics: On Disability as an Unstable Category, in THE DISABILITY STUDIES READER, supra note 19, at 301, 309; see also Scully, supra note 157, at 48 (arguing that "[m]edicine is in the business of reconstituting normality and health," which are concepts that evolve "over relatively short time-spans").

159 Davis, supra note 158, at 309. 160 Areheart, supra note 21, at 370; see also id. at 368 (describing "transient" impairments-conditions that have always existed but have not always been considered impairments-to illustrate the historically and culturally relative nature of impairment).

161 See Crossley, supra note 19, at 694-95 (noting that medical science "may at times be

slow in accepting evidence of a new condition").

162 See Areheart, supra note 21, at 364 (arguing that political, social, and economic

interests shape the creation and application of diagnostic labels); Davis, supra note 158, at 309 (suggesting that impairments may be "a creation of a medical-technologicalpharmaceutical complex").

1s3 See Areheart, supra note 21, at 366 (discussing a study linking pharmaceutical money

to the creation of DSM categories).

164 See id. at 370 (identifying economic interests that have fueled proliferation of learning

disability diagnoses).

165 See id. at 362-69 (arguing that bodies are described as impaired through diagnostic labels that reflect cultural and social judgments, political negotiations, and financial incentives).

166 See id. at 372 (describing how a "cultural condition" may be "transformed into a

medically identifiable pathology'). 167 Davis, supra note 158, at 309. 168 Areheart, supra note 21, at 365. 169 Tremain, Government of Disability, supra note 19, at 621; Tremain, Impairment, supra note 19, at 34; see also LINTON, supra note 154, at 22 (describing the term "abnormal" as "value laden").

1o Crossley, supra note 19, at 656; see also LINTON, supra note 154, at 24 (noting that the terms "normal" and "abnormal" not only "affect individuals' most private deliberations

about their worth and acceptability," but also "determine social position and societal response to behavior"); Tremain, Impairment, supra note 19, at 34 (expressing doubt that there is ever "a description which [is] not also a prescription for the formulation of that to which it is claimed innocently to refer" (emphasis in original .

171 Areheart, supra note 21, at 362; see also Davis, supra note 158, at 309 (arguing that

impairment "relies heavily on a medical model for [a] diagnosis").

172 Tremain, Impairment, supra note 19, at 33; see also McCluskey, supra note 81, at 134 (arguing that the impairment concept "seems primarily useful as a strategy for removing contested judgments about disability from political, social, and legal scrutiny").

173 Scully, supra note 157, at 48; see also Tremain, Impairment, supra note 19, at 34 (arguing that impairment is not an "entity which biomedicine accurately represents," but "an historically contingent effect of modern power").

174 Areheart, supra note 21, at 354; see also Tremain, Impairment, supra note 19, at 42 impairment "naturalize[s] science (arguing [impairments] as an interior identity or essence" and "camouflage[s] the historically contingent power relations that materialized them as natural" (emphasis omitted .

that allowing biomedical

to define

175 See Goodley & Rapley, supra note 154, at 134 (arguing that the social model's "biological vision of impairment" leaves power "in the hands of the very institution that such a theory purports to challenge" (emphasis omitted ; Hughes, supra note 153, at 67 (explaining that "the social model, conceived as the intractable opponent of... the medical to share with it a common conception of the body" that was model. .., came "indistinguishable from the one promoted by biomedicine"); Tremain, Impairment, supra note 19, at 33 (noting that although the social model was "[d]eveloped to counter individual (or medical) models of disability," it granted biomedical science control over defining individuals with impairments).

176 Tremain, Government of Disability, supra note 19, at 631; see also Stefan, supra note 7, at 1343 (observing that the ADA's practice of "permitting experts and the judiciary to determine whether an individual fits into a protected class ... would be unthinkable in the case of race, gender, age, religion, or sexual orientation").

177 See Perju, supra note 18, at 282-83, 335 (describing social modelists' political motives). 178 Id. at 283. 179 Id. at 338-39 (chronicling how the separation of disability from illness helped forge a

common identity in the disability movement).

180 Id. at 335; see also Crossley, supra note 19, at 700, 702 (suggesting that disability scholars accepted the "medicalization of impairment" to avoid "the conflation of the concepts of impairment and disability," which could reinforce the medical model's notion "that bodily inferiority naturally causes the disadvantages of disability"); Thomas, supra note 154, at 50 (describing how early social modelists viewed "a focus on impairment as posing a danger" to the movement by reinforcing the "'impairment causes disability' positions in the medical model").

181 OLIVER, supra note 22, at 39 (internal quotation marks omitted). 182 See Perju, supra note 18, at 335 (describing social modelists' "argumentative strategy"). 183 Id.

184 Id. at 284;

(observing that the impairment/disability dichotomy "paradoxically gives the social model both its strengths and its weaknesses").

see Shakespeare, supra note 19, at 268

185 Perju, supra note 18, at 284. 186 Id. 187 Goodley & Rapley, supra note 154, at 138 (internal quotation marks omitted). 188 Samaha, supra note 24, at 1266-67; see also McCluskey, supra note 81, at 155 ("[TIndividual biological and social identity and functioning are thoroughly entangled and inseparable."); Tremain, Impairment, supra note 19, at 42 ("Mhe strict division between the categories of impairment and disability which the social model is claimed to institute is in fact a chimera.").

189 Tremain, Government of Disability, supra note 19, at 632. 1oo Goodley & Rapley, supra note 154, at 138 (emphasis omitted); see also OLIVER, supra note 22, at 42 (observing the need to "develop a social model of impairment to stand alongside a social model of disability); Thomas, supra note 154, at 52 (noting that impairment "requires further theoretical and political attention'); Thomas & Corker, supra note 153, at 24 ("[I]mpairment should be theorized as a biosocial phenomenon.").

191 See supra notes 58-70 and accompanying text. 192 A similar history exists in sex discrimination law, in which gender was theorized as a social construct imposed upon biological sex to advance an antidiscrimination agenda. Shakespeare, supra note 19, at 271. Later feminists then challenged the sex/gender dichotomy by revealing the socially constructed nature of sex, just as disability theorists are Id.; see also now challenging impairment "as an unsocialized and universal concept." Areheart, supra note 21, at 356-60 (analogizing the impairment/disability dichotomy to the historic development and critique of the sex/gender binary).

193 Cf. Perju, supra note 18, at 343 (explaining that judges' concerns differ "from the

formation of shared identity of persons with disabilities").

194 See supra notes 82-83 and accompanying text.

195 One scholar has taken the forward-looking step of urging abandonment of the biological/social divide, arguing that the "central division between social and biological causes of disability has developed into a bind that impedes meaningful analysis and reform of injustice." McCluskey, supra note 81, at 110, 113. While Professor McCluskey's compelling argument should inform the future direction of disability rights, this Article focuses more immediately on what recent disability theory might reveal about the risks and opportunities presented by the existing ADAAA. 196 See supra note 19 and accompanying text. 197 See Crossley, supra note 19, at 690 (observing that "the power to define who is disabled has historically been used to advance the interest of groups providing services to disabled people rather than to advance the interests or well-being of disabled people themselves").

19s See id. at 689 n.302 (arguing that the medicalization of impairment ignores "the social

experience of oppression").

199 See Barry, supra note 4, at 220 (noting that while the universal approach covers all impairments, "not all impairments ... subject people to systematic prejudice, stereotypes, and neglect").

200 DEBORAH L. RHODE, THE BEAUTY BIAS: THE INJUSTICE OF APPEARANCE IN LIFE AND

LAW 23-44, 63 (2010).

201 See Areheart, supra note 21, at 374-76 (critiquing radical social constructionism for

implying that "disabilities are not real").

202 See supra notes 37-38 and accompanying text (explaining advocates' understanding of

the "regarded as" prong).

IV. LEARNING FROM THE MINORITY GROUP APPROACH: NEW UNIVERSALITY'S EMBRACE OF DIFFERENCE

203 See supra notes 58-70 and accompanying text. "4 See infra notes 279-81 and accompanying text.

205 See Linda Hamilton Krieger, Foreword-Backlash Against the ADA- Interdisciplinary

Perspectives and Implications for Social Justice Strategies, 21 BERKELEY J. EMP. & LAB. L. 1, 7-12 (2000) (describing the ADA backlash in the judiciary and mainstream media); Linda Hamilton Krieger, Afterword: Socio-Legal Backlash, 21 BERKELEY J. EMP. & LAB. L. 476, 492-98 (2000) (discussing the socio-legal effects of the ADA backlash); Marta Russell, Backlash, the Political Economy, and Structural Exclusion, 21 BERKELEY J. EMP. & LAB. L. 335, 348-55 (2000) (analyzing "the business backlash against the ADA"); Michelle A. Travis, Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans Without Disabilities, 76 TENN. L. REV. 311, 315-19 (2009) (discussing the role of the media, popular culture, and the judiciary in fueling the ADA backlash).

206 Travis, supra note 205, at 315-17.

207 Id. at 317-20. 208 See Derrick Bell, Brown v. Board of Education Reliving and Learning from Our Racial History, 66 U. PITT. L. REV. 21, 22 (2004) (arguing that "the interest of blacks in achieving racial equality is accommodated only when that interest converges with the interests of whites in policy-making positions"); Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 524 (1980) [hereinafter Bell, Interest-Convergence Dilemma] (explaining that Brown required policy makers to recognize "the economic and political advances" from desegregation).

209 See generally Travis, supra note 205 (applying the interest-convergence concept to

disability civil rights).

210 Bell, Interest-Convergence Dilemma, supra note 208, at 523-25. 211 Travis, supra note 205, at 312; see also Adrienne Asch, Critical Race Theory, Feminism, and Disability: Reflections on Social Justice and Personal Identity, 62 OHIO ST. L.J. 391, 401 (2001) (observing "that nondisabled persons may discover the convenience of ... architectural changes" to accommodate disabled individuals, but arguing that such changes "should not be justified as worthwhile because nondisabled people can enjoy them").

212 Travis, supra note 205, at 312; see also Asch, supra note 211, at 402 ("Disability policy to the economic and emotional needs of the nondisabled

and politics must speak majority.. ..").

213 See supra notes 48-64 and accompanying text (detailing the ADAAA's expanded

antidiscrimination coverage).

214 Burgdorf, supra note 7, at 519. 215 Phil Lee, Shooting for the Moon: Politics and Disability at the Beginning of the TwentyFirst Century, in DISABILITY STUDIES TODAY, supra note 153, at 139, 151 (internal quotation marks omitted).

216 Crossley, supra note 19, at 666.

217 See Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, in PERSPECTIVES ON DISABILITY 37, 39-40 (2d ed. 1993) (defining "existential anxiety" as "the perceived threat that a disability could interfere with functional capacities deemed necessary to the pursuit of a satisfactory life").

218 Crossley, supra note 19, at 666. 219 See Shakespeare, supra note 19, at 272 (explaining the challenges to celebrating disability as we "celebrate Blackness, or Gay Pride, or being a woman"); accord Lee, supra note 215, at 151 (explaining how the social model's association with severe physical impairments "deter[s] many people from adopting a disabled identity and participating in a disability community" (citation omitted ; cf. Emens, supra note 96, at 232 (urging greater consideration of "the possibility of disability as something that people (disabled or nondisabled) could be drawn to-for community, culture, or concepts").

220 LINTON, supra note 154, at 30-31 (arguing that the construction of "dis/ability" is inconsistent with a continuum approach, and that 'd]is is the semantic reincarnation of the split between disabled and nondisabled people in society").

221 See Carla C. Chandler et al., It Can't Happen to Me ... Or Can It? Conditional Base Rates Affect Subjective Probability Judgments, 5 J. EXPERIMENTAL PSYCHOL.: APPLIED 361, 374 (1999) (summarizing research finding that most people assess their own risk for negative events as less than their peers' risk); Meg Gerrard et al., The Effect of Risk Communication on Risk Perceptions: The Significance of Individual Differences, J. NAVL CANCER INST. MONOGRAPHS, JAN. 1999, at 94, 95 (describing people's tendency to "think that they are less vulnerable to future negative events than are similar others"); Alexander J. Rothman et al., Absolute and Relative Biases in Estimations of Personal Risk, 26 J. APPLIED Soc. PSYCHOL. 1213, 1213 (1996) ("[Pleople are unrealistically optimistic about their chances of avoiding many negative life events."); Neil D. Weinstein & William M. Klein, Resistance of Personal Risk Perceptions to Debiasing Interventions, 14 HEALTH PSYCHOL. 132, 132 (1995) ("People show a consistent tendency to claim that they are less likely than their peers to suffer harm."); Sean Hannon Williams, Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use, 84 NOTRE DAME L. REV. 733, 735, 742-45 (2009) (citing evidence that "most people are irrationally optimistic about their futures").

222 See Nancy E. Avis et al., Accuracy of Perceptions of Heart Attack Risk: What Influences Perceptions and Can They Be Changed?, 79 AM. J. PUB. HEALTH 1608, 1608 (1989) (compiling research showing "that people tend to underestimate their own risk of developing certain conditions or diseases"); David Dunning et al., Flawed Self-Assessment: Implications for Health, Education, and the Workplace, 5 PSYCHOL. SCI. IN THE PUB. INT. 69, 79 (2004) (summarizing evidence of people's tendency "to be unrealistically optimistic about their health"); Nathan M. Radcliffe & William M.P. Klein, Dispositional, Unrealistic, and Comparative Optimism: Differential Relations with the Knowledge and Processing of Risk Information and Beliefs about Personal Risk, 28 PERSONALITY & PSYCHOL. BULL. 836, 837 (2002) (summarizing research showing that most people rate their own health risks as below average); Alexander J. Rothman & Marc T. Kiviniemi, Treating People With Information: An Analysis and Review of Approaches to Communicating Health Risk Information, J. NAT'L CANCER INST. MONOGRAPHS, Jan. 1999, at 44, 45 (explaining the "tendency to systematically underestimate important health risks").

223 See Williams, supra note 221, at 744 (summarizing "comparative optimism" research). Many studies have documented the optimistic bias for specific health risks. See, e.g., Avis et al., supra note 222, at 1609 (heart attack); Matthew W. Kreuter & Victor J. Strecher, Changing Inaccurate Perceptions of Health Risk: Results From a Randomized Trial, 14 HEALTH PSYCHOL. 56, 56, 59, 62 (1995) (heart disease, cancer, alcoholism, auto accidents, heart attack, and stroke); Thomas A. Morton & Julie M. Duck, Communication and Health Beliefs: Mass and Interpersonal Influences on Perceptions of Risk to Self and Others, 28 COMM'N RESEARCH 602, 617-18 (2001) (skin cancer); Rothman et al., supra note 221, at 1220-21 (suicide, chronic liver disease, colon cancer, alcohol abuse, panic attacks, obesity, pregnancy, chlamydia, and human papilloma virus); Neil D. Weinstein, Unrealistic Optimism About Future Life Events, 39 J. PERSONALITY & Soc. PSYCHOL. 806, 810-11

(1980) [hereinafter Weinstein, Unrealistic Optimism] (drinking problems, heart attack, and cancer); Neil D. Weinstein, Unrealistic Optimism About Susceptibility to Health Problems: Conclusions from a Community-Wide Sample, 10 J. BEHAV. MED. 481, 486 tbl.1 (1987) [hereinafter Weinstein, Health Problems] (drug addiction, alcoholism, asthma, deafness, lung and skin cancers, diabetes, stroke, heart attack, auto injury, arthritis, and high blood pressure).

224 See, e.g., Avis et al., supra note 222, at 1610 (finding in a large-scale study that 42% of respondents overestimated their heart attack risk relative to their objective individual risk level); Radcliffe & Klein, supra note 222, at 840 (finding in a large-scale study that 56% of participants were overly optimistic about their heart attack risk relative to their objective personal risk factors); Rothman et al., supra note 221, at 1225 (finding in a large-scale study that "most individuals ... were optimistic in both relative and absolute senses" regarding many health risks).

Studies identifying the optimistic bias in individuals relative to their personal risk factors add significantly to the more common demonstrations of comparative optimism in which individuals merely rate their own risk as less than that of their peers. Although comparative optimism studies establish bias "at the group level," they cannot identify the particular individuals who are unrealistically optimistic. Radcliffe & Klein, supra note 222, at 837; see also Weinstein, Health Problems, supra note 223, at 489 (explaining that grouplevel bias exists when a group's "mean comparative risk judgment" is below average, but that any particular individual's belief "that his or her susceptibility to a particular hazard is less than average" is not necessarily "an example of unrealistic optimism").

225 See Radcliffe & Klein, supra note 222, at 841 (finding no correlation between these personal factors and optimism levels); Weinstein, Health Problems, supra note 223, at 489, 496 (same); Williams, supra note 221, at 754 (same).

226 Rothman et al., supra note 221, at 1221. 227 Radcliffe & Klein, supra note 222, at 837; cf. Gerrard et al., supra note 221, at 96 (finding that individuals with high self-esteem have particularly resilient optimistic biases). 228 Morton & Duck, supra note 223, at 604; see also Weinstein & Klein, supra note 221, at 132-39 (analyzing four studies using different risk-factor information and concluding that no debiasing interventions consistently reduce the optimistic bias); Williams, supra note 221, at 748-53 (summarizing the results of various debiasing strategies).

229 Williams, supra note 221, at 749; see also Avis et al., supra note 222, at 1610-11

(finding in a large-scale study that individual heart attack risk data did not reduce the optimistic bias for "the majority of respondents"); Chandler et al., supra note 221, at 365-68 (finding in a large-scale study that even when individuals receive base-rate risk statistics, most still estimate their own risk below the base-rate); Gerrard et al., supra note 221, at 94 (There is limited evidence that providing risk information is an effective way to change risk perceptions. ..."); Kreuter & Strecher, supra note 223, at 61 (finding mixed results in a large-scale study on whether individualized risk feedback improves assessments of personal risks); Rothman & Kiviniemi, supra note 222, at 45-46 (finding that probability data about health risks does not dramatically improve personal risk assessments).

230 Gerrard et al., supra note 221, at 96; see also Rothman & Kiviniemi, supra note 222, at 44 ("[P]eople are not passive, unbiased processors of information about their health status." (citation omitted ; Weinstein, Health Problems, supra note 223, at 498 (summarizing research finding that people are "ingenious in finding reasons for believing that their own risk is less than thp risk faced by their peers").

231 Gerrard et al., supra note 221, at 96; Rothman & Kiviniemi, supra note 222, at 44. 232 Rothman & Kiviniemi, supra note 222, at 48. 233 Chandler et al., supra note 221, at 366, 374; see also Morton & Duck, supra note 223, at 604 (finding that people consistently assess others' health risks as higher than their own); Rothman et al., supra note 221, at 1221, 1225, 1231 (finding in a large-scale study that comparative optimism is largely explained by overestimating others' health risks).

234 See, e.g., Chandler et al., supra note 221, at 375 (concluding that the optimistic bias may be improved through "a combination of individualized feedback about a person's characteristics and the conditional probability that the event will occur given these characteristics"); Kreuter & Strecher, supra note 223, at 57 (finding some reduction of optimistic biases by providing individualized risk data and "information about the precautionary actions of others").

230 See Rothman & Kiviniemi, supra note 222, at 47 (discussing various risk-salience

studies).

236 Gerrard et al., supra note 221, at 95. 237 See Williams, supra note 221, at 762 (collecting research showing that "[u]nrealistic

optimism creates benefits, in addition to its costs").

238 Id. at 762-63. 239 Weinstein & Klein, supra note 221, at 132. 240 Id. But see Radcliffe & Klein, supra note 222, at 836 ("[O]ptimism may prevent individuals from taking proactive measures to affect the outcomes about which they are optimistic."); Weinstein & Klein, supra note 221, at 132 (noting that a tendency to "downplay one's own risk may interfere with appropriate self-protective action").

241 Radcliffe & Klein, supra note 222, at 838, 843-44. Most research has not focused specifically on individuals who have been identified as unrealistically optimistic about their health relative to personal risk factors, but rather has focused more generally on individuals who rate high in "dispositional optimism"-i.e., individuals with a strong positive outlook, which may not be erroneous based on their personal health risks. Id. at 837. Nonetheless, the pervasiveness of the optimistic bias suggests that not all individuals with high dispositional optimism are accurately assessing their individual health risks.

242 See Williams, supra note 221, at 736 ("[C]orrecting over-optimism can impose collateral

costs.").

243 Employees tend to be overly optimistic about legal protections in the workplace, often believing that permissible grounds for adverse employment actions are unlawful. See Pauline T. Kim, Norms, Learning, and Law: Exploring the Influences on Workers' Legal Knowledge, 1999 U. ILL. L. REV. 447, 454-65 (1999) (describing survey results assessing workers' understanding of at-will employment). Most employees erroneously believe, for example, that the law prohibits employers from firing an at-will employee to hire someone to work for lower pay or simply because the employer personally dislikes the employee. Id. If most employees incorrectly believe that employers may not fire them at 456 tbl.1. because of personal animus, they probably also believe correctly (under the ADAAA) that the law prohibits employers from firing them for non-substantially limiting impairments. In the context of disability, researchers have found that individuals who identify as "a disabled person" and who do not "distinguish disability from self" are less likely to view employment exclusion as "unfair treatment" that implicates legal rights. DAVID M. ENGEL & FRANK W. MUNGER, RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES OF AMERICANS WITH DISABILITIES 46 (2003) (internal quotations omitted). In contrast, an individual who identifies as "a person with many attributes and capabilities, of which the disability is but one," is more likely to view employment exclusion as "unfair" and rightsId. This finding suggests that individuals with non-substantially limiting activating. impairments--who are particularly likely to distinguish their impairments from their selfidentities-are likely to view impairment-based employment decision making as unlawful.

244 See, e.g., Barry, supra note 4, at 283 (arguing that the ADAAA's "regarded as" prong and "represents ... an "provid[es] nearly universal nondiscrimination protection" acknowledgment that there is no 'us' and 'them' "); Feldblum, supra note 20, at 158 (noting that impairment-based antidiscrimination protection would "dissolve the line between 'disabled' and 'the rest of us' ").

245 See, e.g., BAGENSTOS, supra note 4, at 34 (stating that "disability discrimination law is different" from other civil rights laws, which "have no protected classes'); Areheart, supra

note 87, at 210 (distinguishing the ADA from other civil rights statutes because "the ADA protects only a particular set of people-specifically those with disabilities").

246 Expanding the group of self-perceived ADA stakeholders in this way is unlikely to open a litigation floodgate. See Feldblum, supra note 20, at 160 (arguing that a broad interpretation of the "regarded as" prong will not inundate courts because "[ilt is rare that an individual in today's society is denied employment ... because of a small, minor impairment"). Rhode has found that state and local laws that go beyond the ADA to cover all forms of appearance-based discrimination have not produced "the flood of frivolous litigation and business backlash that critics ... predicted." RHODE, supra note 200, at 126.

2A7 See supra notes 7-8 and accompanying text.

248 See Susan Wendell, Toward a Feminist Theory of Disability, in THE DISABILITY STUDIES READER, supra note 19, at 336, 341 ("If the able-bodied saw the disabled as potentially themselves or as their future selves, they would be more inclined to feel that society should be organized to provide the resources that would make disabled people fully integrated and contributing members.").

249 See Bagenstos, supra note 45, at 479-80 (explaining that the universal approach has been criticized for ignoring the systematic marginalization of those with substantially limiting impairments); Carol J. Gill, Questioning Continuum, in THE RAGGED EDGE: THE DISABILITY EXPERIENCE FROM THE PAGES OF THE FIRST FIF'EEN YEARS OF THE DISABILITY RAG 42, 42, 47 (Barrett Shaw ed., 1994) (arguing that only individuals with substantially limiting impairments "know the relentless feeling of dealing directly and inescapably with both the difference and the public invalidation it inspires").

250 Gill, supra note 249, at 42. 251 Simi Linton, Reassigning Meaning, in THE DISABIUTY STUDIES READER, supra note 19, at 225; see also LINTON, supra note 154, at 150 ('The continuum approach ... doesn't wash when you observe the specific treatment of disabled people in society."); Bagenstos, supra note 45, at 481 ("[Clalling society's attention to the ways in which its practices and institutions uniquely disadvantage an identifiable group of people with disabilities may be the only way to force a careful examination of the subordinating effects of those practices." (emphasis in original .

252 See LINTON, supra note 154, at 5 (noting that "a strong disability alliance has led to civil rights victories and the foundation of a clearly identified disabled community"); Davis, supra note 158, at 301-02 (explaining how a disability identity helps "creat[e] a collectivity"); Gill, supra note 249, at 49 (arguing that individuals with disabilities gain political and psychological power "from celebrating who we are as a distinct people"); Marta Russell, Malcolm Teaches Us, Too, in THE RAGGED EDGE, supra note 249, at 11, 12 (noting the importance of "identify[ing] as disabled people" and arguing that "others should be called 'nondisabled,' " which "gives them less power").

25s Stefan, supra note 7, at 1341.

Id. at 1342.

254 255 See IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 47 (1990) ("Though some groups have come to be formed out of oppression, ...group differentiation is not in itself oppressive."); see also Gill, supra note 249, at 49 (arguing that a minority group approach does not further "encourage divisiveness" in a society that already marginalizes those with certain impairments).

256 See Gill, supra note 249, at 43-44 (explaining how the tendency to homogenize fails to

respect disability's "differentness").

257 See id. (arguing that a continuum approach is not "the path out of ... marginalization"

because it does not engender respect for difference).

258 See LINTON, supra note 154, at 120-21 (quoting EVELYN Fox KELLER, REFLECTIONS ON GENDER AND SCIENCE 163 (1985 . Linton argues that "[m]arking the border" between the disabled and nondisabled "is a strategic endeavor not to separate the two groups further but to illuminate the lines that currently divide them." Id. at 124.

259 Gill, supra note 249, at 44-45; see also Asch, supra note 211, at 394 (explaining the need to understand disability in a way "that appreciates similarities and differences among people with impairments").

260 LINTON, supra note 154, at 129; see also Simon Thompson & Paul Hoggett, Universalism, Selectivism and Particularism: Towards a Postmodern Social Policy, 16 CRITICAL Soc. Pol'Y 21, 21, 32 (1996) (arguing in the context of welfare reform that "sophisticated universalism" must account for difference).

261 LINTON, supra note 154, at 121. 262 See Travis, supra note 205, at 367 (analyzing how the ADA reflects that "the lives, inextricably

needs, and interests of individuals with and without disabilities are intertwined as family members, friends, coworkers, and citizens").

263 See ADA Amendments Act of 2008, Pub. L. No. 110-325, § 6(a)(1), 122 Stat. 3553, 3557-58 (codified at 42 U.S.C. § 12201(g) (Supp. III 2009 ("Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability."); see also Statement of the Managers, supra note 50, at 18,519 ("[A] person without a disability does not have the right under the Act to bring an action against an entity on the grounds that he or she was discriminated against ... on the basis of not having a disability ...").

26 42 U.S.C. § 12112(b)(4) (2006). 265 See Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. § 1630.8 (2011) (stating that the association provision applies to "family, business, social or other relationship[s]"); see also Travis, supra note 205, at 368-71 (analyzing case law and agency guidance on the association provision).

266 42 U.S.C. § 12203(a)-(b) (2006). 267 Travis, supra note 205, at 374; see, e.g., Barker v. Int'l Paper Co., 993 F. Supp. 10, 1516 (D. Me. 1998) (holding that a nondisabled employee stated an ADA retaliation claim alleging that he was fired for seeking an accommodation for his disabled wife).

268 Travis, supra note 205, at 375; see, e.g., Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570-72 (3d Cir. 2002) (holding that firing a disabled employee's nondisabled son in retaliation for the disabled employee filing a claim against the employer could constitute unlawful third-party retaliation).

269 See supra notes 43-48 and accompanying text. 270 See supra note 54 and accompanying text. 271 See supra note 58 and accompanying text. 272 See, e.g., Barry, supra note 4, at 218 (arguing that a universal approach would "protect everyone who experiences discrimination based on an impairment much like the Civil Rights Act of 1964 protects everyone who experiences discrimination based on race, religion, gender, or ethnicity"); Feldblum, supra note 20, at 101-02, 163-64 (noting that impairmentbased antidiscrimination would be analogous to Title VII's treatment of race and sex).

273 See Feldblum, supra note 20, at 101 ("[O]ur civil rights laws prohibit the use of a characteristic that the legislature has decided should ordinarily be irrelevant in decisionmaking." (emphasis in original .

274 Barry, supra note 4, at 278-79. Title VII includes a limited accommodation mandate for religion. 42 U.S.C. § 2000e(j) (2006). However, courts have interpreted that mandate very narrowly because accommodating religion raises Establishment Clause issues that are absent in the disability context. Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1, 6-7 (1996).

275 Tremain, Impairment, supra note 19, at 42.

276 See Barry, supra note 4, at 278 (arguing that the regarded as prong "harmonizes the concept of impairment with race, sex, and other protected characteristics" and brings "parity between the ADA and other civil rights laws").

277 See BAGENSTOS, supra note 4, at 46 ("A protected-class understanding of disability rights law ... encourages judges to see their job as vigorously policing the line between those who are in and those who are out of the protected class.").

278 ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553, 3555

(codified at 42 U.S.C. § 12102(4)(A) (Supp. III 2009 .

the Supreme Court's high standard

279 Id. §§ 2(a)(7)-(8), 2(b)(4)-(5) (codified at 42 U.S.C. § 12101 note (Supp. III 2009 impairment (rejecting "substantially limits" a major life activity); see also id. § 4(a) (codified at 42 U.S.C. § 12102(4)(B ("The term 'substantially limits' shall be interpreted consistently with the findings and purposes of the [ADAAA] ....").

for showing that an

280 Id. § 4(a) (codified at 42 U.S.C. § 12102(2 (revising the definition of "major life activities" to expand the enumerated activities and include major bodily functions); see also id. § 2(b)(4) (codified at 42 U.S.C. § 12101 note (Supp. III 2009 (rejecting a Supreme Court case that had defined "major life activities" narrowly).

281 Id. § 4(a) (codified at 42 U.S.C. § 12102(4)(E)(i ('The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures ...."); see also id. § 2(b)(2) (codified at 42 U.S.C. § 12101 note (Supp. III 2009 (rejecting Supreme Court cases that had assessed an impairment's limiting impact "with reference to the ameliorative effects of mitigating measures"). The ADAAA also expanded the "actual" disability prong by clarifying that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Id. § 4(a) (codified at 42 U.S.C. § 12102(4)(D .

282 Professor Ruth Colker's recent empirical work may temper this optimism.

See generally Ruth Colker, Speculation About Judicial Outcomes Under 2008 ADA Amendments: Cause for Concern, 2010 UTAH L. REV. 1029 (analyzing the grounds for employers' victories in pre-ADAAA cases). Because Colker found that the disability definition did not play a significant role in favorable defendant outcomes in ADA cases filed from 2006 to 2008, she predicts that the ADAAA "will likely have little effect on overall judicial outcomes." Id. at 1031-32. Professor Ani Satz has also raised concerns that "the environments in which courts choose to evaluate an individual for disability" may be easily manipulated to undermine the ADAAA's expanded disability definition. Ani B. Satz, Fragmented Lives: Disability Discrimination and the Role of "Environment-Framing," 68 WASH. & LEE L. REv. 187, 227 (2011).