Anticipating Disability

Where do—and should—future disabilities fit within the law? Disability civil rights laws expressly extend rights to individuals with present or past disabilities, but it remains unsettled how the prospect of acquiring a disability in the future should be understood within these laws. Resolving this question is crucial not only for continued refinement of disability civil rights doctrine, but the inquiry has broader civil rights and healthcare implications given racial disparities in exposures to potentially disabling circumstances and the negative health effects of racism itself.

This Article is the first to provide a comprehensive taxonomy of how future disabilities can be understood within disability civil rights laws. I articulate two overarching frameworks for situating future disabilities in the law. The first framework, which I describe as anticipatory accommodations, concerns efforts by an individual to obtain disability accommodations in the present to counter the possibility of acquiring a disability in the future, such as a person seeking disability accommodations to avoid COVID-19 exposure that they believe may lead to a future disability. The second framework, which I describe as preemptive disability stigma, concerns adverse treatment of an individual in the present based on others’ perception that the individual may acquire a future disability, such as an employer firing an employee who they believe might become disabled. The Article addresses a critical doctrinal gap by articulating and analyzing each framework. I conclude that only a narrower subset of claims within the anticipatory accommodations framework appears apt for resolution under disability civil rights laws, but claims under the preemptive disability stigma framework align with the laws’ scope and could meaningfully advance their nondiscrimination purpose. I then call for clarification of the proper application of disability civil rights laws to future disabilities through judicial interpretation and, to the extent needed, regulatory and statutory reform. Lastly, this Article sets the stage for further work evaluating potential interventions beyond civil rights law that can more directly target the ways that racial subordination disparately produces both future disabilities and negative health outcomes.

Table of Contents Show

Introduction

Many people fear experiencing a significant change in how their mind or body operates. Sometimes this fear is animated by a concern about experiencing pain or illness. Sometimes the fear represents anxiety over a change in the ways one navigates the world, for example, through the kind of “sudden, debilitating shift in one’s mental/corporeal experience” that Margaret Price calls a “bodymind event.”[1] Yet, sometimes it is expressed specifically as a fear by people without disabilities of becoming disabled[2] in the future, a perspective in which disability is often regarded as the potential consequence of a tragic circumstance or wrongful conduct, such as a car accident that causes a disabling injury.[3] This framing can be demeaning for people who already have disabilities, but fear of acquiring a disability in the future defies simple normative judgments. People who already have disabilities may similarly fear acquiring an impairment that causes a different or additional disability in the future, particularly given their firsthand knowledge of how various ableist norms, assumptions, and barriers can make navigating the world with a disability distinctly challenging.[4]

How should the law account for the complexities of future disabilities? The concept of disabilities that may arise in the future implicates challenging questions across a range of academic disciplines: from public health[5] to philosophy[6] to tort law.[7] This Article primarily focuses on how future disabilities should be analyzed from the lens of disability civil rights laws, offering doctrinal and normative critiques of how this body of law accounts for the anticipation of disability in the future. In discussing disability civil rights law, I refer to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504), which prohibit discrimination based on disability as defined by those laws.[8]

Disability civil rights laws establish express rights for people who already have or have had a disability,[9] but the ways in which people may acquire disabling conditions in the future (and the fact that one’s disability status may change over time) have no obvious place within the doctrine. This unresolved doctrinal question prompts a normative question of whether legal arguments regarding the anticipation of disability in the future (distinct from the anticipation of an impairment)[10] can be articulated without stigmatizing disability, demeaning the experiences of people who already have disabilities, or relying on ableist notions that the existence of disability is necessarily and inherently the harm to be avoided, rather than pain or ill health that could impact both people with and without disabilities.[11]

To consider these questions, this Article conceptualizes two overarching frameworks which capture the claims and arguments that have emerged within disability civil rights case law and scholarly discussions relating to future disabilities and offers normative critiques of the claims within these frameworks. The first framework, which I call the anticipatory accommodations framework, involves an individual’s efforts to obtain accommodations under disability law to guard against a possibility of a future disability. An example includes employment discrimination claims in which employees seek disability accommodations in the form of health and safety measures to address fears of being exposed to COVID-19 and potentially acquiring a disability as a result. The second, which I call the preemptive disability stigma framework, concerns allegations that a defendant has treated the plaintiff adversely based on their or another person’s perception that the plaintiff is likely to acquire a disability in the future, such as claims that an employer fired a worker who they believed might become disabled in the future. In the former, it is the plaintiff who anticipates their own future disability and seeks disability accommodations as a result. In the latter, the defendant treats the plaintiff adversely because the defendant or another person anticipates the plaintiff will become disabled in the future. The two frameworks also build from different theories of liability, with the anticipatory accommodations framework relying on failure-to-accommodate liability and the preemptive disability stigma framework building from theories that extend disability civil rights protections to individuals who are regarded as disabled or who are associated with a disabled person.[12]

This Article’s discussion of the jurisprudence on future disabilities focuses on the employment discrimination context since it is where the case law reflecting these two frameworks most commonly appears. However, several of the key cases shaping the doctrine of future disabilities concern alleged discrimination by public entities (e.g., in the prison context) or by places of public accommodation (e.g., private businesses).[13] Thus, my analyses concerning the construct of future disabilities extend beyond the employment context, and the Article notes where the legal analysis may differ or warrant special attention in a particular legal context.

Upon considering various arguments drawing upon the anticipatory accommodations framework, I caution that only a narrowed application of this framework appears apt for resolution under disability civil rights laws. Even if anticipatory accommodations do fit within the laws’ scope, some arguments drawing on this framework rely to an extent on a fear that nondisabled people may become disabled in the future, and thus risk tension with the destigmatizing aims of disability civil rights laws. Moreover, the existence of systems, institutions, and conditions that increase the likelihood of acquiring future disabilities—and, in some cases, disparately so for marginalized populations—warrants more structural and multisystemic remedies than a civil rights approach is likely able to provide.

By contrast, arguments concerning individualized adverse treatment situated within the preemptive disability stigma framework are well-placed within disability civil rights law, as evidenced by the fact that they align with an already accepted and longstanding legal theory: One can be harmed by stereotypes based on disability even without having a disability. However, courts thus far have largely rejected claims drawing upon the preemptive disability stigma framework based on a flawed interpretation of the statutory text and a failure to recognize the full scope of disability civil rights laws’ intended purpose. This Article critiques the current legal analysis of claims utilizing the preemptive disability stigma framework and, to the extent there is any genuine ambiguity in existing disability civil rights laws, calls for regulatory and statutory reform to clarify that the scope of the law encapsulates preemptive disability stigma.

Although this Article clarifies the extent to which (and how) the construct of future disabilities fits within disability civil rights law, there is an important dialogue among scholars regarding the utility and sufficiency of a rights-based approach to justice, including in the disability rights context.[14] There are indeed limitations to the extent to which civil rights laws achieve justice, and this is increasingly so while the Supreme Court’s civil rights jurisprudence continues to narrow the scope and enforcement of such laws.[15] Further, a focus on legal rights can at times obscure or interfere with the overarching aim of justice.[16] But, as with other antidiscrimination laws, the protections of disability civil rights laws continue to have value, especially for those who are currently in need of legally enforceable remedies while the broader movement for disability justice is ongoing.[17] In outlining the contours of how disability civil rights laws can and should be applied to future disabilities, this Article shines light on the laws’ underrealized potential to address future disabilities while nonetheless recognizing that disability civil rights law and legal advocacy are “necessary but insufficient to end subordination.”[18] My analysis does not end with this Article. To continue the dialogue about subordination’s implications for future health and disability, Part IV of this Article sets the stage for additional research that will examine healthcare system reforms and public health law as promising sites for more upstream interventions than civil rights litigation.

This Article makes several distinct kinds of contributions to the academic literature within disability law, employment discrimination law, and antidiscrimination law. First, the Article is the first to produce a taxonomy of how future disabilities can be understood within disability civil rights laws, with special attention to the prospect of future disabilities as it arises in the employment discrimination context.[19] Further, by focusing on disabilities that have no or limited manifestations in the present, this Article extends the discourse in case law and scholarship regarding progressive disabilities (for which symptoms may develop slowly and worsen over time) and genetic predispositions to certain disabilities.[20] In organizing and contextualizing the doctrine, this Article also destabilizes the general expectation that, by virtue of unduly narrow judicial interpretation, a person’s medical diagnosis (or lack thereof) has come to dictate whether they fall within the scope of disability civil rights laws.[21] Indeed, a diagnosis is “an operation of power.”[22] Yet, despite the general trend among courts of rejecting disability civil rights claims absent a definitive medical diagnosis, this Article illustrates that at least some courts considering the prospect of future disabilities have correctly focused on the present effects of an individual’s impairment even if that impairment has yet to manifest in a specific diagnosis, such as a precancerous condition that has yet to advance into cancer. These cases show that the existence of a formal diagnosis is not necessarily dispositive in courts’ application of the law.

Second, the Article provides the most extensive analysis to date within legal scholarship regarding the temporal limits on how far into the future the protections of disability civil rights laws do and should extend, contributing to two related bodies of legal scholarship.[23] Firstly, my analysis on the temporal bounds of disability civil rights supplements an ongoing dialogue about systems and institutions that produce disability. For example, in the context of the family regulation, policing, and carceral systems, scholars have identified ways in which the norms, conditions, and failures of those systems can create or exacerbate disabling impairments and how ableism makes navigating those systems more challenging for individuals with disabilities.[24] This Article expands upon that scholarship since the existence of systems and institutions that disable necessarily implicates the construct of future disabilities and the extent to which those entities have obligations under disability civil rights law to an individual who faces the prospect of a disability that has not yet manifested. Additionally, this Article contributes to a growing body of legal scholarship challenging the notion that legal constructions of time and the use of temporal frameworks for providing legal remedies are neutral.[25] I draw in particular from the literature within disability studies exploring the relationship between disability, time, temporality, and futurity.[26] By extending this disability studies literature into legal scholarship, the Article draws needed attention to the limitations of the law and its reliance on linear temporal frameworks for those who fall in the liminal space of becoming disabled across time. I am further informed by the articulation of “racial time” in my examination of how hierarchies based on race and disability status may function together to cast people of color as “out of time” (or perhaps, more accurately, outside of time) when they seek disability accommodations.[27]

Lastly, this Article furthers ongoing efforts among legal scholars, including my own prior work, to articulate and amplify the interconnectedness between discrimination based on race and disability.[28] Throughout this Article, I highlight examples of how systemic and individualized forms of racial discrimination can lead to the disparate possibility of acquiring a disabling impairment in the future. A number of societal forces and systems can produce future disabilities, such as exposure to environmental hazards, gun violence, or involvement in the criminal legal system.[29] Yet when racial discrimination produces disability, it also exposes that individual to a co-constitutive form of subordination. Discrimination of one form can thus beget discrimination based on another, entangling the two. I have previously analyzed how courts and lawyers should evaluate claims of employment discrimination based on the intersection of race and disability.[30] By drawing attention to the relationship between racial discrimination and future disabilities, this Article invites deeper reflection on one way in which an individual might find themselves at that specific intersection.

This Article proceeds in five Sections. Part I provides an overview of the meaning of “disability” under disability civil rights law and of key jurisprudence relevant to future disabilities. Parts II and III offer the anticipatory accommodations and preemptive disability stigma frameworks as tools for understanding future disabilities, using examples from case law and legal scholarship to define each framework and critique the claims and arguments falling within them. Part IV identifies potential interventions outside of civil rights law, in addition to proposing a path for how future disabilities can be better accounted for in judicial interpretation, regulatory reform, and statutory reform. The Conclusion describes additional important lines of scholarly inquiry following from this Article’s analysis.

I. The Development of Jurisprudence on Future Disabilities

To contextualize this Article’s analysis of how future disabilities can be understood within disability civil rights law, this Section provides an overview of when a physical or mental health condition (legally, an “impairment”) becomes a “disability” within the meaning of the law.

Adopting the definition in the Rehabilitation Act, the ADA defines “disability” as (A) “a physical or mental impairment that substantially limits one or more major life activities” of the individual; (B) a “record of such an impairment”; or (C) “being regarded as having such an impairment,” with provision (C) further defined elsewhere in the statute.[31] Agency regulations for the three primary contexts covered by the law (employment, public services, and places of public accommodation) define a physical or mental impairment as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss” affecting one or more specified body systems or “[a]ny mental or psychological disorder.”[32] Impairments are often understood to exist on a physiological level independent of any social norms, judgments, or hierarchies about individuals with the impairment.[33]

In contrast with this understanding of an impairment as something “which cannot be alleviated by external or social conditions,” disability is in some respects a product of social construction, reflecting society’s reaction to a specific way of existing or appearing in the world.[34] Indeed, the ADA endorses the “social model” of understanding disability, in which a given health condition or a person’s state of being is disabling largely due to societal barriers and exclusion, as compared with a “medical model,” which limits disability to biological or medical difference.[35] The paradigmatic example of how disability is socially constructed is reflected in this quote from an advocate: “If they’d take away the handicaps (like stairs, and other barriers for wheelchair-confined and otherwise disabled people), then we wouldn’t be handicapped.”[36] Some scholars have offered valid criticism of the social model as imposing an unfounded or overstated binary between impairment and disability[37] and as being outdated in certain respects, including in that it “does not address . . . how different individuals or groups of people become impaired.”[38] Accepting these critiques, the model’s framing remains useful for appreciating the legal distinction between impairment and disability, a necessary foundation for understanding disability civil rights legal doctrine.

How do disability civil rights laws account for the construct of future disabilities? A useful starting point is the Supreme Court’s analysis in Bragdon v. Abbott, which considered whether HIV infection is a disability under the ADA.[39] In Bragdon, Sidney Abbott sued her dentist under the ADA and state law after the dentist refused to treat Abbott’s cavity at his office because she was HIV-positive.[40] One of the key legal questions the Court sought to address was “whether HIV infection is a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase.”[41] The opinion and its underlying arguments have faced some critiques for being overly focused on the mechanics of bodily impairments and disease progression.[42] Nonetheless, I address Bragdon here because it remains the Court’s first significant analysis of temporal limitations on the ADA’s scope through its examination of when impairment begins.

In holding that Abbott was a person with a disability under the ADA, a majority of the Court emphasized that there were immediate physiological effects of HIV infection and thus it was a present impairment even if the HIV infection had not yet manifested as AIDS.[43] As Justice Kennedy explained, based on the evidence proffered during summary judgment proceedings, “Once a person is infected with HIV, the virus invades different cells in the blood and in body tissues.”[44] The Court further held:

In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. . . . [I]nfection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. . . . HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.[45]

This choice of language—“immediate,” “constant,” and “from the moment of infection”—reveals how critical the evidence of when HIV infection begins to impair blood cell activity was to the Court’s holding that HIV infection has present effects falling within the ADA’s scope of impairment.[46] The availability of such temporal evidence likely allowed Justice Kennedy to avoid addressing the more difficult question: whether a condition that only had future effects could meet the definition of an impairment (let alone a disabling one) under the ADA.

Several justices in Bragdon expressed concern about interpreting disability civil rights protections to encompass impairments whose effects may manifest in the future. The concern arose in the context of the ADA’s requirement that an impairment must “substantial[ly] limit[]” a major life activity and Abbott’s assertion that her HIV-positive status substantially limited “her ability to reproduce and to bear children.”[47] In a partial concurrence, Justice Rehnquist rejected that argument, reasoning that “the ADA’s definition of a disability is met only if the alleged impairment substantially ‘limits’ (present tense) a major life activity.”[48] Justice Rehnquist claimed that “[a]symptomatic HIV does not presently limit respondent’s ability to perform any of the tasks necessary to bear or raise a child,” and warned that Abbott’s argument, “taken to its logical extreme, would render every individual with a genetic marker for some debilitating disease ‘disabled’ here and now because of some possible future effects.”[49] Justice Kennedy did not directly engage with Justice Rehnquist’s slippery slope argument—an anxiety about broadly extending civil rights “here and now because of some possible future effects”—which left lower courts to respond to this critique without guidance.[50]

Notably, Bragdon did not grapple with whether or how to predict if an individual who is HIV-positive will later acquire AIDS.[51] Instead, the Court evaluated whether the risk of transmitting HIV to one’s partner or child in the future is a substantial limitation in the present on the major life activity of reproduction, as Abbott had asserted, even if one’s HIV infection never advances to AIDS.[52] The relevant inquiry in Bragdon was not whether Abbott was likely to acquire AIDS, but whether the risk of transmitting her current HIV infection during conception or childbirth significantly limited her ability to reproduce. The limitation did not arise from “utter inabilities” but from the health, economic, and legal consequences of transmitting HIV to another person, particularly at the time.[53]

The Supreme Court again considered the temporal question of when disability civil rights protections apply in Sutton v. United Air Lines, Inc., where Justice Rehnquist now found himself in the majority alongside Justice Kennedy. In Sutton, two sisters alleged disability discrimination under the ADA when an airline rejected their applications to work as pilots because they had severe myopia, though both women had 20/20 or better vision when wearing corrective lenses.[54] The Court held that the determination of whether a person has an impairment that substantially limits a major life activity under the ADA should account for the effects of any mitigating measures taken—in this case, corrective eyeglasses and contact lenses.[55] Although unnecessary to resolve the mitigating measures issue, Justice O’Connor, writing for the majority, concluded that “[b]ecause the phrase ‘substantially limits’ appears in the Act in the present indicative verb form, we think the language is properly read as requiring that a person be presently—not potentially or hypothetically—substantially limited in order to demonstrate a disability.”[56] Thus, after failing to persuade in Bragdon, Justice Rehnquist found his argument counseling against the inclusion of future disabilities within the scope of the ADA reflected in the majority opinion in Sutton, even if as dicta. Congress later passed the ADA Amendments Act of 2008 (ADAAA) to clarify the intended broad scope of the definition of “disability” and explicitly rejected much of Sutton.[57] However, the amended statute did not revise the present-tense phrasing that invited Rehnquist’s (and O’Connor’s) textual argument. The result is a lingering ambiguity about how far into the future the law’s protections reach.

The most considered analysis in recent years is in Darby v. Childvine, Incorporated, where the Sixth Circuit analyzed whether an individual who tests positive for the BRCA1 gene mutation—a trait associated with a greater risk of cancer—qualifies as having a disability under the ADA.[58] Sherryl Darby sued under state law and the ADA when she was fired shortly after informing her employer that she was diagnosed with breast cancer and taking time off from work to recover from a double mastectomy.[59] Early discovery in the litigation revealed that Darby had the BRCA1 gene mutation but did not actually have a diagnosis of cancer, a condition widely recognized as a disability under the ADA.[60] Darby amended her complaint to allege that her medical provider “found an epithelial cell abnormality” and that “genetic testing resulted in a positive match for the BRCA1 gene,” which Darby alleged “is an impairment that substantially limits normal cell growth.”[61] Darby acknowledged that the impairment on which she based her ADA claim was “a pre-cancerous genetic mutation, not advanced breast cancer.”[62] The district court rejected Darby’s claim that “the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth.”[63] The court further distinguished Darby’s case from cases in which an individual’s cancer is in remission,[64] finding that Darby’s condition was “presently, the absence of cancer.”[65] Echoing Justice Rehnquist’s view in Bragdon, the district court held that “[t]o expand the definition of physical impairment to include a condition that might lead to a disability in the future effectively puts every employee under ADAAA,” adding that “[such] choice belongs to Congress.”[66]

On appeal, the Sixth Circuit reversed, holding that Darby plausibly alleged impairments—namely, the BRCA1 gene mutation and abnormal epithelial cell growth—that substantially limited her normal cell growth.[67] The court explained that its decision was consistent with Bragdon, which held that “HIV qualifies as a disability under the ADA because of its immediate effects on white blood cells and bodily functions, not because it will eventually develop into AIDS.”[68] The Sixth Circuit’s focus was not on predicting the risk that Darby’s genetic condition would develop into breast cancer but on understanding the extent to which the genetic condition substantially limited a major life activity in the present. Whereas the district court’s analysis appeared narrowly tethered to the (non)existence of a cancer diagnosis, the Sixth Circuit appropriately focused on the impairment alleged and its present effects.

The Sixth Circuit noted that Darby did not pursue a claim under the Genetic Information Nondiscrimination Act, which prohibits terminating an employee because of their genetic information, and agreed with the district court that “a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA” because “[t]he terms of the Act do not reach that far.”[69] According to the Sixth Circuit, a disability under the ADA “must substantially limit a major life activity, not merely have the potential to cause conditions that do” and “a genetic mutation that is merely capable of altering normal cell growth cannot be an impairment that presently ‘substantially limits’ that growth.”[70] Although the Sixth Circuit held that Darby’s specific allegations were sufficient pending discovery, its reasoning signals that a condition that establishes the possibility of significantly impairing a major life activity in the future, without more, is not itself a disability.[71]

Despite Darby’s alignment with Bragdon and analogous case law,[72] the limits of the ADA’s coverage for health conditions that may develop into a disability in the future remain unsettled. To address this question, the following Sections introduce and analyze two overarching frameworks—anticipatory accommodations and preemptive disability stigma—that explain how future disabilities fit within disability civil rights law.

II. Anticipatory Accommodations

The ADA requires employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,” unless the employer demonstrates that “the accommodation would pose an undue hardship” on the operation of their business.[73] Other provisions of the ADA impose an analogous obligation using the term “reasonable modifications.”[74] I use the term “anticipatory accommodations” to describe a framework, reflected in case law and implicated in academic literature, in which an individual seeks disability accommodations in the present because they anticipate they will acquire a disability in the future. I discuss two strands of this argument below: (1) pre-impairment anticipatory accommodations and (2) post-impairment anticipatory accommodations. After describing these two strands, I examine the extent to which either is well-situated within disability civil rights law.

A.   Pre-impairment Anticipatory Accommodations

Under the pre-impairment strand of the anticipatory accommodations framework, an individual claims a right to disability accommodations that would enable them to avoid acquiring an impairment that might be disabling in the future.

For example, in a case involving potential future disability arising from coronavirus exposure at the start of the COVID-19 pandemic, grocery store manager Bryan Gray alleged that his former employer terminated him in retaliation for protected activity under the ADA and interfered with his exercise of ADA rights for himself and other employees.[75] Multiple employees told Gray that they did not feel safe working in the store because “they were concerned about getting COVID,” and Gray informed district management that the employees wanted to take leave.[76] Gray also spoke with the vice president of human resources to express his concern that the company was taking insufficient action to protect employees from illness, in addition to raising his own concerns about his and his family’s health.[77]

Gray was later terminated and alleged that his advocacy for the employees seeking leave constituted protected activity under the ADA.[78] However, the court held that Gray’s advocacy was “for a group of individuals to which the ADA did not apply—i.e., store employees who did not have a disability within the meaning of the ADA, but, rather, were afraid of a potential future disability if they contracted COVID-19.”[79] Thus, unlike the plaintiff in Bragdon, the workers in Gray had no impairment at all. Citing case law holding that “possible future exposure to COVID-19” is not an impairment under the ADA and noting an absence of any authority requiring that employers must provide accommodations for possible future disabilities, the court in Gray held that no reasonable jury could find that Gray had engaged in protected activity when he advocated for employees seeking leaves of absence to protect against possible exposure to COVID-19.[80]

The implication of Gray is that an individual with only prospective or speculative effects from an impairment is unlikely to be found disabled within the meaning of the ADA. Gray further illustrates the limitations of disability civil rights laws when invoked by those who do not neatly fit within the confines of the law. In Part II.C, I critique the use of disability civil rights law as a strategic litigation tool to fill the remedial gaps of other systems meant to protect against structural harms to health and safety.

A case decided before the ADA’s amendment in 2008, Kepley v. Board of Regents of University of New Mexico, further demonstrates how courts grapple with pre-impairment anticipatory accommodations.[81] Plaintiff Elizabeth Kepley was a university employee with cyclothymia, which is a mental health condition, and had previously experienced preeclampsia, a pregnancy complication involving dangerously high blood pressure.[82] The preeclampsia required Kepley’s hospitalization during her first pregnancy, and, during her second pregnancy, her doctor “decided [Kepley] should be off her feet as much as possible, to lessen the danger of pre-eclampsia.”[83] As a result, Kepley requested a workplace accommodation that would enable her to spend less time standing.[84] The employer accommodated Kepley by reassigning her to duties that generally allowed her to remain seated while working.[85] However, Kepley’s supervisor continued earlier efforts to push Kepley out of the job and Kepley later sued under the ADA, alleging she was constructively terminated in retaliation for filing a disability discrimination complaint.[86]

In the litigation, the employer argued that Kepley was not an individual with a disability under the ADA based on preeclampsia because Kepley “was not actually suffering from the condition at the time she requested her accommodation, so the condition could not have substantially limited a major life activity at that point.”[87] However, the court rejected this argument, instead finding a genuine issue of material fact as to whether Kepley’s risk of acquiring preeclampsia again without the accommodation of seated work constituted an impairment that substantially limits one or more major life activities.[88] Kepley illustrates a plaintiff seeking disability accommodations (seated work) to avoid acquiring an impairment that would likely be disabling (preeclampsia). In contrast with Gray, the Kepley court was open to treating that potential future preeclampsia as a disability under the ADA. One distinction likely explaining the difference in analysis between Gray and Kepley is that the plaintiff in Kepley had previously experienced the impairment at issue, thus was seeking pre-impairment anticipatory accommodations to prevent a past disability from recurring in the future.[89] The right to obtain reasonable accommodations when needed for a past disability is now codified in the Title I regulations, and Kepley arguably implicates both past and future disabilities.[90] Yet both cases illustrate claims by individuals seeking disability accommodations to avoid acquiring an impairment that could be disabling in the future.

B.   Post-impairment Anticipatory Accommodations

The post-impairment anticipatory accommodations framing describes claims that seek disability accommodations for an existing impairment that may or may not develop into a disability.[91] The discussion below illustrates the framework.

In Lonergan v. Florida Department of Corrections, an individual incarcerated in a Florida state prison alleged that he was denied a reasonable modification in violation of Title II of the ADA, which governs state and local government entities.[92] Daniel Lonergan “was diagnosed with actinic keratosis, a type of pre-cancer,” and his dermatologist ordered that he receive “a large hat, sun block (i.e., sunscreen lotion), and a ‘no sun pass.’”[93] The prison provided a hat and sunscreen, but only gave Lonergan a pass limiting his time in the sun to fifteen minutes per hour; the prison cited security concerns in explaining why it did not provide the requested no-sun pass.[94] Lonergan requested a transfer to a facility in which he would not have to be outside, but his request was denied.[95] After he transferred to another facility for unrelated reasons, Lonergan sought other accommodations that were also denied and lost some accommodations he had received previously, including his hat and the pass limiting time in the sun to fifteen minutes.[96] While he was later reissued his hat and sunscreen and was given long-sleeved shirts to wear, the facility told Lonergan that “his sun pass was unauthorized and that the Florida Department of Corrections ‘does not recognize cancerous skin conditions as a disability.’”[97] The facility’s layout required Lonergan to “stand in line in the sun in order to do just about anything,” including eat, go to his assigned work, and obtain medical care.[98] Because of his dermatologist’s directive to stay out of sunlight and the prison’s failure to provide the requested accommodations, Lonergan often missed these important activities.[99]

The Eleventh Circuit rejected the district court’s holding that Lonergan had not successfully alleged that he has a disability under the ADA, and specifically noted Lonergan’s allegation that he has “abnormal growth of pre-cancerous cells” that substantially limits major life activities.[100] Notably, the Eleventh Circuit focused on the alleged impacts of Lonergan’s impairments on his major life activities despite the evidence that he had yet to develop cancer, the readily recognized disability that was most implicated by his impairment. In doing so, this holding aligns with the broad approach to defining the scope of disability that Congress endorsed in the passage of the ADAAA.[101]

Importantly, much of the success of such anticipatory accommodations claims rises and falls with the specificity of the complaint allegations. In Garcia v. Los Angeles County, for example, a pro se plaintiff filed suit under Title II and Section 504 on the ground that “he has a disability, i.e., being pre-diabetic, that puts him at heightened risk of severe illness or death should he contract COVID-19” and that the county jail in which he was being held “failed to accommodate him by failing ‘to provide adequate protections’ to prevent him from contracting COVID-19.”[102] This plaintiff thus drew both upon the pre-impairment strand of the framework, in seeking accommodations to avoid acquiring COVID-19, and the post-impairment strand, in seeking those accommodations in light of his prediabetes. In screening the sufficiency of the complaint allegations pursuant to the Prison Litigation Reform Act, the district court cursorily rejected the plaintiff’s claims, finding that he failed to explain why prediabetes is a disability under the ADA and Section 504 rather than merely an indicator that a person is “at risk of developing . . . diabetes.”[103] In doing so, the court relied on case law about whether prediabetes was a risk factor for illness due to COVID-19 that warranted compassionate release from federal prison during the COVID-19 pandemic under the First Step Act.[104] Garcia is thus ultimately a case involving the risk (by virtue of prediabetes) of being at risk (by virtue of COVID-19 exposure) of potentially acquiring a disability. These layers of speculation about the prospect of acquiring a future disability, the challenges pro se plaintiffs may face in articulating their legal theories, and the court’s reliance on case law outside of the antidiscrimination context may have been enough to doom the plaintiff’s claims. Yet, much like the immediate physiological effects of the HIV infection in Bragdon and the abnormal cell growth in Lonergan, prediabetes impairs glucose and hemoglobin levels even if it never advances to diabetes.[105] The plaintiff in Garcia likely would have had success in avoiding dismissal had they been able to explain these present effects in their complaint.

Lead poisoning is another post-impairment context in which some scholars and advocates have argued that exposure to lead itself should entitle one to the protections of disability civil rights laws, including the right to accommodations to mitigate its effects. There is no safe level of lead to have in one’s body.[106] Lead poisoning affects nearly every organ system and lead exposure can even be “transferred intergenerationally from parent to child.”[107] Consider the early life of Baltimore’s Freddie Gray, years before he died during an encounter with a police department that the U.S. Department of Justice would later find had engaged in systematic discrimination against Black residents.[108] According to a lawsuit Gray and his siblings filed against their home’s property owner, Gray lived for years in a home where “paint chips flaked off the walls and littered the hardwood floor” and “[t]he front windowsills shed white strips of paint.”[109] Gray’s home poisoned him. By the time he was roughly ten months old, Gray’s blood contained “more than 10 micrograms of lead per deciliter of blood—double the level at which the Center for Disease Control urges additional testing.”[110] Gray’s blood lead level nearly tripled three months later, and it climbed to thirty-seven micrograms by the time he was twenty-two months old.[111] That amount was “more than seven times the level that child health experts now believe can cause severe and permanent brain damage,” and Gray and his twin sister were later diagnosed with “attention deficit disorders and impulse control problems,” both of which are more common for children who have been poisoned by lead.[112] The elevated blood lead level “in all likelihood affected [Gray’s] ability to think and to self-regulate and profoundly affected his cognitive ability to process information.”[113]

Using the framing of disability civil rights laws to examine the chronic exposure of low-income children and children of color like Freddie Gray to lead in substandard housing, Emily Benfer argues that exposure to lead itself meets the legal definition of a “disability.”[114] Specifically, Benfer argues that individuals in federal housing with elevated blood lead levels are disabled under the law because “[l]ead poisoning substantially limits the neurological system, a major bodily function.”[115] For example, researchers have found that “[b]oth the central nervous system and the peripheral nervous system become affected on lead exposure,” causing degeneration of parts of the brain, and that “once lead enters the body, it is almost impossible to remove it completely or to reverse its damaging effects on the body.”[116] This research supports the argument that lead poisoning is a disability within the meaning of the law due to its immediate health effects, regardless of whether the elevated blood lead level also results in later diagnoses like attention deficit or behavioral disorders. Consistent with this research, the U.S. Department of Housing and Urban Development has endorsed the position that elevated blood lead levels meet the legal definition of disability.[117] Still, some litigants have struggled to assert claims based on lead poisoning, though this difficulty likely lies in courts’ inapt efforts to relate lead poisoning to a more recognized disability, rather than focusing on the specific bodily functions impaired by exposure to lead.[118]

Benfer further argues that participants who have been lead poisoned are entitled to reasonable accommodations like risk assessments prior to renting a unit, interim measures to abate any lead found within housing units, expedited authorization to move out of a poisoned home, or temporary housing while lead abatement measures are ongoing.[119] While case law on the issue is limited, Benfer’s argument that an elevated blood lead level alone is a disability is consistent with the language of the ADAAA. Since the lead exposure has already occurred for such individuals—unlike in Gray—and has immediate effects on the body, Benfer’s analysis is also consistent with Bragdon’s consideration of HIV-infection that has not yet progressed to AIDS.[120]

These examples reveal both disability civil rights law’s reach to the post-impairment context for conditions with present physiological effects and the vulnerability of such claims when courts lack sufficient factual records and analytical guidance.

C.   Interrogating the Framework

Upon considering the anticipatory accommodations framework as implicated in case law and scholarship, I identify its benefits and challenges below. In doing so, I caution that the pre-impairment variation appears ill-suited for disability civil rights law and that careful nuance is needed when invoking the framework in the post-impairment context.

1.   Benefits of Anticipatory Accommodations

The primary value of this framework is that it does not require a person to wait until an impairment is considered legally disabling before they can obtain accommodations that would benefit their health or their ability to engage in a major life activity. To require a person to wait until their condition is indeed disabling before they can obtain needed accommodations could merely delay access to necessary healthcare and legal safeguards, though the need for such supports is inherently more speculative for an individual seeking pre-impairment accommodations. Indeed, any legal constraints on an individual’s ability to access disability accommodations that protect their health are more consequential given the lack of comprehensive protections in other systems meant to guard against health risks and harms.[121]

Additionally, greater flexibility with respect to accessing accommodations would better capture the reality that neither disability status nor the need for disability accommodations operate neatly within linear time. Disability studies scholars use the term “crip time” to refer to “a reorientation to time” that challenges prevailing norms of how bodyminds are expected to operate.[122] For example, Alison Kafer examines the various “strange temporalities” associated with disability, such as the ways in which “depression slow[s] down time, making moments drag for days” and “panic attacks cause linear time to unravel, making time seem simultaneously to speed up and slam shut, leaving one behind.”[123] Crip time can also involve “a kind of anticipatory time,” as might be experienced by a person with chronic pain who conserves strength and for whom “the present moment must often be measured against the moment to come.”[124] It involves uncertainty while a person is in the liminal space of seeking or receiving a diagnosis and understanding what that diagnosis (or lack thereof) means for their future.[125] This liminality complicates the process of requesting accommodations since “accommodation implies . . . the ability to say, ‘I can tell you what I’m going to need—in an hour, in a week,’” but “events unfold unpredictably, recursively” in crip time.[126] Accordingly, doctrinal flexibility concerning when an individual can seek disability accommodations and what they must demonstrate to do so would better align with the temporal complexities of how many people experience disability.

Moreover, people of color who have a diagnosed disability or who live in a “time of undiagnosis”[127] often must additionally confront the dominating effects of “racial time,” as evidenced by having to wait for access to “institutions, goods, services, resources, power, and knowledge” that nonsubordinate groups can access earlier.[128] Naa Oyo A. Kwate argues that racial time steals health opportunities from Black people, as manifested by Black people having to spend more time than others to receive what they need, receiving less time being cared for by people and institutions who owe them such a duty, and losing years of good health.[129] Consider the fact that, as I have described in prior scholarship, a Black working-class man seeking a psychotherapy appointment would have to call sixteen times as many therapists to get a weekday evening appointment as a middle-class White woman.[130] Consider also that medical providers tend to spend significantly less time consulting with Black patients than White patients, particularly non-Black providers.[131] Moreover, a race-based formula for calculating kidney function left more than fourteen thousand Black candidates for kidney transplants in the United States lower on the waiting lists than their condition required, adding an average of two years of unjustified waiting time.[132] The extensive research finding higher rates of delayed diagnoses and treatment for Black patients further exemplifies how the intersection of crip time and racial time may uniquely hinder the process of obtaining disability accommodations for people of color.[133]

Denying anticipatory accommodations based on normative temporal frameworks could, instead, increase the number of people who will need to call upon disability civil rights laws because they were unable to obtain accommodations earlier that may have prevented the disabling effects of an impairment. Thus, in some respects, the anticipatory accommodations framework is analogous to benefits in statutes outside of antidiscrimination law that provide early access to services to treat health conditions even if those conditions never meet the ADA’s definition of “disability.” Examples of such benefits include the Early and Periodic Screening, Diagnostic, and Treatment benefit available to Medicaid-eligible children and youth, and the early intervening services available to infants and toddlers at risk of developmental delay.[134]

Furthermore, the anticipatory accommodations framework may be especially salient for communities of color given the considerable racial disparities in exposure to potentially disabling circumstances. Consider Gray, which arose in response to workers’ efforts to obtain health and safety precautions during the peak of the COVID-19 pandemic. During the pandemic, Black and Hispanic workers were at significantly increased risks due largely to overrepresentation in essential jobs with a greater chance of exposure; disparities in healthcare access and underlying comorbidities; and economic vulnerability, making it harder for workers to take leave as needed for their health and safety.[135] Similar racial disparities exist in the context of childhood exposure to lead, as non-Hispanic Black children have three times the rate of elevated blood lead levels as White children.[136] Additionally, at least one court has held that “exposure to traumatic events” such as neighborhood violence or experiences of racial discrimination “might cause physical or mental impairments that could be cognizable as disabilities” under the ADA and Section 504.[137] Students in the Compton Unified School District in south central Los Angeles alleged they experienced complex trauma that is presently disabling, but one can readily imagine a claim that exposure to trauma among marginalized groups implicates future disabilities even before such exposure has manifested in a present impairment.[138]

Consider also the existence of racialized systems and institutions that give people of color greater odds of facing future disabilities and anticipating they may need accommodations. For example, the carceral system, in which people of color are dramatically overrepresented, may produce disabilities in a myriad of ways.[139] It may produce obesity for various reasons, ranging from the institutional constraints on access to healthy food and freedom to exercise to the chronic stress that many may experience from being in the carceral setting.[140] It may produce physical and mental health disabilities due to pervasive violence within jails and prisons.[141] Carceral institutions that use solitary confinement and similar practices may systematically produce mental health disabilities, as demonstrated by the devastating toll on Kalief Browder’s mental health from spending two years in solitary confinement and his eventual death by suicide at age twenty-two.[142] Browder himself wrote an essay arguing that many who experience solitary confinement, prison violence, and other harms resulting from the carceral setting acquire mental health disabilities as a result and that, in the absence of family support or health insurance, those whose mental health needs remain unmet upon release face greater likelihood of returning to prison.[143]

The disabling and life-shortening consequences of the carceral system are not limited to the person who is incarcerated. Browder’s mother died shortly after he did, with her surviving child claiming that “[t]he stress of fighting for justice and the pain over her son’s death literally broke [his] mother’s heart, resulting in her premature death at age 63 from complications of a heart attack.”[144] The Browders’s story reflects the realities that a person is more likely to be in disabling carceral structures if they are a person of color and that these institutions systemically produce disabilities and serious health risks not only for those in the system, but for the loved ones who are also affected by mass incarceration.

Even when people of color are not overrepresented in a particular setting, institution, or system, racial discrimination may be otherwise pervasive in that context and contribute to the production of future disabilities. Consider the research finding that experiences of racial discrimination in settings like school, work, and places of public accommodation are associated with greater bodily pain.[145] Each of these settings comes with heightened social scrutiny for people of color and, as I describe in prior work, researchers have found that discriminatory experiences within them are associated with greater pain and pain-related disabilities, like musculoskeletal conditions.[146] Even being exposed to racial subordination that another person experiences may contribute to future pain-related disabilities.[147]

The examples above highlight that the anticipatory accommodations framework can be an especially valuable analytical tool for communities of color, particularly given racial disparities in who enters potentially disabling systems and other forms of racial subordination.[148] These examples further underscore an overarching point: that defendants are often both in a position to create or control the systemic risks that might produce future disability (e.g., controlling living and working conditions) and to grant or deny any accommodations that are needed to navigate such disability.[149] This institutional power to produce future disabilities by denying anticipatory accommodations can be understood as a variation of Sarah Lorr’s observation that the denial of disability accommodations can reinscribe disability status.[150] Anticipatory accommodations claims might mitigate that power imbalance, further signaling their usefulness.

2.   Challenges of Anticipatory Accommodations

Despite these important values, three primary challenges emerge: (1) a definitional challenge, (2) the challenge of articulating an entitlement to rights for which the basis is speculative, and (3) the challenge of using laws meant to destigmatize disability in a manner that may achieve the opposite and undermine the laws’ aims.

First, one potential obstacle to claims drawing upon the anticipatory accommodations framework is meeting the legal definition of “disability.” Though the definition is intended to be understood broadly, litigants pursuing claims drawing upon the pre-impairment anticipatory accommodations framework seem likely to face the same outcome as the plaintiff in Gray. With no impairment yet evident, let alone an impairment that the plaintiff alleges substantially limits a major life activity, such allegations likely fail to meet even the deliberately generous definition of disability under the ADAAA. These cases also suffer from the “missing impairment problem” that Doron Dorfman argues occurs when an individual “claim[s] disability before they develop an impairment,” and thus “use[s] the term disability as a metaphor for disadvantage.”[151] Dorfman distinguishes between “a social problem that may cause an impairment in the future,” for example, unsafe working conditions, and “an impairment in and of itself,” cautioning that conflating the two fails to capture disability as a nuanced, “interactive process between the individual, the impairment, the person’s bodymind, and the environment.”[152]

By contrast, allegations of disability in post-impairment anticipatory accommodations cases are well placed to succeed under Bragdon as long as the plaintiff sufficiently alleges that their impairment substantially limits a major life activity. Notably, Lonergan and Darby avoid confronting the definitional question left unresolved in Bragdon of whether an impairment with only future effects on a major life activity falls within the scope of the ADA.[153] Courts may not have to confront that question. My own research has yet to uncover examples of a physical or psychological condition that has negative future effects on a major life activity but has no such effects in the present. To the extent there exists such a condition, these circumstances more closely reflect the pre-impairment scenario. That is, an impairment that does not impair yet seems not to be an impairment at all.[154] Thus, the definitional challenges that exist in the pre-impairment context are unlikely to impede a plaintiff seeking post-impairment anticipatory accommodations unless they allege an impairment with solely prospective effects.

Second, a further challenge to the anticipatory accommodations framework is that it begs a threshold question: How far into the future was disability civil rights law meant to stretch? The statute is express about the rights of individuals with present and past disabilities, but many people “move in and out of” disability during the course of their lives.[155] Furthermore, part of embracing the social model, as the ADA does,[156] also means recognizing that an impairment that may not be disabling today could be disabling in the future—or the reverse—based in part on how society responds to the impairment. The ADA captures this porousness to an extent by providing that impairments that are episodic or in remission meet the definition of a disability if they “would substantially limit a major life activity when active,” but even this provision would not capture an impairment that has yet to begin.[157] The reality is that claiming rights under a statute that explicitly recognizes rights for individuals with a history of disability but is silent about rights for individuals facing a future disability is complicated. One need not endorse the slippery slope anxiety expressed by Justice Rehnquist in Bragdon to acknowledge the complexities of ascribing legal rights based on a protected trait that may never arise for the individual.

Ultimately, it may be that existing disability civil rights statutes are not apt for fully capturing how a person can move in and out of impairment and disability in unpredictable, nonlinear, and nonchronological ways. Law and legal interpretation generally force the sorting of legal rights by time and temporal frameworks.[158] This includes disability civil rights law, as illustrated by the Court’s recent decision in Stanley v. City of Sanford. In Stanley, a retired firefighter sued the city defendant to challenge a policy change that limited health insurance benefits for workers who retired early due to disability.[159] While the city previously provided health insurance up to age sixty-five for both employees who had worked for twenty-five years and those who retired earlier due to disability, the city later amended its policy to limit benefits to only twenty-four months for employees retiring due to disability.[160] The plaintiff retired early after being diagnosed with Parkinson’s disease, without reaching twenty-five years of service.[161] When she sued to challenge the policy change, the lower courts held that the plaintiff was not a “qualified individual” entitled to sue under Title I of the ADA because she was no longer seeking or holding employment with the city.[162] The Supreme Court affirmed, and, in a fractured opinion, Justice Gorsuch attempted to articulate the temporal windows in which this plaintiff and similarly situated plaintiffs could sue.[163] Four justices agreed with Gorsuch’s assertion that similar plaintiffs could state a claim that they were subjected to a discriminatory compensation decision if they sued while they were disabled but before they retired.[164] For the plaintiff in Stanley, suing when the city changed its policy in 2003 would have been too early because she was not yet disabled, but suing in 2018 after she retired was too late because she was no longer seeking or holding employment with the defendant.[165] Instead, the discussion suggests the plaintiff had the two-year window in which she was newly diagnosed (and likely focused on navigating her condition within crip time amidst continuing to work)[166] to state a claim before she would forever lose the chance.[167] Justice Jackson critiques her colleagues for imposing “a strict limitation on the temporal reach of Title I’s protection” inconsistent with the text of Title I and the law’s purpose.[168]

Even beyond Stanley’s articulation of temporal limits on plaintiffs’ claims, federal disability civil rights law endorses various temporal norms. For example, the statute itself uses linear understandings of time to demarcate the definitional boundary between present and past disabilities.[169] Additionally, courts tend to conceive of accommodations as reasonable or not based on the extent to which they disrupt normative expectations about pace and scheduling.[170] Ellen Samuels draws attention to the “strange arithmetic” of temporal expectations for full-time work: “[M]aybe for every eight hours you work, you accrue one sick hour. . . . It’s never a one-to-one ratio: you have to work hard to earn the time to be sick.”[171] Given these norms, “[c]ourts are skeptical of proposed accommodations that change time standards,” such as “accommodations regarding attendance policies, leaves of absence, reduced-hour schedules, etc.”[172]

The deeply complex relationship between disability, time, and the future is arguably good reason for rejecting strictly linear timeframes for determining who has a legal right to disability accommodations and what those accommodations must provide. Even in proposing a theoretical framework for analyzing claims that seek disability accommodations “pre” and “post” impairment, I recognize that the porousness of this boundary makes perfect line drawing impossible. However, given the challenges with the pre-impairment anticipatory accommodations framework articulated in this Article, I contend that for those people in temporally liminal spaces who move in and out of impairment, it may be even more important to decenter conventional rights-based legal remedies and doctrines. In such cases, broader structural approaches less contingent upon temporal frameworks are more warranted.

For example, Shirley Lin has called for a structural approach in scholarship concerning “mass accommodations” that are not contingent upon individualized proof of disability.[173] Public health interventions similarly counsel in favor of systemic interventions to protect whole populations.[174] Moreover, existing government agencies are already tasked with preventing systemic exposure to circumstances that could result in specific health conditions or disabilities, such as the U.S. Environmental Protection Agency and the Occupational Safety and Health Administration, though these agencies have seen significant rollback in their resources and regulatory activity during this presidential administration.[175] This Article returns in Part IV to a discussion of structural interventions for those whose need for support does not neatly fit within the temporal confines of disability civil rights law.

Third, a further challenge of the anticipatory accommodation framework is that, to varying degrees based on the theory of harm articulated, there is at least some risk that claims brought under this framework may invoke the safeguards of a law meant to destigmatize disability in a manner that risks reinforcing disability stigma instead and undermining the law’s antisubordinative potential.[176] The pre-impairment framing in particular carries these risks because where an individual has no impairment yet, a request for disability accommodations is essentially only a request for protection against the possibility of becoming disabled. The discussion below explores how and under what conditions the anticipatory accommodations framework may have such stigmatizing externalities and examines the extent to which such risks can be mediated by more nuanced legal argument and interpretation.

In considering the likelihood that the anticipatory accommodations framework may reinforce disability stigma, I draw distinctions between the theories of harm underlying such claims and stress the importance of nuance and context. Some may frame the harm of being denied accommodations for future disabilities as a heightened risk of illness or poor health. That harm does not sit easily within disability civil rights doctrine for the reasons articulated above, but it reflects concerns shared by disabled and nondisabled persons alike and need not depend on ableist notions that the existence of disability and disabled people is what needs cure or elimination. It is not inherently ableist to want to avoid being sick or in poor health, as most people do.[177] Yet, there is also potential for fears about sickness or poor health to be based on unwarranted generalizations that all disabled people or all people with certain disabilities are ill. It is this very risk of unwarranted presumptions that underlies many of the law’s specific protections against discrimination.[178] Thus, while people with and without disabilities can indeed seek protection from becoming ill or unhealthy without reinforcing ableism, doing so based on reductionist assumptions about the relationship between disability and health risks reinforcing ableism instead. Even when one is correct about the extent to which a particular disability is associated with sickness or poor health, Jasmine Harris cautions that “[w]hen disability operates as a negative health outcome alone, it reinforces disability as a ‘bad difference’ and an ‘impairment’ through a medicalized lens[,]” obscuring the extent to which disability is “an identity and demographic, one that also disproportionately experiences health inequities.”[179]

Other anticipatory accommodations claims may be rooted in the notion that it is a harm to be denied accommodations for future disabilities because the denial may place people within a group that is marginalized and disfavored within an ableist society. Under this articulation of harm, the request for accommodations to mitigate the possibility of becoming disabled in the future is protection from society’s marginalization of disabled people. Even if this theory similarly does not fit neatly within the doctrine because of the definitional and scope issues raised above, it too avoids relying on a notion that disability and disabled people are the “problems” to be solved.

Compare these theories of harm to those that treat disability as a “bad difference” that “by itself or intrinsically[] makes you worse off.”[180] For example, stigma regarding autism has grown in recent years, as reflected by Robert F. Kennedy Jr.’s unsupported generalizations that youth with autism “will never pay taxes, they’ll never hold a job, they’ll never play baseball, they’ll never write a poem, they’ll never go out on a date,” and “[m]any of them will never use a toilet unassisted.”[181] Consider if the workers in Gray had sought workplace accommodations under the ADA to prevent any future children they have from being born with autism, invoking the presumed harms that Kennedy’s comments raise.[182] Stigma can be rooted in misinformation as much as in malice. Indeed, “unwarranted assumptions” that certain people with disabilities “are incapable or unworthy of participating in community life” is a paradigmatic example of disability discrimination.[183] Thus, even absent intent to do harm, claiming a right to anticipatory accommodations based on the misinformed generalization that disabled life is inherently and necessarily a worse life can indeed reinforce the stigma that disability civil rights law aims to dismantle and can diminish the rich life experiences of people with disabilities. Such framing further risks reducing disability to “both conceptual harm and legal solution,” with disability treated as valuable mainly for the legal rights it engenders and not as a meaningful identity in one’s life.[184]

Furthermore, basing one’s assertion of rights on an effort to avoid the possibility of future disabilities is more likely to arise from what Elizabeth Emens calls an “‘outside’ view[]” of disability, which commonly considers disability as “an unhappy place created by an individual medical problem for which the law sometimes provides special benefits to that individual.”[185] By comparison, Emens describes an “inside view” from which “disability often looks like a mundane feature of a no-less-happy life, rendered inconvenient or disabling largely by interactions with the surrounding environment, which legal accommodations alter in ways that sometimes provide benefits to many.”[186] While a person with a disability might seek an accommodation to avoid acquiring an impairment that could lead to a different disability in the future, the pre-impairment anticipatory accommodations framework seems especially likely to push out disabled voices by amplifying the outside view of disability.[187]

The result can be dehumanizing, because many people find disability to be a meaningful part of their identity while nonetheless recognizing that navigating daily life as a person with a disability is made more challenging by ableist norms and structures.[188] Arguments from an inside view of disability can be understood as a protective response to society’s failures to adequately support people with disabilities, rather than as disdain for disability itself. But rights claiming from an outside view could evoke the warning of Dorothy Roberts and Sujatha Jesudason that “[l]ocating the problem inside the disabled body rather than in the social oppression of disabled people leads to the elimination of these bodies becoming the chief solution to impairment.”[189]

The fear of future disabilities has already been mobilized in environmental justice and other movements.[190] As Britney Wilson astutely points out, proponents of the environmental justice movement at times draw upon language that identifies and stresses the prospect of disability as a harm caused by weak protections against environmental toxins.[191] Such arguments draw upon the “implicit assumption that we want healthy environments so that we do not end up damaged (i.e. disabled).”[192] The context of environmental toxins that are disproportionately situated within marginalized communities illustrates how advocates may amplify fears of disability when challenging environmentally unjust practices.

Consider the “dysgenic state” that Khiara Bridges identifies as resulting from the racialized siting of toxic materials. She argues that the dysgenic state enables “processes that harm the health of fetuses and then compel[s] pregnant people to carry these pregnancies to term.”[193] While Bridges does not prescribe whether or how law should be used to challenge the dysgenic state (that is not the stated aim of the article) one can readily imagine how a challenge to the dysgenic state might draw upon the pre-impairment anticipatory accommodations framework. For example, such a claim might seek reasonable modifications under Title II to prevent exposure by a public entity to environmental toxins that could lead to an impairment and, in turn, lead to a future disability in any child the pregnant person bears. Bridges does not make this claim, and I caution others against using disability civil rights law to respond to such circumstances. Not only would using disability civil rights laws’ provisions in this way risk the dehumanization and demeaning of disability discussed above, but it is inherently too small of a response to the problem Bridges describes. While one could seek individualized protection from the harms stemming from exposure to environmental toxins by claiming a right to disability accommodations for oneself—test my water source, screen my blood for toxins—a structural response would claim the rights attendant to environmental regulation—i.e., prohibit the state actor from exposing the community to toxins in the first place. Choosing to adopt the argument implied in Gray in this context—namely, claiming a right to disability accommodations to protect against the possibility of future disability either for a pregnant person or the fetus they carry—risks harm to people with disabilities and the articulation of disability civil rights, and is of little help as a means for challenging the foundational harm of an unsafe environment.

Finally, the anticipatory accommodations framework risks confusing and undermining the law’s antisubordinative potential. Civil rights laws protect individuals from being discriminated against based on a given trait. This goal may be too limited as others have argued persuasively,[194] but undoubtedly the aim of such laws is not to protect the individual from having the trait.[195] Moreover, using disability civil rights law to seek protection from conditions that might be disabling in the future does not help to confront the harmful perception of disability as a “bad difference,” as would a theory rooted in antisubordination principles. Instead of confronting the subordination of disabled people, such a claim largely seeks individualized exemption from membership in the subordinated group.

Furthermore, under disability civil rights laws, a failure to provide reasonable accommodations is itself a form of discrimination.[196] Thus, for a plaintiff to succeed in pursuing such a failure to accommodate claim regarding a future disability, the court would have to conclude that it was discriminatory for the defendant not to provide reasonable accommodations that would enable the plaintiff to avoid becoming disabled in the future. This is counterintuitive for a law that otherwise amplifies the inside view of disability, rather than presenting disability as “something to be avoided, fixed, and eliminated.”[197]

The post-impairment anticipatory accommodations framework arguably does not carry the same risks as the pre-impairment strand because it is not directly about preventing the possibility of future disability. Articulating a right to receive accommodations for a present impairment, even if it is not yet disabling, avoids framing the fact of disability as the harm needing redress. Rather, this version of the framework is about determining how to meet the individual’s needs for the impairment they already have, an aim more reflective of the inside view of disability. Some people with already recognized disabilities may need accommodations to avoid becoming ill or to manage an existing illness.[198] The same is true for an individual with an impairment that may or may not result in a disability in the future. For example, by virtue of already having a precancerous condition—an impairment likely to develop into a disability without further action and one that a court may find is already a disability under the law regardless of whether it results in cancer—a plaintiff like that in Lonergan (and Darby)[199] seems more likely to be seeking accommodations from an inside view of disability. Such plaintiffs are arguably “previvors,” whom Valerie Gutman Koch defines as “not yet sick” individuals who need preventative action to maintain their present health and who embrace “a pre-illness identity.”[200] Such individuals thus may already be “inside” disability, or at least in a “liminal space” between impairment and disability,[201] unlike a person without an impairment who faces a much more remote possibility of acquiring a disability in the future.

People who experience “weathering” due to chronic stress may also be in the liminal space between impairment and disability and may need accommodations not to specifically avoid becoming disabled in the future but to support their present health. A term thus far largely used by public health experts, weathering represents the negative wear-and-tear on bodily systems stemming from chronic stressors, such as financial insecurity, racial discrimination, and other forms of subordination or hardship.[202] It manifests in “the aging ahead of schedule of cells, tissues, and organs across body systems including the immune, cardiovascular, metabolic, and neuroendocrine systems,” and “implies that even if the stress-mediated biological processes have not yet resulted in diagnosable disease, . . . they are likely to experience early onset of elevated pre-clinical values on laboratory indices of chronic diseases.”[203] Accordingly, weathering can cause impairments that may be disabling in the future, and this onset of illness ahead of schedule evokes Ellen Samuels’ observation that “[c]rip time is time travel.”[204]

Consider the life and too-soon death of racial justice activist Erica Garner. Garner devoted her life to leading the movement for policing reform following the 2014 death of her father, Eric Garner, due to an illegal chokehold by a New York City police officer.[205] Garner’s steadfast efforts amid her grief came at steep personal cost. Garner had a heart attack shortly after she delivered a child named after her father, “with doctors saying the pregnancy stressed her already enlarged heart.”[206] A few months later, she suffered a second heart attack triggered by asthma, resulting in brain damage due to the lack of oxygen.[207] Just weeks before her death, Garner shared: “I’m struggling right now, with the stress and everything,” adding that “[t]he system beats you down to where you can’t win.”[208] Garner never made it to the future that was waiting for her, and many have pointed to Garner’s strained heart and early death as an illustration of weathering’s effects. Public health scholar Arline Geronimus pointedly asks: “But why did she have an enlarged heart at her young age?”[209] As Khiara Bridges explains, weathering due to chronic stress makes pregnancy especially dangerous for Black people in the United States and likely to lead to future disabilities or death.[210] Although weathering does not stem only from racial discrimination, the early onset of a heart impairment contributing to Garner’s death reveals a dangerous pathway between experiences of racial discrimination and serious illness, disability, and death.[211] The post-impairment accommodations framework captures the need for supports for people like Garner who may be in the process of becoming disabled, including the slow disablement that can follow from racial discrimination.

With these cautions and reflections on the anticipatory accommodations framework, the Article next considers the preemptive disability stigma framework’s application.

III. Preemptive Disability Stigma

The ADA broadly prohibits employers from discriminating on the basis of disability against an individual who is qualified to perform the essential functions of the position,[212] in addition to the general nondiscrimination provisions of the ADA and Section 504.[213] This Article uses the term “preemptive disability stigma” to describe cases in which an individual is treated adversely in the present because another person believes the individual is likely to become disabled in the future. A typical example is when an employer believes that an employee is likely to become disabled because of an existing health condition or exposure to circumstances that could be disabling and fires the employee in anticipation of their future disability.[214]

Some instances of adverse treatment may stem from the employer’s belief that a worker will become disabled and require costly accommodations in the future. Therefore, the employer’s conduct may appear on the surface less rooted in disability stigma than other forms of discrimination. But such economic rationales have at their core a presumption that disabled people bring less value to the workplace—and therefore have less value to a capitalist society—because of their disability, and thus treat the prospect of future disability as “universally discrediting.”[215] It is for this reason that ableism is commonly understood as attributing value to human beings based on the extent to which their bodies and minds are economically productive.[216] I therefore include adverse treatment based on such generalizations about future disability within the ambit of disability stigma while recognizing more broadly that stigma need not involve invidious animus.[217]

Claims involving preemptive disability stigma generally arise under two provisions: (1) the “regarded as” prong of the definition of “disability,” and (2) the associational discrimination theory of disability discrimination. The discussion below describes the use of these provisions and then analyzes the extent to which these applications of the preemptive disability stigma framework are well-situated within disability civil rights law.

A.   Regarded as an Individual Who Will Have a Disability in the Future

The ADA’s[218] definition of “disability” includes “an individual . . . being regarded as having such an impairment,” as further defined to mean an individual who “establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”[219] The extension of the ADA’s safeguards to individuals who satisfy this “regarded as” prong of the definition does not apply to “impairments that are transitory and minor,” where transitory means an “impairment with an actual or expected duration of 6 months or less.”[220] However, aside from this discrete temporal limitation, the statute is not express as to whether the “regarded as” prong is limited to a person being regarded as having a disability in the present. Multiple cases drawing upon the preemptive disability stigma framework claim that the plaintiff falls within the “regarded as” prong because they are regarded as someone who will have a future disability. These claims have fared poorly in courts to date, however, partly due to flawed interpretations of the statutory text and an analysis that disregards the ADA’s purpose.

The most detailed analysis of whether the “regarded as” prong applies to adverse treatment of an employee based on the prospect of the employee acquiring a future disability is in Equal Employment Opportunity v. STME, LLC. I focus particular attention on the Eleventh Circuit’s decision in STME because several subsequent courts have largely adopted its analysis.[221] In STME, Kimberly Lowe, a massage therapist, sought time off from work to visit her sister in Ghana.[222] Though a manager approved the leave request, the company owner fired Lowe three days before the trip “out of concern that ‘she would be infected with Ebola if she traveled to Ghana’ and that she would bring it home and infect [other] employees and clients upon her return.”[223] The Equal Employment Opportunity Commission (EEOC) sued on Lowe’s behalf, alleging that the employer discriminated against Lowe under the ADA because it (1) regarded her as disabled and (2) because of her association with individuals in Ghana whom the employer believed to be individuals with disabilities.[224] Lowe sued on her own, asserting race and national origin discrimination because her employer allegedly “did not want her, ‘a white American citizen,’ to ‘interact with black Africans.’”[225] Although the EEOC focused its lawsuit on the alleged disability discrimination, the facts underlying both lawsuits implicate broader racialized assumptions and stigmatization regarding future disability.[226]

With respect to the “regarded as” claim under disability law, the employer argued that, at the time the owner fired her, he “did not perceive Lowe as presently having Ebola; rather, he perceived her as having the potential to become infected with Ebola (i.e., become disabled) in the future.”[227] The employer argued that an adverse action based on a perception that the employee is “‘predisposed’ to becoming disabled in the future . . . does not fall under the protection of the ADA,” whereas the EEOC argued that an employer violates the ADA if it discriminates against an individual, even one not currently disabled, if the adverse action is “based upon misconceptions about that person’s potential to become disabled in the future.”[228] The district court sided with the employer, holding that the “regarded as” prong does not extend to cases “in which an employer perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.”[229] By highlighting Lowe’s choice to travel to Ghana, the court further implies a judgment that employers bear less responsibility if their own conduct is based on the worker’s choices and not potentially disabling circumstances beyond the worker’s control.

The Eleventh Circuit affirmed, holding that “the terms of the ADA protect persons who experience discrimination because of a current, past, or perceived disability—not because of a potential future disability that a healthy person may experience later.”[230] The court further held that the ADA’s definition of disability does not apply “where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of overseas travel”;[231] thus, the EEOC’s “regarded as” claim failed.[232] Several courts have followed the reasoning articulated in STME.[233]

The Eleventh Circuit provided multiple rationales for why the text of the “regarded as” prong does not prohibit adverse action based on the employer’s perception that the employee will become disabled in the future, but each of these arguments is unavailing. The court first asserted, correctly, that the “regarded as” prong of the definition of “disability” must be read in the context of the rest of the statutory definition.[234] Recall that the first “actual disability” prong of the definition refers to “a physical or mental impairment that substantially limits one or more major life activities” of the individual.[235] The second “record of” prong applies to an individual with “a record of such an impairment,” and the third “regarded as” prong applies to an individual “being regarded as having such an impairment.”[236] In the Eleventh Circuit’s view, “[i]t is well settled that ‘impairment’ in the first ‘actual disability’ prong . . . is limited to impairments that exist at the time of the adverse employment action and does not include impairments that manifest after the alleged discrimination.”[237] Accordingly, the Eleventh Circuit concluded that “‘impairment’ in the ‘regarded as’ statutory prong . . . has the same meaning as ‘impairment’ in the actual disability prong” because the phrase “such an impairment” must “necessarily refer[] back” to the first prong.[238] Thus, the Eleventh Circuit held that a plaintiff articulating their claims under the “regarded as” prong “must show that the employer knew that the employee had an actual impairment or perceived the employee to have such an impairment at the time of the adverse employment action.”[239]

There is an intuitive logic to the Eleventh Circuit’s reading, but this logic falters upon analysis of the entire context of the statutory definition. In the Eleventh Circuit’s view, the phrase “regarded as having such an impairment” must be read to mean “regarded as having an impairment that exists at the time of the adverse action.” That reading of the phrase “such an impairment” in the “regarded as” prong would logically apply with equal force when the same phrase is used in the “record of” prong; yet extending this interpretation to the latter reveals that the court’s interpretation cannot be correct.

If the phrase “record of such an impairment” were read to mean “record of having an impairment that exists at the time of the adverse action”—as it must under the Eleventh Circuit’s reasoning—then the “record of” prong would be entirely superfluous of the “actual disability” prong.[240] A record of an impairment at the time the employee was fired would simply mean that the employee had an actual impairment at the time of the termination, and there would be no reason for a separate statutory provision specific to people who have a record of a disability. Justice Stevens made a similar observation in his dissent in Sutton, noting that “if the Court is correct that a ‘disability’ exists only where a person’s ‘present’ or ‘actual’ condition is substantially impaired, . . . there would be no reason to include in the protected class those who were once disabled but who are now fully recovered.”[241] The “record of” prong therefore must include individuals who had a disability in the past (and a record of such) but no longer have an impairment at the time of the adverse action, in addition to those for whom the past disability has continued or recurred.[242] The legislative history and agency interpretive guidance confirm this conclusion.[243] With respect to the Eleventh Circuit’s reasoning, the incoherence of its interpretation as applied to a past disability signals that it is unavailing as applied to a future disability. Moreover, a congressional house report for the ADA specifies that

a person who is rejected from a job because of the myths, fears and stereotypes associated with disabilities would be covered under [the “regarded as” prong], . . . whether or not the person’s physical or mental condition would be considered a disability under the first or second part of the definition.[244]

This report’s language thus directly undermines the assertion in STME and subsequent case law that the “regarded as” prong requires that the person have a disability as defined in the first prong of the definition.

Second, the court disagreed with the EEOC regarding whether the statutory language “being regarded as having” could be interpreted to include future disabilities, but its reasoning is again flawed. Admittedly, the most instinctive reading of this language is that “being regarded as having” means “being regarded as having now,” since the verb “having” is in the present tense.[245] Moreover, one might reasonably argue that the text of the “record of” and “regarded as” prongs cannot be meaningfully compared because, while the former omits the verb altogether,[246] the latter explicitly uses the present tense, and only the present tense, in describing an individual who is “being regarded as having” such an impairment. However, the EEOC argued that the Dictionary Act, a law providing guidance on how to construe the language of federal statutes,[247] compels a broader reading since that statute directs that “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise . . . words used in the present tense include the future as well as the present.”[248] Adopting the EEOC’s argument would essentially mean that the “regarded as” prong includes both individuals who are regarded as having a disability in the present and those who are regarded as individuals who will have a disability in the future.[249] Rather than context suggesting otherwise, this interpretation would be consistent with Congress’s recognition that “fear, rather than the disability itself, can be a major factor behind much discrimination.”[250] As one district court has explained, “[R]equiring proof that the defendant regarded the plaintiff as presently limited would allow an employer to refuse to hire an epileptic as long as the job applicant was not having a seizure at the time,” and “Congress clearly did not intend . . . [to limit] the ADA’s protection to instances when the defendant considered the plaintiff’s limitation to be immediate.”[251]

The Eleventh Circuit’s contrary position conflicts with the rules of statutory interpretation established by Congress. The court focused in particular on the language of Section 12102(3)(A), which is the more detailed explanation of the “regarded as” prong to which Section 12102(1)(C), the general definition of “disability,” refers.[252] Section 12102(3)(A) says, in full, that

[a]n individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.[253]

Though the court noted, “it is true that the phrase ‘being regarded as having such an impairment’ contains present tense verbs,” it then highlighted the phrase “she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment” and stated that “that statutory phrase in § 12102(3)(A) contains no present tense verb for the Dictionary Act to carry into the future.”[254] The court thus rejected the EEOC’s interpretation of the Dictionary Act and held that “for an employee to qualify as ‘being regarded as’ disabled, the employer must have perceived the employee as having a current existing impairment at the time of the alleged discrimination.”[255]

The Eleventh Circuit’s analysis is striking because the court acknowledges that the statutory text that is being further defined in Section 12102(3)(A) uses the present tense—even the title of the provision uses the present tense “having.” The court nonetheless disregarded the Dictionary Act’s directive to interpret the present tense to include the future tense because some of the language elsewhere in the provision is written in the passive voice.[256] Nothing in the phrase that the court excerpted for analysis precludes reading the provision as a whole in the present tense, thus including the future tense pursuant to the Dictionary Act. Moreover, the phrase “has been subjected” relates to the point in time when the employer takes prohibited action against the individual, which could be weeks, months, or longer after the point in time in which the employer regards the individual as having an impairment. The time at which the employer subjects the individual to an adverse action has no bearing on whether the employer regards the individual’s impairment to be a current, past, or future impairment. The Eleventh Circuit extolled the plain language of the ADA as near dispositive while failing to adhere to the statute that dictates how the ADA’s text is to be read.

Third, the Eleventh Circuit further justified its rejection of the EEOC’s “regarded as” claim based on the court’s misguided view that “[a]n employer does not fire or otherwise discriminate against an employee ‘because of’ a perceived physical impairment unless the employer actually perceives that the employee has the impairment.”[257] The court cited no case law to support this proposition, but seemingly reasoned that the statutory prohibition of discrimination “because of” disability requires that the employer must know of the employee’s disability in order to discriminate because of disability and therefore the disability must presently exist. This conclusion is incorrect. Although threats to the continued viability of this theory loom, disability civil rights laws capture unintentional discrimination that has discriminatory effects based on disability (often called disparate impact), even without specific knowledge of an individual’s disability.[258]

Moreover, nothing in the language of the statutory provision prohibiting disability discrimination in employment requires that the discrimination be on the basis of the employee’s disability.[259] Whereas text elsewhere in the ADA expressly prohibits discrimination against a “qualified individual with a disability . . . by reason of such disability,”[260] Title I of the ADA, which governs employment, prohibits discrimination against “a qualified individual on the basis of disability.”[261] A provision concerning associational discrimination further states that employers may not discriminate against an individual who is qualified to perform the essential functions of the position “because of the known disability of an individual with whom” the qualified individual “is known to have a relationship or association.”[262] Distinct from whether this provision is apt for addressing claims involving future disabilities, a topic discussed in the next Section, its very existence further discounts the Eleventh Circuit’s assumption that an employer cannot discriminate because of disability “unless the employer actually perceives that the employee has the impairment.”[263] The employer may have no knowledge or perception about the employee’s disability status and still unintentionally engage in conduct that discriminates on the basis of disability, or the employer may perceive that someone other than the employee has a disability and treat the employee adversely as a result—either scenario would violate the ADA.

Fourth, the Eleventh Circuit contended that its interpretations are consistent with the EEOC interpretive guidance that “a predisposition to developing an illness or disease is not a physical impairment”; however, this guidance is inapposite.[264] The relevant guidance explains the meaning of a “physical or mental impairment” and concerns whether a predisposition to an illness is actually an impairment.[265] However, the EEOC did not argue that Lowe had an actual impairment or even that she was predisposed to developing an impairment.[266] The EEOC argued that Lowe’s employer thought she was going to contract a disabling condition if she traveled to Ghana.[267] The statute itself makes clear that an employee can be regarded as having an impairment even if the impairment is perceived rather than actual, and even if the employer does not perceive the impairment to limit a major life activity.[268] Thus, Lowe need not have actually had a physical impairment in order for the “regarded as” prong to apply based on her employer’s (erroneous) perceptions.

Lastly, the Eleventh Circuit made passing reference to Congress’s purpose in enacting the ADAAA, but close examination of the law’s purpose and legislative history reveals why STME is inconsistent with the ADAAA. A house report issued in connection with the ADA in 1990—before Congress needed to correct courts’ limited view of the scope of the law by amending it in the ADAAA—confirms that Congress was concerned in general with broad stereotypes, generalizations, and assumptions about disability and that it gave no indication an employer could simply avoid liability by discriminating based on disability stereotypes preemptively.[269] The House Report gave specific examples of when the “regarded as” prong would cover an individual, such as “if an employer refused to hire . . . [a] person because of a fear of ‘negative reactions’ of others to that person” or an employer “perceived that [a job] applicant had an impairment which prevented the person from working.”[270]

Congress’s rationale came from the Supreme Court’s acknowledgment in School Board of Nassau County v. Arline, a case under Section 504, that “although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling.”[271] For instance, the House Report gave an example of a person with severe burns who may not consider themselves to be impaired but who may be substantially limited in employment “because of the attitudes of others” reacting to the burns.[272] As the Court explained in Arline, “[A]n impairment might not diminish a person’s physical or mental capabilities, but could nevertheless substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment.”[273] Thus, some courts have had no trouble reaching the straightforward conclusion that “the ADA encompasses . . . adverse actions motivated by prejudice and fear of disabilities,”[274] although “regarded as” claims are not limited to such circumstances.[275] Far from suggesting that Congress intended for the “regarded as” prong to apply only to individuals who are perceived as presently having an impairment, the legislative history clarifies that, among other bases of discrimination, Congress was concerned broadly with adverse treatment that stemmed from stigma about disabilities.[276] Certainly, members of society prejudge and preemptively stigmatize others based on negative views about disability in general or about a specific disability. Congress intended to protect against adverse actions based on disability stigma, and the judicial constriction of this protection in STME and other cases undermines this key legislative aim.

Though arising in response to the Ebola epidemic, STME’s analysis has had a broad and lasting impact on the jurisprudence of future disabilities. In several cases arising during the COVID-19 pandemic, plaintiffs have alleged they were regarded as disabled by their employer based either on a possible exposure to COVID-19 or because of the plaintiff’s unvaccinated status.[277] These plaintiffs did not argue they actually had a disability due to COVID-19 infection, as the plaintiff in Gray did after he contracted COVID-19, but that they were regarded as such. The claims generally would have faltered because of insufficient evidence that exposure to COVID-19 alone, as compared with the development of long COVID-19 or other conditions, constitutes a disabling impairment (or even an impairment at all),[278] which remains an unsettled question among courts.[279] And the use of disability civil rights law in this context is misguided for reasons beyond the definitional problem.[280] Courts nonetheless have generally adopted the approach in STME and held that the employer must regard the employee as having a disability at the time of the adverse employment action.[281] Despite its flawed textual arguments and failure to account for the law’s legislative history and purpose, STME has had staying power.

B.   Associational Discrimination

As noted earlier, employees who are qualified to perform the essential functions of the position are protected from being excluded or otherwise denied a job or benefit “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”[282] Thus, preemptive disability stigma claims can also be analyzed under the associational discrimination provision, where the employer’s fear of future disability is based on the employee’s association with someone else. As with the “regarded as” theory, the associational discrimination theory as applied to future disabilities has fared poorly based on courts’ weak textual analysis and narrow understanding of the law’s purpose.

Courts generally consider three types of associational discrimination claims.[283] Under the “expense” category, an employer treats an employee adversely because the employee is associated with a disabled individual who is covered under the employee’s health insurance or other benefits, costing the employer more.[284] Under the “disability by association” category, the employer treats the employee adversely because they fear the employee will either contract a communicable condition or inherit a genetic condition from a disabled person the employee is associated with, like a spouse or a parent.[285] Under the “distraction” category, the employer treats the employee adversely because the employee is distracted from giving work their full attention due to their caregiving responsibilities for a person with a disability.[286]

STME reflects the “gravamen of [disability by association] claims [in which] the employer takes adverse employment action against an employee because of a concern that, in the future, the employee will develop the same disability as the disabled associated person.”[287] The EEOC alleged that Kimberly Lowe’s employer fired her due to a fear she would contract Ebola in Ghana by associating with people in Ghana with the condition.[288] In response, the employer argued that Lowe had not yet associated with anyone in Ghana and that the owner who terminated her did not know that the individuals with whom Lowe would associate during the trip had Ebola (or another disability).[289] The district court agreed, and its finding that the owner was unaware of any association between Lowe and disabled individuals in Ghana at the time of the termination “because any such association had not yet occurred” proved to be “fatal to the EEOC’s prima facie case.”[290]

The district court further held that the employee “must be ‘known to have [present tense] a relationship’ or association with a person known to have a disability in order for that relationship to serve as a basis for association discrimination.”[291] Under this interpretation, the association or relationship has to be in the present. However, the district court then undermined its own interpretation, stating “[i]t is evident by the plain language of the ADA and binding case law that an employer must know of a presently existing or past association with a disabled person (or persons) at the time of the adverse action to fall within the ADA’s association discrimination provision.”[292] STME thus again, as with the “regarded as” prong, endorsed an interpretation of text that only uses the present tense to include the past but exclude the future, without explanation for the inconsistency.

The Eleventh Circuit affirmed without analyzing the district court’s interpretation, but the EEOC argued on appeal, as it did for the “regarded as” claim, that the Dictionary Act requires the ADA’s use of the present tense to include the future tense unless context indicates otherwise.[293] Under this reading, the application of the associational discrimination provision to an individual who is treated adversely “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association”[294] would include an individual who is treated adversely because of the known disability of an individual with whom the employer knows the qualified individual will have a relationship or association. Lowe’s employer seems to have been operating on the overgeneralized stereotype that association with any person in Ghana poses a risk of contracting Ebola, but consider if Lowe had expressly told her employer that she was going to Ghana in three days to visit her sister who was sick with Ebola. Discrimination based on that future association falls well within the text of the ADA as properly interpreted pursuant to the Dictionary Act. The Eleventh Circuit made no effort to engage with the EEOC’s arguments, but its flawed interpretation of the Dictionary Act as applied to the “regarded as” prong suggests it gave little credence to these arguments about how the associational discrimination provision must be read under the law.

As further rationale, the district court also held that “even if a plaintiff could bring an association discrimination claim for a potential future association with a disabled individual,” the EEOC’s claim would fail because Lowe disclaimed any intention to associate with individuals with Ebola during the visit and “[t]he ADA does not establish a cause of action for discrimination against an individual who associates with people who are merely regarded as disabled.”[295] The district court appears to read the phrase “known disability” to mean that an employer cannot “know” of a disability that does not exist, thus the individual associated with the employee must actually have a disability.[296]

Again, the Eleventh Circuit did not address the district court’s analysis, instead affirming based on the view that the association between Lowe and unknown individuals in Ghana who had Ebola was too casual and attenuated to support an associational discrimination claim.[297] However, the EEOC had argued that the district court’s analysis “read the ‘regarded as’ portion of the definition out of the statute” by “requiring the existence of an actual disability, and refusing to recognize a cause of action for discrimination based on association ‘with people who are merely regarded as disabled.’”[298] The EEOC identified case law holding that a plaintiff may state an associational discrimination claim based on association with a person regarded as having a disability even if the person associated with the plaintiff does not in fact have a disability.[299] Consistent with the EEOC’s position, the rationale underlying these cases is that the individual associated with the plaintiff may be regarded as having a disability or have a record of a disability since the definition of “disability” includes the “regarded as” and “record of” prongs in addition to the “actual disability” prong.[300] Accordingly, the “known disability” of an individual associated with the plaintiff may satisfy any of the three prongs and that individual need not have a disability at the time the plaintiff is treated adversely.

C.   Interrogating the Framework

The preemptive disability stigma framework is arguably much better suited for resolution within disability civil rights law than the anticipatory accommodations framework, yet claims evoking it have fared poorly. The discussion below makes the case for judicial recognition of this framework as properly falling within the scope of disability civil rights laws.

The preemptive disability stigma framework is not only aligned with the purpose of disability civil rights laws, but it is necessary to effectuate the laws’ aims. As discussed in the preceding sections, the ADA includes provisions that do not require an individual protected by the law to actually have a disability. The law may protect an individual if they have a disability that has not continued, if they are misperceived as having a disability they never had, or if they are simply associated with an individual with a disability. This expansiveness of the ADA’s protections bolsters the conclusion that an individual who does not have a disability yet can likewise be included within the law’s scope, provided disability is the reason for their adverse treatment. The framework aligns with the long-accepted principle that one can be harmed by disability stereotypes even without having (or having had) a disability.

To underscore why the preemptive disability stigma framework fits within the doctrine, consider a paradigmatic example of distraction-based associational discrimination: An employer refuses to hire a job applicant because they learn the applicant’s spouse has cancer, and the employer fears the applicant would miss work often because of caregiving responsibilities for their spouse.[301] Consider instead that the job applicant reveals their spouse has a family history of cancer, and the employer refuses to hire the applicant because of a fear the applicant’s spouse may develop cancer in the future, requiring the applicant to miss work to care for their spouse. In either scenario, the applicant experiences an adverse employment action because of the employer’s assumption that living with cancer places a burden on one’s spouse that will distract the spouse from being competent at work—that assumption is about the cancer and it is unchanged by the fact that the applicant’s spouse does have cancer in the first scenario but does not have cancer at the time of the second. An interpretation of the ADA that precludes coverage for the latter disability-based assumption leaves many people who are in fact discriminated against “because of” disability without the recourse the law intended.[302]

As with the anticipatory accommodations framework, there are heightened racial stakes underlying the preemptive disability stigma framework that underscore its practical and analytical value. For example, one can find preemptive disability stigma in the “disability by association” that often arises from racialized fears of specific contagious conditions. The EEOC made a claim in STME that Lowe was regarded as someone likely to contract a disabling condition if she associated with people in Ghana, and Lowe’s own allegations contended that racial and national origin discrimination were at the root of the employer’s assumptions she would become disabled upon traveling to Ghana.[303] In another stark example, Donald Trump’s repeated comments during his first presidential administration associated COVID-19 with China and thus “racialize[d] the disease so that it’s not simply biological but Chinese in nature.”[304] The messages prompted the anti-Asian backlash and attacks that experts had feared, and this bigotry often took the form of assuming that Asian people in America had acquired or would soon acquire COVID-19.[305] These dynamics essentially placed a wide breadth of the community at risk of preemptive disability stigma by virtue of an assumed association between COVID-19 and Asian people, foods, and businesses.[306] America’s troubling history of assuming disability based on national origin further demonstrates the unique racial stakes underlying the development of this analytical framework.[307]

Consider also how racialized preemptive disability stigma may further intersect with sex- and gender-based stigma. Sidney Abbott’s dentist refused to treat her in his office based on the knowledge that she was HIV-positive.[308] Imagine if the dentist instead had based the adverse treatment on an assumption that a patient, by virtue of their race and sex, was likely to acquire HIV infection or AIDS. Or imagine that an employer refuses to hire or terminates a Black gay man because they believe that Black gay men are more likely to engage in behavior in their personal lives putting them at risk of acquiring HIV or another disability that could interfere with their work. LGBTQIA+ communities of color are subjected to race- and sex-based intersectional stereotypes about sexual proclivity and irresponsibility regarding personal health that could lead to a distinct form of preemptive disability stigma.[309] These examples illustrate the complex forms of subordination that may go unaddressed if courts resist this category of claims. As I have previously argued, facilitating legal avenues to challenge intersectional forms of discrimination is vitally important to fully realizing the potential of antidiscrimination laws, and the preemptive disability stigma framework’s aptness for addressing complex stigma meaningfully advances that purpose.[310]

Thus, the challenges with the preemptive disability stigma framework are not that the framework itself may undermine the correct interpretation of the law or risk harming people with disabilities, as I have argued with respect to the anticipatory accommodations framework. Instead, the primary challenge is that courts have misunderstood and unduly narrowed the legislative purpose of the ADA. Moreover, courts’ failure to fully effectuate the laws’ purpose by recognizing claims under the preemptive disability stigma framework has become embedded in the jurisprudence because of inertia following STME’s early analysis of the issue. Several lower courts have now simply replicated STME’s flawed reasoning without careful analysis of their own, stifling claims that should be considered viable under disability civil rights laws.

Time simply cannot provide shelter for an employer who chooses to proactively stigmatize based on their presumptions about disabled futures.[311] Indeed, EEOC regulatory guidance explains that the determination of whether an individual is a “qualified individual” within the meaning of the law “is to be made at the time of the employment decision” and “should be based on the capabilities of the individual with a disability at the time of the employment decision.”[312] The guidance further explains that the determination “should not be based on speculation that the employee may become unable in the future” to perform the essential functions of the position.[313] This position is consistent with guidance from a congressional report on the issue.[314] The law thus prohibits an employer from rejecting a worker as unqualified based on speculation about their future capabilities.

Yet the narrow interpretation courts have adopted significantly weakens the law’s guardrails against forms of disability stigma that harm people who have disabilities now. An employer who refuses to hire or who terminates a person based on merely the prospect that they will become disabled in the future is relying on stereotypes, generalizations, fears, and assumptions about disability that harm individuals who currently have disabilities.[315] Congress explicitly meant to address this form of “discrimination on the basis of mythology.”[316] Yet the case law to date in cases implicating the preemptive disability stigma framework gives employers an incentive to discriminate based on disability early—so early, in fact, that the employee or an individual with whom they are associated need not have an impairment that could be disabling. Such case law enables these proactive discriminators to avoid liability under disability civil rights law. Furthermore, courts’ narrow interpretation could make some individuals more wary of associating with people with disabilities for fear of being fired or losing job opportunities. Kimberly Lowe was fired simply for planning to travel to Ghana where her employer thought that someone, somewhere in the nation of millions, would have Ebola that Lowe would contract.[317] In dismissing Lowe’s associational discrimination claim, the district court and Eleventh Circuit facilitated the rendering of disability status as a scarlet letter, a result entirely contrary to the laws’ purpose.

Some may worry that the broad scope proposed in this Article will strain court dockets by massively expanding who is considered to be an “individual with a disability” under the ADA, but this fear is misplaced. Firstly, concerns that the interpretation I endorse will invite a flood of meritless litigation are overblown considering that plaintiffs pursuing claims under the preemptive disability stigma framework must do more than prove they were regarded as an individual who will have a disability in the future or that they will associate in the future with an individual with a disability. To succeed on the merits of their claims, the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green requires that such plaintiffs must satisfy each of the elements of a prima facie disability discrimination case and, if the defendant proffers a legitimate, nondiscriminatory rationale for the adverse action, the plaintiff must further show that the stated rationale is pretext for disability discrimination.[318] Meritless litigation is just as likely to fail under the preemptive disability stigma framework as under current jurisprudence. I further anticipate (and hope) that the facts underlying preemptive disability stigma cases, in which a defendant discriminates in anticipation of future disability, will remain relatively rare, which would further mitigate slippery slope fears about vastly expanding the scope of the law.

Moreover, endorsing the framework would serve as a counterbalance to the skew in case law towards finding for employers on the ground that an individual is not an “individual with a disability.” Multiple scholars have analyzed how the ADAAA’s clarification that the scope of the definition is meant to be broad has affected substantive outcomes.[319] Stephen Befort found that, before the ADAAA, courts granted summary judgment to employers on the ground that the plaintiff was not an “individual with a disability” 74.4 percent of the time, but this percentage fell to 45.9 percent after the ADAAA.[320] Befort notes this data may understate the extent to which plaintiffs satisfied the definition after the ADAAA because often the employer chooses not to contest that the plaintiff is disabled, but this data nonetheless suggests greater balance in judicial interpretation on the issue of disability after the law’s amendment.[321] However, more recent research by Nicole Buonocore Porter has identified a general trend of courts again interpreting the definition of “disability” narrowly.[322] Porter identifies 21.5 percent of federal cases analyzing the definition between 2014 and 2019 as incorrectly decided in light of the ADAAA and 18 percent as incorrectly decided on this issue between 2019 and 2023, arguing that a number of these cases indicate a “real possibility of another backlash against the ADA” similar to that which excluded ADA plaintiffs from court prior to the law’s amendment.[323] This research suggests that, rather than a concern about unfounded cases clogging court dockets, the more acute concern is that plaintiffs whose claims do indeed fall within the scope of the ADA’s protections are being unduly shut out from courts. Court decisions correctly interpreting the scope of the ADA like the appellate opinion in Darby remain too few in the jurisprudence.

IV. The Future of Future Disabilities: Avenues for Reform

This Section turns to “the future” of future disabilities—that is, how the underlying aims of the anticipatory accommodations and preemptive disability stigma frameworks can be best achieved. In doing so, this Section goes beyond articulating how the anticipation of future disabilities can be properly accounted for within the legal doctrine and aims to advance a dialogue about how the anticipation of future disabilities should be accounted for in policy reforms to better protect future health, safety, and wellness.

A.   The Next Frontier in Policy Reform

My claim that the pre-impairment anticipatory accommodations framework fits thornily within disability civil rights legal doctrine does not mean that there can be no recourse for an employer’s failure to take proactive steps that may mitigate harm to an employee’s health or safety, independent of whether that harm might be disabling in the future. For example, in an early discussion of the COVID-19 pandemic, a context in which the pre-impairment anticipatory accommodations framework has arisen, Lindsay Wiley and Samuel Bagenstos argued that, rather than “[i]ndividualistic strategies to change behavior,” what is needed are “solidaristic efforts to create the social and economic conditions required for people to protect themselves and others.”[324] Accommodations like the ability to take leave from work or work remotely are beneficial to many employees with and without disabilities (and likely required by the ADA for the former), but Wiley and Bagenstos argue that employers cannot carry the burden alone of making accommodations at the scale required to effectively respond to structural risks as extensive as the pandemic.[325] Their call to allocate legal duties and costs across society aligns with Sarah Lorr’s call for “normalizing and reframing the need for support.”[326]

Similarly, drawing from the concept of Universal Design, among other organizational theories, Shirley Lin has argued that legal analysis should shift from a primary focus “on doctrine and courtroom outcomes” to a broader evaluation of structural norms, noting that “the COVID-era landscape generated its own ‘common law’” wherein institutions acting at the beginning of the pandemic “design[ed] accommodations and solutions before receiving individual requests.”[327] Lin describes the organization-wide modifications that many workplaces and educational institutions provided during the COVID-19 pandemic as “mass accommodations” and argues that their widespread adoption undermines prior “assumptions about whether institutions are capable of dismantling broader forms of exclusion and harm.”[328] Notably, these interventions are not centered on a fear that nondisabled people will acquire disability, but rather on protecting all workers from harms to their health and safety, a goal that workers with and without disabilities share.

Moreover, the notions of interconnected fate and shared vulnerability that seem to underlie the pre-impairment anticipatory accommodations framework—consider Gray’s advocacy on behalf of other individuals—point to public health interventions as potentially more protective than the downstream remedies of civil rights litigation (or even to systemic reforms focused on the workplace). Whether due to a global pandemic or community-level exposure to environmental toxins, the conditions that seem most likely to prompt an individual to seek pre-impairment anticipatory accommodations also reflect public health problems. While the term is amenable to more than one definition, public health law generally focuses not on what occurs in individual clinical interventions, but on population health and the law’s role in shaping the conditions that determine population health.[329] Achieving social justice—understood as advancing population health by focusing on the most disadvantaged—is a core commitment of public health.[330]

In a landscape in which effective public health interventions are in place, a worker like the plaintiff in Gray may not have needed to pursue claims that stretch the bounds of disability civil rights law. For example, when policymakers prioritize the implementation of structural protections for population health, like contact tracing and vaccination requirements to manage community-level spread of a communicable disease, a given individual will have less need to use civil rights law to obtain individualized protections like the disability accommodations sought in Gray. As I have argued, turning to disability civil rights law before one has an impairment that might be disabling risks harm to the articulation of the civil rights claim. It further shifts focus from the more effective public health strategies that state actors are responsible for adopting to the kinds of interventions that a court might order private actors to adopt, even though the latter interventions inherently have a narrower scope than public health measures. Moreover, prioritizing public health strategies could mitigate the concerns about medicalizing disability that arise in the context of civil rights litigation given that the public health intervention is based not on an individual’s specific medical condition but on the health needs of a population as a whole.[331] One need not have a particular medical diagnosis to reap the benefits of public health interventions. For these reasons, tasking disability civil rights doctrine with interventions that are better situated within public health law both legally and as a matter of policy misses a critical opportunity to achieve collective benefits reaching beyond the plaintiffs of a single lawsuit.

Relatedly, the limitations of the civil rights approach in the pre-impairment context underscore the need for more structural reforms to the U.S. healthcare system. Much of civil litigation is individualist in nature. Yet public health scholars point to individualism as one of the sociopolitical fixtures in the United States that has impeded the adoption of a system of universal single-payer healthcare and other structural reforms that would better advance health equity.[332] For example, employers have an incentive to limit or abandon any health insurance benefits they provide workers as soon as another institution or system may owe the worker a similar responsibility. This incentive is reflected in the facts of Stanley v. City of Sanford, where the city limited health insurance for workers who retired due to disability to just twenty-four months and to even less time if the retiree received benefits from Medicare earlier.[333] Given the absence of universal healthcare and limitations on eligibility for programs like Medicare or Medicaid, the individualist ethos underlying American culture and politics means that most workers facing similar policies will be on their own when it comes to securing protections for their future health. Lindsay Wiley, Elizabeth McCuskey, Matthew Lawrence, and Erin Fuse Brown thus argue that, in order to avoid entrenching subordination, even incremental healthcare reforms must confront individualism and the other fixtures that impede health equity.[334]

Achieving transformative changes beyond what can be accomplished through litigating individual cases or through clinical interventions that might protect the health of an individual medical patient requires addressing a key question: What does it look like to design systems and institutions that can anticipate disability and provide health supports equitably? I thus follow this Article’s evaluation of whether disability civil rights law captures the anticipated health risks that may produce future disabilities with further examination of how healthcare system reforms can fill the void that antidiscrimination law leaves unmet.

Lastly, proposals outside of the healthcare context have identified various methods of anticipating which members of society may need supports, and these insights are additionally useful for consideration with respect to future disabilities. For example, in a thoughtful analysis of criminal legal algorithms, Ngozi Okidegbe proposes reimagining the purpose of these tools to shift from predicting who is at most risk of harming others to predicting who is at most risk of needing supports to prevent or mitigate the harms of the criminal legal system.[335] Okidegbe imagines using algorithmic tools to “identify[] community members whose incarceration would adversely harm the community due to the importance of that individual to the community” or to identify “those living at the intersection of various marginalized identities that are at risk for harmful outcomes, including premature death, in order to divert financial resources to them.”[336] An extension of this reimagining to the context of future disabilities would ask, for instance, whether algorithmic tools can be used to predict who is at risk of acquiring a future disability through weathering or other circumstances and ensuring that those individuals have both health insurance coverage and early intervening services. Rather than algorithmic tools being used in the health insurance industry to deny coverage,[337] the tools could be reoriented to focus on authorizing preventative care for patients at risk of future ill health. Similar tools exist in the context of evaluating the risks of dangerous housing conditions like lead exposure and other environmental toxins,[338] and researchers are currently developing screening tools to identify the physiological signs of weathering due to chronic stress.[339] The common conceptual core of these proposals is mitigation against the possibility of harm to an individual’s health or safety, regardless of whether that harm might also be disabling in the future.

The above interventions are not suggested as a complete accounting of which domains in law and policy may be better suited than disability civil rights law to respond to the pre-impairment anticipatory accommodations framework. Rather, I offer these examples to prompt further dialogue among scholars, advocates, and policymakers on how reforms within these and other fields can be leveraged to provide supports for those facing a risk of future ill health or disability whose needs fall outside the scope of current disability civil rights law.

B.   Legal Solutions for the Current Moment

With respect to the current state of disability civil rights law, I contend that the language of the ADA[340] is already sufficiently clear that courts not bound by STME can and should reject its analyses and hold that preemptive disability stigma may give rise to a claim either under the “regarded as” prong of the definition of “disability” or the associational discrimination provision. The statutory text and legislative purpose make clear that the “regarded as” prong can include an individual who is regarded as a person who will have a disability in the future. The text and purpose of the law further support holding that the associational discrimination provision can apply to an individual who is subject to adverse action based on the fact that the individual will associate with a disabled person in the future (or is currently associated with someone who will have a disability in the future or is perceived as such). The statutory text does not preclude any of these interpretations, and the legislative history makes clear that Congress intended to protect against disability-based stereotypes, generalizations, and assumptions, even if the employer discriminates based on disability in advance of the employee or job applicant actually acquiring a disability. Recognizing that many courts will be unfamiliar with such cases, this Article offers guidance on how courts can articulate the legal basis for finding these “regarded as”[341] and associational discrimination claims[342] viable.

To the extent that courts considering such cases independent of the analysis in STME find ambiguity in the statute, the EEOC and other federal agencies with enforcement authority over the ADA and Section 504 should amend their regulations to clearly authorize claims regarding future disabilities based on the interpretations described above.[343] Undoubtedly, the power of agency rulemaking to clarify the law has been significantly blunted by the Supreme Court’s recent jurisprudence curtailing the scope of issues on which agencies can regulate and overruling the longstanding deference previously afforded to agencies’ reasonable interpretations of ambiguous statutory language through implementing regulations.[344] There are also significant grounds for skepticism that current agency political leadership is amenable to reading the law’s protections expansively. It therefore may be that Congress, as it has done before, must intervene to correct courts’ unduly narrow interpretation and further amend the ADAAA to clarify that the law extends to future disabilities in the ways articulated in this Article.

Any statutory amendments to better reflect how future disabilities fit within disability civil rights law should include amending the definition of “disability.” This definition could be amended in two ways that more accurately capture the broad scope of the law’s protection. First, where Section 12102(1)(B) and its implementing regulations currently state that the definition of disability includes “a record of such an impairment,” a clearer version of the definition would read “a record of such an impairment, whether or not the impairment is a present impairment.”[345] This addition would confirm that discrimination based on a past disability is prohibited even if the prior disability has not continued but is nonetheless the basis of the discriminatory conduct.[346] Second, where Section 12102(3)(A) and corresponding regulations provide that an individual is regarded as having such an impairment if they are subjected to a prohibited action “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity,” an additional clause could be included to clarify that this provision extends to future disabilities. Such an amendment might read as follows, for example: “because of an actual or perceived physical or mental impairment: (i) whether or not the impairment limits or is perceived to limit a major life activity, and (ii) whether or not the impairment will limit or is perceived to limit in the future a major life activity.”[347] These amendments include some redundancy given that the Dictionary Act already requires the present tense to be interpreted as including the future tense. However, including such reinforcing language within the statute of the ADA given the Eleventh Circuit’s reluctance in STME could prevent future plaintiffs from being wrongly shut out of pursuing viable legal claims.[348]

The definition of the scope of prohibited discrimination articulated in Section 12112 and its corresponding regulations should be amended along similar lines.[349] Specifically, the associational discrimination provision in Section 12112(b)(4) currently reads that prohibited discrimination includes “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Mirroring the proposed amendments for the “record of” prong of the definition of disability, Section 12112(b)(4) could be amended to read “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association, whether or not the relationship or association is in the present.” Again, this amendment would be somewhat redundant given the Dictionary Act but could protect against courts’ failure to read disability civil rights laws consistent with that law.

In considering the political viability of amending federal disability civil rights statutes, I note that legislation in this context has been more bipartisan in comparison with other civil rights statutes, but that bipartisanship can come with steep sacrifices with respect to achieving justice. Bipartisan support for disability civil rights is sometimes based on competing values—such as pity or paternalism as opposed to a respect for individual autonomy and dignity—that, when placed under pressure, could contribute to a retrenchment in societal and legal supports.[350] As an example of this paradox, skeptics of disability civil rights who believe that such laws force employers to favor unqualified disabled people over more meritorious nondisabled candidates might nonetheless support preemptive disability stigma claims due to their “outside” view that disability is inherently a “bad difference.”[351] There is thus an ableist case that could be made for expanding legal protections against disability stigma by those who find the adverse treatment stemming from such stigma objectionable not because it is baseless and demeaning to people with disabilities but because they believe the underlying stereotypes and animus to be warranted. Although recent decades have seen progress in some respects in destigmatizing disability, it is evident that disability civil rights are currently vulnerable to retrenchment. This reality is demonstrated by recent legal challenges to Section 504 and its implementing regulations;[352] the threats to the ongoing viability of unintentional discrimination legal theories;[353] the resurgence of disability animus in political and cultural discourse;[354] and the ongoing political, cultural, and legal attacks on diversity, equity, inclusion, and accessibility initiatives.[355] It is therefore critical that any amended statutory or regulatory reforms make clear their adoption of an antisubordination framework. Preemptive disability stigma is a moral and legal wrong because it is an unfounded assault on dignity that denies equal opportunity, not because—as the ableist position might fear—it prematurely labels people with a less worthy status.[356]

Given the state of national politics, state-level reforms could potentially be a more promising avenue, and at least one state has already adopted expansive statutory and regulatory provisions capturing discrimination based on future disabilities. For example, California’s Fair Employment and Housing Act (FEHA) prohibits discrimination based on physical disability, mental disability, medical condition, and genetic information.[357] State regulations implementing the law provide that the prohibition on disability discrimination includes “discrimination due to an actual or perceived physical or mental disability or medical condition that is disabling, potentially disabling or perceived to be disabling or potentially disabling.”[358] Furthermore, the state’s regulatory definition of a “perceived potential disability” includes “being regarded, perceived, or treated by the employer or other covered entity as having, or having had, a physical or mental disease, disorder, [or] condition . . . that has no present disabling effect, but may become a mental or physical disability.”[359] Courts apply the ADA’s “regarded as” standard for such claims, demonstrating there is already alignment between existing federal law and these more specific state provisions capturing preemptive disability stigma.[360] Additional lessons could be drawn from broader statutory definitions of disability in the international context. For example, Australia’s Disability Discrimination Act of 1992 includes within the definition of disability “the presence in the body of organisms capable of causing disease or illness,” and the law specifically “includes a disability that . . . may exist in the future (including because of a genetic predisposition to that disability).”[361] Neither example has unleashed the slippery slope fear raised in Bragdon of unduly strained courts or business entities.

Conclusion

In situating the construct of future disabilities within disability civil rights law, this Article uncovers some contexts in which courts’ legal analysis is consistent with the text and purpose of the law, for instance, in analyzing accommodations claims by focusing on the present effects of an individual’s impairment even if the impairment has yet to result in a specific diagnosis. However, the Article also identifies other contexts in which courts’ legal analysis is both textually unsupported and inconsistent with the law’s destigmatizing aims, namely, in the analysis of “regarded as” and associational discrimination claims invoking the preemptive disability stigma framework. These findings underscore the need for a shift in judicial interpretation and, as appropriate, for regulatory and statutory reform.

In addition to refining disability civil rights legal doctrine, the Article draws further attention to the limits of civil rights law in two respects. First, as evident in the research on weathering, antidiscrimination law fails to fully redress the concrete harms that the experience of enduring discrimination poses to individual and population health. Second, when antidiscrimination law fails to prevent and redress racial or other forms of discrimination, that discrimination can have future disabling effects and thus make the individual vulnerable to yet another form of subordination going forward. As robust as policymakers might make civil rights statutes on paper, the rights and remedies these laws provide do not change these effects of discrimination on the bodymind. This Article thus sets the stage for closer analysis of how health law and policy reforms can better address the relationship between subordination, inequity, and future health and disability. Meaningfully addressing this complex relationship will require anticipating disability through more structural mechanisms, even while we strengthen the potential of antidiscrimination laws as set forth in this Article.

Copyright © 2026 Alice Abrokwa, Associate Professor of Law, University of Virginia School of Law. For helpful comments and conversations, I thank Samuel Bagenstos, Naomi Cahn, Kim Forde-Mazrui, Alison Gocke, Tristin Green, Shirley Lin, Sarah Lorr, Katherine Macfarlane, Elizabeth McCuskey, Martha Minow, Jamelia Morgan, Nicole Buonocore Porter, Adam Samaha, Michael Ashley Stein, and J.H. Verkerke. I further thank participants in the University of Minnesota Law School Public Law Workshop, Equality Law Scholars Forum, Culp Colloquium, Lutie A. Lytle Workshop, and the AALS Disability Law Section Virtual Works-in-Progress Workshop. I am also grateful to Anna Johnson, Billi Jo Morningstar, Laura-Louise Rice, and the University of Virginia School of Law Library for excellent research and editing assistance. Lastly, I extend many thanks to the editing team at the California Law Review for their thoughtful edits and feedback.

       [1]. Margaret Price, The Precarity of Disability/Studies in Academe, in Precarious Rhetorics 191, 201 (Wendy S. Hesford, Adela C. Licona & Christa Teston eds., 2018) [hereinafter Price, Precarity]; see Margaret Price, Crip Spacetime: Access, Failure, and Accountability in Academic Life 94–96 (2024) [hereinafter Price, Crip Spacetime]; Sami Schalk, Black Disability Politics 15 (2022) (defining a “bodymind” as “the inextricable nature of body and mind” in which “one impacts the other and . . . they cannot be understood or theorized as separate”).

[2].   In this Article, I alternate between using “person-first” language and “identity-first” language with respect to disability. Person-first language, like the terms “individual with a disability” or “people with disabilities,” is preferred by some because it situates a person’s individuality and personhood as more salient than their disability status. See generally Adam M. Samaha, Disability Language Work: On Attitudes, Signals, and Foundations, 40 Touro L. Rev. (forthcoming 2026) (on file with author) (describing shifting patterns in the use of person-first or identity-first language in the U.S. over time). Increasingly, many people prefer identity-first language, such as “disabled person” or “autistic person,” to indicate that their disability is a meaningful part of their identity and to signal an affinity and common sociopolitical position with a societal group. See generally id. (describing rationales for various preferences on disability language); Simi Linton, Claiming Disability: Knowledge and Identity 13 (1998) (describing a shift towards person-first language in the mid-1970s but explaining that, “[b]eginning in the early 90s[,] disabled people has been increasingly used in disability studies and disability rights circles when referring to the constituency group”); Lydia Brown, Identity-First Language, Autistic Self Advoc. Network, https://autisticadvocacy.org/about-asan/identity-first-language/ [https://perma.cc/287K-TVEL] (describing the author’s view on language and providing resources on other perspectives). I alternate between “identity first” and “person first” terminology to reflect the varied views on and purposes of this language.

       [3]. See Schalk, supra note 1, at 72; Anne Bloom & Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 Wash. L. Rev. 709, 712 (2011); Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 749, 759–60 (2007).

       [4]. See infra pp. 1196–98 (discussing the difference between an “impairment” and a “disability” within the meaning of disability civil rights laws); see also Alison Kafer, Feminist, Queer, Crip 4 (2013) (“As much joy as I find in communities of disabled people, and as much as I value my experiences as a disabled person, I am not interested in becoming more disabled than I already am.”); Sagit Mor, The Meaning of Injury: A Disability Perspective, in Injury and Injustice: The Cultural Politics of Harm and Redress 27, 38 (Anne Bloom, David M. Engel & Michael McCann eds., 2018) (“[B]eing disabled does not mean being indifferent to changes in one’s bodily condition, whether they are associated with aggravating one’s impairment or with acquiring a new type of impairment.”).

       [5]. See infra pp. 1250–52.

       [6]. See Elizabeth Barnes, The Minority Body: A Theory of Disability 54–77 (2016) [hereinafter Barnes, The Minority Body] (explaining the distinctions between “bad-difference” views of disability, in which “disability (by itself or intrinsically) makes you worse off,” and “mere-difference” views, in which disability “simply makes you different”).

       [7]. See Bagenstos & Schlanger, supra note 3, at 758–59 (describing jury awards in tort cases for future physical impairment); Mor, supra note 4, at 39–42 (considering the function of tort law to prevent injuries from a disability perspective); see also Bloom & Miller, supra note 3, at 748–50 (critiquing legal actors’ presumptions about disability when analyzing damages for future loss of enjoyment of life or capacity).

       [8]. The ADA and Section 504 overlap in scope and are generally analyzed together. See Bragdon v. Abbott, 524 U.S. 624, 642–47 (1998); K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1098 (9th Cir. 2013). As further discussed in Part I, the ADA was amended in 2008, see infra p. 128, though the amended statute is also interpreted as consistent with Section 504.

       [9]. As further explained in Part I, see infra, a disability under federal disability rights statutes is “a physical or mental impairment that substantially limits one or more major life activities” of the individual, a “record of such an impairment,” or “being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1); see 29 U.S.C. § 705(20).

     [10]. See infra pp. 1196–98 (discussing the difference between an “impairment” and a “disability”).

     [11]. See Schalk, supra note 1, at 73 (calling for a rhetorical approach that “identifies the various forms of violence and neglect that unnecessarily produce disability as the problem to be solved, not disability itself”); Mor, supra note 4, at 29 (considering, from the perspective of tort law, whether it is “possible to reconstruct a concept of injury that is free of negative stigma and social bias against disabled people, but still acknowledges the pain and moral wrong that an injury entails” (emphasis omitted)).

     [12]. Although a failure to provide reasonable accommodations is a type of adverse treatment, see infra p. 132, I do not include such claims in the category of preemptive disability stigma cases. Failure-to-accommodate theory is not germane to this framework because a plaintiff in preemptive disability stigma cases would have no reason to seek accommodations for a disability they do not anticipate having. For a discussion of adverse treatment in hiring based on an employer’s anticipation that they would need to provide accommodations for a prospective employee with a current disability, see Jennifer Bennett Shinall, Anticipating Accommodation, 105 Iowa L. Rev. 621, 654–69 (2020).

     [13]. See, e.g., infra Part II.

     [14]. See Jasmine E. Harris, Locating Disability Within a Health Justice Framework, 50 J.L. Med. & Ethics 663, 664 (2022) (describing disability justice as a response to disability rights, which “relies heavily on lawyers to construct narratives of legal harm that respond to rigid legal categories and remedies rather than lived experiences”); Price, Precarity, supra note 1, at 193 (arguing that “a strong focus on rights . . . tends to uphold . . . static binaries . . . , thus aggravating conditions of precarity for some disabled people”); Olatunde C.A. Johnson, Beyond the Private Attorney General: Equality Directives in American Law, 87 N.Y.U. L. Rev. 1339, 1377 (2012) (“[T]oo much focus on bias and antidiscrimination risks emphasizing the problems of those well positioned to benefit from the removal of formalized barriers to equality, while leaving untouched the problems affecting low-income persons of color.”); Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement 11 (2009) (noting that the ADA “has made our society more accessible” but has yet to meaningfully improve employment opportunities for people with disabilities or dismantle structural ableism).

     [15]. See, e.g., Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 230 (2022) (holding that emotional distress damages are not available in private litigation under Section 504). See generally Leah M. Litman, Disparate Discrimination, 121 Mich. L. Rev. 1 (2022) (critiquing the Court’s application of a more demanding standard for plaintiffs pursuing racial discrimination claims than the standard for religious discrimination claims); Cristina Isabel Ceballos, David Freeman Engstrom & Daniel E. Ho, Disparate Limbo: How Administrative Law Erased Antidiscrimination, 134 Yale L.J. 370 (2021) (critiquing how judicial interpretation of the Administrative Procedure Act, coupled with demanding standards for civil rights claims, has unduly constrained private plaintiffs’ avenues to challenge discriminatory actions by federal agencies).

     [16]. See Harris, supra note 14, at 664–65 (contending that a focus on disability rights fails to provide the broader context underlying individual harm and “privileges the remedial role of law” and of “courts and legal actors as arbiters of justice”); Natalie M. Chin, Centering Disability Justice, 71 Syracuse L. Rev. 683, 692 (2021) (explaining that a “rights-focused, welfare opposing approach” underlying the ADA has meant that “a relatively advantaged class of people with disabilities” benefit most from the law and “the ADA has less impact for disabled people who live at the intersection of multiply marginalized identities”).

     [17]. See Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1214–15 (2022) (describing critical race theorists’ application of “rights rhetoric—framing needs, protections, and injuries in the language of rights” to “reforms aimed at addressing historical and ongoing racial subordination”).

     [18]. Angela P. Harris & Aysha Pamukcu, The Civil Rights of Health: A New Approach to Challenging Structural Inequality, 67 UCLA L. Rev. 758, 810 (2020).

     [19]. Since this Article focuses on disability civil rights law, a discussion of case law implicating future disabilities in other areas of employment law, such as the Family and Medical Leave Act, is largely beyond its scope. Similarly, this Article does not focus on Universal Design, though I note that Universal Design principles can be understood to already “anticipate” future disabilities. Universal Design theory extends beyond minimum legal requirements by calling for institutions to be designed to anticipate and provide access for a wide range of bodyminds. See Ruth Colker, The Americans with Disabilities Act’s Unreasonable Focus on the Individual, 170 U. Pa. L. Rev. 1813, 1838 (2022); Ruth Colker, Toward Universal Design in the Classroom, 71 J. Legal Educ. 57, 58–60 (2021); Shirley Lin, Mass Accommodations: Signposts for a Hidden Jurisprudence, 74 Emory L.J. 313, 330–33 (2024). It is thus a means of designing institutions to meet the needs both of people who are disabled now and those who may be in the future. While this Article focuses on organizing and critiquing the disability civil rights case law implicating future disabilities, further taxonomies might incorporate the literature on Universal Design and other organizational theories that anticipate future disabilities both within and beyond legal doctrine. See Lin, supra note 19, at 324, 335.

     [20]. See, e.g., PGA Tour, Inc. v. Martin, 532 U.S. 661, 668, 690 (2001) (finding that a golfer with a degenerative circulatory blood disorder was entitled to use a golf cart as a reasonable modification to the tournament rules after the progression of his condition meant he could no longer walk the entirety of the golf course); Harriet McBryde Johnson, Unspeakable Conversations, in Disability Visibility: First-Person Stories from the Twenty-First Century 3, 3–27 (Alice Wong ed., 2020); Sonia Suter, The Problems of Liminal States, Line Drawing, and False Dichotomies, 2 J.L. & Biosciences 736 (2015); Abigail Lauren Perdue, Justifying GINA, 78 Tenn. L. Rev. 1051, 1063–91 (2011).

     [21]. See Nicole Buonocore Porter, Explaining “Not Disabled” Cases Ten Years After the ADAAA: A Story of Ignorance, Incompetence, and Possibly Animus, 26 Geo. J. on Poverty L. & Pol’y 383, 394, 412 (2019) [hereinafter Porter, Explaining “Not Disabled”] (finding a trend of dismissals absent a formal physician diagnosis).

     [22]. Price, Crip Spacetime, supra note 1, at 9.

     [23]. For background on the evolution of disability civil rights law and how recognizing future disabilities accords with the statutes’ purpose, see generally Amanda Valero, Future Disabilities and Employment Discrimination Law, 34 St. Thomas L. Rev. 23 (2021).

     [24]. See generally Sarah H. Lorr, Disabling Families, 76 Stan. L. Rev. 1255 (2024) (analyzing the construction, creation, and reinscription of disability within the family regulation system); Eric J. Miller, Policing Dis/Ability, in Dis/Ability in Media, Law and History: Intersectional, Embodied and Socially Constructed? 103 (Micky Lee, Frank Rudy Cooper & Patricia Reeve eds., 2022) (arguing that “[p]olicing . . . has at its core the production of dis/ability”); Rabia Belt, The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future, 110 Geo. L.J. 785 (2022) (arguing that the carceral system can produce obesity); Benjamin C. Hattem, Carceral Trauma and Disability Law, 72 Stan. L. Rev. 995 (2020) (arguing that trauma in the carceral system produces disability).

     [25]. See, e.g., Yuvraj Joshi, Racial Time, 90 U. Chi. L. Rev. 1625, 1626–34, 1653–78 (2023); S. Lisa Washington, Time and Punishment, 134 Yale L.J. 536, 541–42 (2024).

     [26]. See Kafer, supra note 4, at 25–46; see also Nicole Buonocore Porter, The Entrenchment of Structural Norms, in The Workplace Reimagined: Accommodating Our Bodies and Our Lives 73–90 (2023) [hereinafter Porter, Entrenchment] (discussing how the entrenchment of structural norms, including norms about the time spent working, harms workers with disabilities).

     [27]. See Joshi, supra note 25, at 1632, 1635 (noting that waiting for access to rights, services, and supports is “a significant dimension of racial time” for racially marginalized groups and concluding that legal remedies to redress racial subordination “always seem to arrive too soon or too late, cause change too fast, or last too long”); I. Bennett Capers, Afrofuturism and the Law: A Manifesto, 112 Geo. L.J. 1361, 1367–68 (2024) (contesting dominant presumptions of linear time and progress).

     [28]. See generally Alice Abrokwa, Too Stubborn to Care for: The Impacts of Discrimination on Patient Noncompliance, 77 Vand. L. Rev. 461, 471–88 (2024) (discussing how intersecting stereotypes based on race, gender, and disability make some patients more likely to be deemed “noncompliant” by their medical providers and by legal actors); Jamelia Morgan, On the Relationship Between Race and Disability, 58 Harv. C.R.-C.L. L. Rev. 663 (2023) (articulating how an analytical framework centered on intersectional race and disability discrimination can meaningfully shape the analysis of disability under constitutional law); Jamelia Morgan, Toward a DisCrit Approach to American Law, in DisCrit Expanded: Reverberations, Ruptures, and Inquiries 13, 38–42 (Subini A. Annamma, Beth A. Ferri & David J. Connor eds., 2022) (applying a framework drawn from “dis/ability critical race studies” focused on the intersection of race and disability to critique how the ADA fails to adequately address the subordination of disabled people of color); Jasmine E. Harris, Reckoning with Race and Disability, 130 Yale L.J. F. 916 (2021) (arguing that race and disability discrimination both involve aesthetic social judgments and that an aesthetic lens better informs appropriate remedies for intersectional discrimination); Natalie M. Chin, Centering Disability Justice, 71 Syracuse L. Rev. 683 (2021) (arguing that achieving disability justice requires critical engagement with the intersection of racism and ableism in legal analysis and broader advocacy efforts); Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L. 15 (2018) [hereinafter Abrokwa, “When They Enter, We All Enter”] (articulating the varied ways in which intersectional discrimination based on race and disability may occur and explaining how such claims can be pursued within employment discrimination law); Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209 (2010) (analyzing how disability may be understood using a critical race theory lens and examining the nexus between critical disability studies and critical race studies).

     [29]. See Britney R. Wilson, Making Me Ill: Environmental Racism and Justice as Disability, 170 U. Pa. L. Rev. 1721, 1739–44 (2022) (discussing the placement of a petrochemical plant in a Louisiana community subsequently known as “Cancer Alley”); Daniel C. Semenza, Nazsa S. Baker & Christopher St. Vil, Firearm Violence Exposure and Functional Disability among Black Men and Women in the United States, 101 J. Urb. Health 522, 522–23 (2024) (study finding that exposure to firearm violence was linked to substantially higher risk of disability, including mobility impairments, post-traumatic stress disorder, and depression); Samantha Boch, Christopher Wildeman, Judith Dexheimer, Robert Kahn, Joshua Lambert & Sarah Beal, Pediatric Health and System Impacts of Mass Incarceration, 2009-2020: A Matched Cohort Study, 24 Acad. Pediatrics 1285, 1291 (2024) (discussing “the ‘weathering’ and toxic stress impacts that stem from the criminal legal system on the health of youth”).

     [30]. See generally Abrokwa, “When They Enter, We All Enter,” supra note 28 (explaining the importance of pursuing intersectional employment discrimination claims based on race and disability and analyzing how such claims may meet their causation and proof burdens).

     [31]. 42 U.S.C. §12102(1), (3)(A) (“For the purpose of paragraph 1(C): . . . An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”); see Bragdon v. Abbott, 524 U.S. 624, 646 (1998) (explaining that “Congress intended the ADA’s definition to be given the same construction as the definition of handicap in the Rehabilitation Act”).

     [32]. 29 C.F.R. § 1630.2(h) (2026) (Title I, applying to covered employers); 28 C.F.R. § 35.108(b)(1) (2026) (Title II, applying to state and local governments); 28 C.F.R. § 36.105(b)(1) (2026) (Title III, applying to places of public accommodation).

     [33]. See Lorr, supra note 24, at 1268–69 (explaining that impairments “cannot be alleviated by external or social conditions”); Elizabeth Barnes, Health Problems: Philosophical Puzzles about the Nature of Health 3 (2023) (“There is a biological reality to health. . . . A degenerative demyelinating disease [like multiple sclerosis] reduces the health of the person who has it simply because of the type of process it is—regardless of how we conceptualize it and regardless of our attitudes to it.”).

     [34]. Lorr, supra note 24, at 1268; see Morgan, On the Relationship Between Race and Disability, supra note 28, at 671. For an argument that impairments can also be social in nature, see Kafer, supra note 4, at 7, and Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Ga. L. Rev. 937, 971–81 (2012).

     [35]. See Schalk, supra note 1, at 34. Among the ways in which the ADA endorses the social model is the statute’s deliberately broad definition of “disability” (as confirmed by the 2008 amendments to the law discussed further below), the fact that the definition includes being regarded as disabled, and the statute’s protections for individuals who are associated with a disabled person. See infra Part III.

     [36]. See Schalk, supra note 1, at 34 (internal citations omitted). Though I use the terms where they appear in a quote, “handicap” and “handicapped” are now largely regarded as outdated within the disability rights community. See id. at 104.

     [37]. See, e.g., Mor, supra note 4, at 36 (describing the critiques of some disability studies scholars regarding the distinction between impairment and disability); Travis, supra note 34, at 961, 971–81 (arguing that proponents of the social model have failed to grapple with the extent to which the regulatory definition of “impairment” presumes biomedical abnormality and have underacknowledged the societally constructed aspects of impairment); Bradley A. Areheart, Disability Trouble, 29 Yale L. & Pol’y Rev. 347, 354, 363 (2011) (critiquing the social model for “unwittingly underscor[ing] the notion that disability has a biological essence” and arguing that “impairment is actually substantially socially constructed” because “the acts of creating and applying diagnoses . . . are ‘always contingent upon social factors’”); Adam M. Samaha, What Good is the Social Model of Disability?, 74 U. Chi. L. Rev. 1251, 1266–67 (2007) (identifying ways in which “the distinction between impairment and disability begins to collapse”).

     [38]. Miller, supra note 24, at 105; see also Doron Dorfman, Disability as Metaphor in American Law, 170 U. Pa. L. Rev. 1757, 1789–1801 (2022); Kafer, supra note 4, at 7–8; Mor, supra note 4, at 36–37.

     [39]. 524 U.S. 624, 628 (1998).

     [40]. See id. at 628–29.

     [41]. Id. at 628.

     [42]. See Mark Kelman, Does Disability Status Matter?, in Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions 91, 91–101 (Leslie Francis & Anita Silvers eds., 2000).

     [43]. See Bragdon v. Abbott, 524 U.S. 624, 633–34 (1998).

     [44]. Id. at 633–34.

     [45]. Id. at 637 (emphasis added).

     [46]. Id. Subsequent case law held that an impairment with ongoing impacts can be disabling even when its symptoms are dormant. See Cehrs v. Ne. Ohio Alzheimer’s Rsch. Ctr., 155 F.3d 775, 777, 780 (6th Cir. 1998) (holding that the plaintiff was a person with a disability under the ADA based on her psoriasis—a chronic and recurrent skin condition that “can be life threatening during ‘flare-ups’ but is noticeable in its dormant stage only by skin lesions”—even if she did not experience daily flare-ups given “the ongoing nature of the disease and its physiological impact even during its dormant stage” (citing Bragdon)). Congress later amended the ADA to endorse this interpretation for impairments that are episodic or in remission. See 42 U.S.C. § 12102(4)(D); Travis, supra note 34, at 1000 n.281.

     [47]. Bragdon, 524 U.S. at 637.

     [48]. Id. at 661 (emphasis added).

     [49]. Id. at 661 (emphasis added). Note that Congress later enacted the Genetic Information Nondiscrimination Act of 2008 to protect against discrimination based on genetic information in health insurance and employment. See Jessica L. Roberts, Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63 Vand. L. Rev. 439, 442–51 (2010).

     [50]. Bragdon, 524 U.S. at 661. Notably, the question arose at oral argument when Kennedy asked counsel for Bragdon whether an individual would fall within the ADA’s definition of an individual with a disability if they had an impairment that would substantially limit a major life activity within three to four years. Oral Argument at 9:09, Bragdon v. Abbott, 524 U.S. 624 (1998) (No. 97-156), https://www.oyez.org/cases/1997/97-156 [https://perma.cc/DSB7-LECJ]. Counsel argued against including future disabilities within the scope of the definition and raised a slippery slope concern about “open[ing] up the statute to future disabilities,” including “whatever might exist in the future.” Id. at 9:37.

     [51]. By contrast with Bragdon’s treatment of risk in analyzing the ADA, some courts analyzing the Employee Retirement Income Security Act (ERISA), which sets minimum standards for retirement and health insurance plans, have held that a “high risk of future disability can entitle a plaintiff to present disability benefits.” Rhodes v. Principal Fin. Grp., Inc., No. 10-CV-290, 2011 WL 6888684, at 4 (M.D. Pa. Dec. 30, 2011); see Lasser v. Reliance Std. Life Ins. Co., 344 F.3d 381, 391 n.12 (3d Cir. 2003); McGuigan v. Reliance Std. Life Ins. Co., No. CIV.A. 02-7691, 2003 WL 22283831, at 10 (E.D. Pa. Oct. 6, 2003); see also Colby v. Union Sec. Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assoc. Long Term Disability Plan, 705 F.3d 58, 59–60 (1st Cir. 2013) (acknowledging a circuit split but holding that “a risk of relapse into substance dependence—like a risk of relapse into cardiac distress or a risk of relapse into orthopedic complications—can swell to so significant a level as to constitute a current disability” within the scope of an ERISA insurance plan). The case law regarding future disabilities in the ERISA context suggests that a sufficiently high risk of future disability may itself constitute a present disability. One explanation for this differing approach is that ERISA’s risk-based assessment of future disabilities relies heavily (if not entirely) on medical evidence, in contrast with the social model underlying the ADA. Medical risk is arguably much less central to an understanding of disability that treats disability as partly socially constructed (the understanding the ADA adopts), than to an understanding of disability meant for the purpose of allocating health insurance benefits tied directly to one’s physical or psychological condition (the understanding ERISA adopts).

     [52]. Bragdon, 524 U.S. at 639–41.

     [53]. Id. at 641. While the state laws prohibiting people with HIV infection from having consensual sex with others referenced in Bragdon are less common today, many states continue to have criminal laws specific to individuals who are HIV-positive. See The Ctr. for HIV Law & Pol’y, HIV Criminalization in the United States: A Sourcebook on State and Federal HIV Criminal Law and Practice (3d ed. 2024), https://www.hivlawandpolicy.org/sourcebook [https://perma.cc/Z9TZ-PNX5].

     [54]. Sutton v. United Air Lines, Inc., 527 U.S. 471, 475–76 (1999).

     [55]. See id. at 482.

     [56]. Id. (emphasis added).

     [57]. See ADA Amendments Act of 2008, Pub. L. No. 110-325 (2008) (explaining that, “in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act . . . provide broad coverage” but “the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and [other cases] have narrowed the broad scope of protection intended to be afforded by the ADA,” and, therefore, the ADAAA specifically rejects the narrow interpretations in Supreme Court case law and agency regulations of when an impairment substantially limits a major life activity and when an individual is regarded as a person with a disability). For an in-depth discussion of the aspects in Sutton that Congress overrode through enactment of the ADAAA, see Deborah A. Widiss, Still Kickin’ After All These Years: Sutton and Toyota as Shadow Precedents, 63 Drake L. Rev. 919, 922–28 (2015).

     [58]. Darby v. Childvine, Inc. (Darby I), No. 18-cv-00669, 2019 WL 6170743, at *1 (S.D. Ohio Nov. 20, 2019), rev’d, Darby v. Childvine Inc. (Darby II), 964 F.3d 440 (6th Cir. 2020).

     [59]. See Darby I, 2019 WL 6170743, at *1.

     [60]. See id.

     [61]. Id. at *2.

     [62]. Darby II, 964 F.3d at 443.

     [63]. Darby I, 2019 WL 6170743, at *4.

     [64]. The definition of “disability” under the ADA includes impairments that are episodic in nature or in remission if the impairment would be disabling when in its active state. See 42 U.S.C. § 12102(4)(D). Because of this provision and the ADA’s inclusion of a record of a disabling impairment within the meaning of “disability,” see 42 U.S.C. § 12102(1), I treat disabilities that are in an inactive state as present or past disabilities, rather than future disabilities.

     [65]. Darby I, 2019 WL 6170743, at *4.

     [66]. Id.

     [67]. See Darby II, 964 F.3d at 445.

     [68]. Id. at 446.

     [69]. Id. at 446–47; see 42 U.S.C. § 2000ff-1(a)(1).

     [70]. Darby II, 964 F.3d at 446 (emphases added).

     [71]. See id. at 445–47.

     [72]. See Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990, 993 (11th Cir. 2015) (finding that abnormal growth of precancerous cells substantially limited a major life activity and met the definition of disability under the ADA).

     [73]. 42 U.S.C. § 12112(b)(5)(A); see also 42 U.S.C. § 12112(a) (general prohibition on disability discrimination in employment).

     [74]. See 28 C.F.R. § 35.130(b)(7)(i) (2026) (Title II requirement for public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability” unless the entity demonstrates that doing so would “fundamentally alter the nature of the service, program, or activity.”); 28 C.F.R. § 36.302 (2026) (Title III reasonable modifications requirement for public accommodations); see also Payan v. L.A. Cmty. Coll. Dist., 11 F.4th 729, 738 n.4 (9th Cir. 2021) (explaining that the terms “reasonable modification” and “reasonable accommodation” are interpreted identically and used interchangeably); Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 118 (3d Cir. 2018) (same).

     [75]. See Gray v. WinCo Foods, LLC, 683 F. Supp. 3d 571, 580, 604–05 (E.D. Tex. 2023).

     [76]. Id. at 594–96.

     [77]. See id. at 596.

     [78]. See id. at 601, 605.

     [79]. Id. at 605 (emphasis added). The court found there was no evidence in the record that any of the employees had a disability, a record of disability, or was regarded as having a disability. Id. Furthermore, it was Gray, rather than the employees, who framed these requests for leave as disability accommodations. Id. at 606; cf. Downs v. Unum Life Ins. Co. of Am., 745 F. Supp. 3d 967, 973–74, 976 (N.D. Cal. 2024) (rejecting the defendant’s argument that the “[p]laintiff’s fear of COVID-19 cannot constitute a disability” within the meaning of ERISA and holding that “her underlying medical issues, the specific nature of her work readily exposing her to COVID-infected patients, and the particular risks associated with COVID-19 in 2020 render[ed] her disabled”). Notably, the court in Gray does not address whether the plaintiff had Article III standing, and plaintiffs seeking pre-impairment anticipatory accommodations, absent any other legal claims for relief, could face arguments that they fail to satisfy the injury-in-fact requirement for standing. See U.S. Const. art. III, § 2; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (explaining that plaintiffs in federal court must allege an injury traceable to the defendant’s actions that can be redressed by the court). But plaintiffs who pursue such claims can likely allege a cognizable injury—the denial of reasonable disability accommodations—sufficient for standing, even if the claim ultimately fails on its merits because the law does not provide the right as alleged. See Liston v. King.com, Ltd., 254 F. Supp. 3d 989, 1000 (N.D. Ill. 2017) (“[I]f he suffered a concrete and particularized injury, he has constitutional standing to pursue his claim. . . . The question of what legal theories [the plaintiff] may advance as bases for recovering damages for his injury does not implicate Article III standing; the availability of any particular legal theory presents a question of substantive law.”). I therefore focus on whether such cases fit the substantive scope of the law’s protections rather than on whether federal courts will likely have jurisdiction to hear them on their merits.

     [80]. Gray, 683 F. Supp. 3d at 606.

     [81]. See generally No. CIV 98-0490 BB/JHG, 1999 WL 35809709 (D.N.M. Apr. 30, 1999).

     [82]. Id. at *1; see Preeclampsia, Mayo Clinic (Apr. 15, 2022), https://www.mayoclinic.org/diseases-conditions/preeclampsia/symptoms-causes/syc-20355745 [https://perma.cc/UYZ7-3UW9].

     [83]. Kepley, 1999 WL 35809709, at *1.

     [84]. Id.

     [85]. Id.

     [86]. Id. at *1–2.

     [87]. Id. at 3. The employer also argued that the preeclampsia was not a qualifying disability because it was temporary in nature (i.e., only during Kepley’s pregnancy) and challenged whether Kepley’s cyclothymia was a qualifying disability. Id. at 3, *4–5.

     [88]. See id. at *4.

     [89]. Id. at *3 (“Plaintiff’s risk of developing the condition was high enough and immediate enough that a physician recommended a major change in behavior, substantially restricting Plaintiff’s activities,” and “the risk had been demonstrated to occur previously under the same circumstances (pregnancy).”).

     [90]. See 29 C.F.R. § 1630.2(k)(3), (o)(4) (2026); 29 C.F.R. § 1630 app. § 1630.2(k) (2026) (explaining that the ADAAA confirmed the EEOC’s longstanding position that people with a record of a disability may be entitled to reasonable accommodations).

     [91]. For an argument that the ADAAA prohibits discrimination based on impairment, distinct from discrimination based on disability, see Michelle A. Travis, The Part and Parcel of Impairment Discrimination, 17 Emp. Rts. & Emp. Pol’y J. 35, 35–46 (2013).

     [92]. 623 F. App’x 990, 991, 992 n.4 (11th Cir. 2015).

     [93]. Id. at 991.

     [94]. Id.

     [95]. Id.

     [96]. Id.

     [97]. Id.

     [98]. Id. at 991–92.

     [99]. See id. at 992.

   [100]. See id. at 993. The court also rejected the district court’s holding that an incarcerated individual with a disability “is never entitled to a transfer to a different prison as a reasonable accommodation under the ADA.” See id.

   [101]. See supra note 57 and accompanying text.

   [102]. No. 20-cv-08528-JVS-KES, 2021 WL 3260607, at *9 (C.D. Cal. Jan. 6, 2021).

   [103]. Id. at 1, 10.

   [104]. See id. at 10 (citing United States v. Yoo, No. CR17-75TSZ, 2020 WL 6781611, at 2 (W.D. Wash. Nov. 18, 2020) and United States v. Hazam, No. 18-cr-30029, 2020 WL 3265349, at *2 (C.D. Ill. June 17, 2020)).

   [105]. See Ashkan Zand, Karim Ibrahim & Bhargavi Patham, Prediabetes: Why Should We Care?, 14 Methodist DeBakey Cardiovascular J. 289, 289 (2018).

   [106]. See Tamara G. T. Leech, Elizabeth A. Adams, Tess D. Weathers, Lisa K. Staten & Gabriel M. Filippelli, Inequitable Chronic Lead Exposure: A Dual Legacy of Social and Environmental Injustice, 39 Fam. & Cmty. Health 151, 151 (2016); Gagan Flora, Deepesh Gupta & Archana Tiwari, Toxicity of Lead: A Review with Recent Updates, 5 Interdisc. Toxicology 47, 47 (2012).

   [107]. Leech et al., supra note 106, at 152, 154; see Flora, Gupta & Tiwari, supra note 106, at 48–49 (explaining lead’s effects on the nervous system, hematopoietic system, renal system, cardiovascular health, reproductive health, and bone health).

   [108]. See U.S. Dep’t of Just., Civ. Rts. Div., Investigation of the Baltimore City Police Department 1, 47 (Aug. 10, 2016), https://www.justice.gov/d9/bpd_findings_8-10-16.pdf [https://perma.cc/RW56-YLVH].

   [109]. Terrence McCoy, Freddie Gray’s Life a Study on the Effects of Lead Paint on Poor Blacks, Wash. Post (Apr. 19, 2015), https://www.washingtonpost.com/local/freddie-grays-life-a-study-in-the-sad-effects-of-lead-paint-on-poor-blacks/2015/04/29/0be898e6-eea8-11e4-8abc-d6aa3bad79dd_story.html [https://perma.cc/GQF9-A4K7].

   [110]. Id.

   [111]. See id.

   [112]. Janell Ross, Why You Should Know What Happened in Freddie Gray’s Life—Long before his Death, Wash. Post (Dec. 19, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/12/19/why-you-should-know-what-happened-in-freddie-grays-life-long-before-his-death/ [https://perma.cc/JXY9-G4XR]; McCoy, supra note 109 (describing the aggression issues and diagnoses of either attention-deficit/hyperactivity disorder or attention-deficit disorder that Gray and his sister experienced after childhood lead exposure).

   [113]. McCoy, supra note 109.

   [114]. See Emily A. Benfer, Contaminated Childhood: How the United States Failed to Prevent the Chronic Lead Poisoning of Low-Income Children and Communities of Color, 41 Harv. Env’t L. Rev. 493, 542–43 (2017).

   [115]. Id.

   [116]. Flora, Gupta & Tiwari, supra note 106, at 48, 50.

   [117]. See Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance, 64 Fed. Reg. 50140, 50158 (Sep. 15, 1999) (to be codified at 24 C.F.R. pts. 35, 91, 92, 200, 203, 206, 280, 291, 511, 570, 572, 573, 574, 576, 582, 583, 585, 761, 881, 882, 883, 886, 891, 901, 906, 941, 965, 968, 970, 982, 983, 1000, 1003, and 1005) (asserting that, under both Title II and Section 504, children with elevated blood lead levels “may fall under the definition of persons with disabilities”); Sec’y, Dep’t of Hous. & Urb. Dev. ex rel. Rolisha Mims v. Baran-Putzbach, No. 02-99-0463-8, 2000 WL 1902005, at *1 (HUDALJ Dec. 14, 2000) (HUD settlement characterizing the complainant’s daughter as having a disability due to “physical/elevated lead levels”).

   [118]. See Rochkind v. Stevenson, 164 A.3d 254, 261–64 (2017) (“Although research shows that lead exposure can cause general attention deficits and hyperactivity, these lead-caused behaviors do not necessarily indicate that an individual has [attention deficit hyperactivity disorder] because these behaviors are also symptoms of a variety of other disorders and learning disabilities.”).

   [119]. See Benfer, supra note 114, at 543.

   [120]. Note that claims involving exposure to asbestos, the primary cause of mesothelioma and a cause of cancer, may be akin to Benfer’s argument regarding exposure to lead and to the cases involving precancerous conditions, though claims regarding asbestos exposure are generally pursued under tort law rather than disability civil rights law. See Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 145–59 (2003) (fear of developing cancer is a cognizable harm in evaluating pain and suffering damages).

   [121]. See Part IV.A (discussing the possibilities and limitations of the protections available through worker safety laws and the U.S. healthcare system).

   [122]. Kafer, supra note 4, at 26–27; see Margaret Price, Mad At School: Rhetorics of Mental Disability and Academic Life 62–63 (2011) (describing crip time). The term “crip time” reflects a reclamation by disability studies scholars and activists of the word “cripple,” which has historically been used to refer to disabled people disparagingly. See Kafer, supra note 4, at 15–16.

   [123]. See Kafer, supra note 4, at 37–38.

   [124]. Id. at 38–39; see Jean E. Jackson, Stigma, Liminality, and Chronic Pain: Mind-Body Borderlands, 32 Am. Ethnol. 332, 344 (2005) (“Many sufferers of severe chronic pain are also ‘out of place’ temporally, if no one knows whether the painful state will improve, deteriorate, or remain the same.”).

   [125]. See Emma Sheppard, Performing Normal But Becoming Crip: Living with Chronic Pain, 22 Scandinavian J. Disability Rsch. 39, 41 (2020) (describing the long and difficult process of seeking validation of one’s pain or illness from medical providers and others); see also Kafer, supra note 4, at 37 (describing a time of “dis- and reorienting[] for those falling out of or exceeding diagnostic categories”).

   [126]. Price, Precarity, supra note 1, at 196, 199.

   [127]. Kafer, supra note 4, at 37.

   [128]. Michael Hanchard, Afro-Modernity: Temporality, Politics, and the African Diaspora, 11 Pub. Culture 245, 253 (1999).

   [129]. See Naa Oyo A. Kwate, The Race Against Time: Lived Time, Time Loss, and Black Health Opportunity, 14 Du Bois Rev. 497, 497, 501 (2017); see also Joshi, supra note 25, at 1630–31 (describing scholarship which argues that “Black perspectives on time are shaped by consistently having to wait for the enjoyment of basic democratic goods and rights and by regularly having time ‘stolen,’” through mechanisms like shorter life expectancies); Charles W. Mills, White Time: The Chronic Injustice of Ideal Theory, 11 Du Bois Rev. 27, 28 (2014) (arguing that racial regimes impose “particular dispositions and allocations of time that are differentiated by race” such that, if “the life expectancy of Blacks (for instance) has been diminished by these temporal deprivations, we can then say that the time they would have had has been removed”).

   [130]. See Abrokwa, “When They Enter, We All Enter,” supra note 28, at 72; Kristin N. Ray, Amalavoyal V. Chari, John Engberg, Marnie Bertolet & Ateev Mehrotra, Disparities in Time Spent Seeking Medical Care in the United States, 175 JAMA Internal Med. 1983 (2015).

   [131]. See Emerson Do Bú, Susan Eggly, Louis Penner & Nao Hagiwara, “The Doctor Will See You Now . . . But Not For Long”: Linking Physicians’ Racial Attitudes and Patients’ Discrimination Experiences to Racial Disparities in the Duration of Medical Consultations, 134 Patient Educ. & Couns. 1, 2 (2025).

   [132]. See Lauran Neergaard, A Biased Test Kept Thousands of Black People from Getting a Kidney Transplant. It’s Finally Changing., AP News (Apr. 1, 2024), https://apnews.com/article/kidney-transplant-race-black-inequity-bias-d4fabf2f3a47aab2fe8e18b2a5432135 [https://perma.cc/552X-CWLE].

   [133]. See Ana M. Reyes, Regina Royan, Joe Feinglass, Arielle C. Thomas & Anne M. Stey, Patient and Hospital Characteristics Associated with Delayed Diagnosis of Appendicitis, 158 Jama Surgery 1, 8 (2023) (finding that “non-Hispanic Black patients had significantly higher rates of delayed diagnosis when controlling for patient and hospital characteristics” than non-Hispanic White patients); Dayna Bowen Matthew, Just Medicine: A Cure for Racial Inequality in American Health Care 135–36 (2015) (explaining that “even when minority heart attack victims have access to the same insurance coverage that white patients have, they still suffer from longer wait times before doctors intervene,” a delay that persists even controlling for “age, sex, hospital characteristics, insurance status, and other confounding factors”).

   [134]. The Social Security Act requires states to offer Medicaid-eligible children and youth medically necessary services to correct and ameliorate any health conditions identified through screening and diagnostic services. See 42 U.S.C. §§ 1396a(a)(43), 1396d(a)(4)(B), 1396d(r). Federal special education law also provides a right to early intervening services for infants and toddlers “who would be at risk of experiencing a substantial developmental delay if early intervention services were not provided.” 20 U.S.C. § 1432(1). The definition of an “infant or toddler with a disability” includes not only children who are experiencing developmental delays but those who have “a diagnosed physical or mental condition that has a high probability of resulting in developmental delay.” 20 U.S.C. § 1432(5)(A)(ii) (emphasis added). Both programs, however, are woefully underfunded. See Samuel Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 282 (2020).

   [135]. See Brief of Amici Curiae Occupational Health Physicians and Public Health Experts in Support of Plaintiffs-Appellants at *13–23, Palmer v. Amazon.com, Inc., 51 F.4th 491 (2d Cir. 2022) (No. 20-3989), 2021 WL 269725; Ruqaiijah Yearby & Seema Mohapatra, Systemic Racism, The Government’s Pandemic Response, and Racial Inequities in COVID-19, 70 Emory L.J. 1419, 1423 (2021); Lindsay F. Wiley, Elizabeth Y. McCuskey, Matthew B. Lawrence & Erin C. Fuse Brown, Health Reform Reconstruction, 55 U.C. Davis L. Rev. 657, 675–76 (2021).

   [136]. See D.R. v. Mich. Dep’t of Ed., No. 16-13694, 2017 WL 4348818, at 1, 8–9 (Sep. 29, 2017) (holding that plaintiffs stated a plausible claim under the ADA, Section 504, and federal special education law on behalf of “approximately 30,000 school-age children in Flint, Michigan [put] at risk of developing a disability as a result of the elevated levels of lead in the drinking water”); Benfer, supra note 114, at 504. See generally Harriet A. Washington, A Terrible Thing to Waste: Environmental Racism and Its Assault on the American Mind (2020) (discussing how various forms of environmental racism, including disparate exposure to lead poisoning, can lead to health harms and certain disabilities); Mich. C.R. Comm’n, The Flint Water Crisis: Systemic Racism Through the Lens of Flint (2017), https://www.michigan.gov/mdcr/-/media/Project/Websites/mdcr/mcrc/reports/2017/flint-crisis-report-edited.pdf?rev=4601519b3af345cfb9d468ae6ece9141 [https://perma.cc/SY3M-XAUF] (describing the role of systemic racism in contributing to the Flint water crisis); John Eligon, A Question of Environmental Racism in Flint, N.Y. Times (Jan. 21, 2016), https://www.nytimes.com/2016/01/22/us/a-question-of-environmental-racism-in-flint.html [https://perma.cc/YQ67-9WQ7] (considering the role of systemic racism in the Flint water crisis).

   [137]. P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1098, 1103–05 (C.D. Cal. 2015).

   [138]. See id. at 1104–05, 1109–11. See generally Hattem, supra note 24 (discussing complex trauma in carceral settings).

   [139]. For a discussion on racial disparities and subordination within the carceral system, see generally, Talitha L. LeFlouria, Chained in Silence: Black Women and Convict Labor in the New South (2016); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012); Joey L. Mogul, Andre J. Ritchie & Kay Whitlock, Queer (In)justice: The Criminalization of LGBT People in the United States (2012).

   [140]. See Belt, supra note 24, at 795–97.

   [141]. See Jamelia Morgan, Contesting the Carceral State with Disability Frames: Challenges and Possibilities, 170 U. Pa. L. Rev. 1905, 1907–09 (2022); Beth Ribet, Naming Prison Rape as Disablement: A Critical Analysis of the Prison Litigation Reform Act, the Americans with Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy, 17 Va. J. Soc. Pol’y & L. 281, 281–95 (2010).

   [142]. See Christopher Mathias, Here’s Kalief Browder’s Heartbreaking Research Paper on Solitary Confinement, Huffington Post (June 23, 2015), https://www.huffpost.com/entry/kalief-browder-solitary-confinement-research-paper_n_7646492 [https://perma.cc/N38L-5EFR]; Robert Siegel, Browder ‘Completely Traumatized’ After Being Abused in Jail, NPR (June 8, 2015), https://www.npr.org/2015/06/08/412942624/browder-completely-traumatized-after-being-abused-in-jail [https://perma.cc/5KQ4-ZXG9].

   [143]. See Mathias, supra note 142 (pages 2–3 of Browder’s embedded essay).

   [144]. Deion Browder, My Mom Died Trying to Preserve the Legacy of Her Son. Keeping Kids out of Solitary Will Preserve Hers., USA Today (Apr. 23, 2019), https://www.usatoday.com/story/opinion/policing/spotlight/2019/04/23/kalief-browder-suicide-solitary-confinement-venida-browder-policing-the-usa/3540366002/ [https://perma.cc/65TQ-8FHP].

   [145]. See Diana J. Burgess, Joseph Grill, Siamak Noorbaloochi, Joan M. Griffin, Jennifer Ricards, Michelle van Ryn & Melissa R. Partin, The Effect of Perceived Racial Discrimination on Bodily Pain among Older African American Men, 10 Pain Med. 1341, 1345 (2009).

   [146]. See Alice Abrokwa, Regulating the Pains of Racial Discrimination, 18 St. Louis U. J. Health L. & Pol’y 1, 13–15 (2024) [hereinafter Abrokwa, Regulating the Pains]; Inst. of Med., Pain and Disability: Clinical, Behavioral, and Public Policy Perspectives 12 (Marian Osterweis, Arthur Kleinman & David Mechanic eds., 1987) (describing pain-related disabilities); Katherine L. Moore, Pain is Enough: Chronic Pain as Disability, 69 Buff. L. Rev. 1471, 1473–76, 1498–1507 (2021) (arguing that chronic pain is itself a disability).

   [147]. See Abrokwa, Regulating the Pains, supra note 146, at 27.

   [148]. Note also that some impairments that could be disabling in the future are disproportionately more common among certain racial or ethnic groups, increasing their odds of future disability. For instance, the sickle cell trait, which is significantly more prevalent among Black people, has the immediate effect of altering the hemoglobin gene, although, like the BRCA1 genetic mutation, it may never cause symptoms for some people. See Diego A. Vargas-Hernández, Adriana Catalina Uscategui-Ruiz, Andrés Jesus Prada-Rueda & Consuelo Romero-Sánchez, Sickle Cell Trait, Clinical Manifestations and Outcomes: A Cross-Sectional Study in Colombia: Increasing Rate of Symptomatic Subjects Living in High Altitude, Mediterranean J. Hematology & Infectious Diseases 1–2 (2023); Charles v. Comm’r of Soc. Sec., No. 22-CV-370 JD, 2023 WL 6439525, at 1, 2 n.2 (N.D. Ind. Oct. 3, 2023); Jelili Ojodu, Mary M. Hulihan, Shammara N. Pope, Althea M. Grant, Incidence of Sickle Cell Trait — United States, 2010 1156–57 tbls. 2 & 3 (2014), https://www.cdc.gov/mmwr/pdf/wk/mm6349.pdf [https://perma.cc/HW6L-KXUJ].

   [149]. Research shows that people of color, among other marginalized populations, are less likely to have their accommodation requests granted. See Shirley Lin, Bargaining for Integration, 96 N.Y.U. L. Rev. 1826, 1863–66 (2021) (describing empirical studies finding that White employees are three times more likely than Black employees to have their employer proactively suggest disability accommodations for them, that women are more likely to be denied accommodation requests, and that transgender workers of color had the lowest odds of receiving a requested accommodation).

   [150]. See Lorr, supra note 24, at 1300–06; see also infra note 302 (discussing Lorr’s description of how disability may be “reinscribed”).

   [151]. Dorfman, supra note 38, at 1785–86.

   [152]. Id. at 1786, 1795.

   [153]. Wholly prospective effects of a health condition are likely to fall within the scope of the Genetic Information Nondiscrimination Act of 2008, although that statute does not provide a right to reasonable accommodations. See 42 U.S.C. §§ 2000ff–2000ff-11.

   [154]. See 42 U.S.C. §§ 12112(b)(5) (requiring reasonable accommodations only for qualified individuals with a disability who have a physical or mental impairment (or limitation)), 12201(h) (providing that reasonable accommodations are not required for an individual who only meets the definition of an individual with a disability under the “regarded as” prong). This conclusion does not undermine the argument in Part III of this Article that an individual who is regarded as someone who will acquire a disability in the future and is treated adversely as a result, i.e., an individual subjected to preemptive disability stigma, should meet the legal definition of a person with a disability. In that circumstance, the theory of discrimination (stigma) does not depend on the existence of an actual impairment as does the theory of discrimination (failure to accommodate) underlying the anticipatory accommodations framework. See Samuel Bagenstos, Subordination, Stigma, and “Disability,” 86 Va. L. Rev. 397, 437–38 (2000) (applying Erving Goffman’s understanding of stigma as an “undesired differentness” to disability discrimination and arguing that such stigma is “as much about social attitudes as about the traits themselves; even if an individual can ‘cure’ a stigmatized trait, she may still not be accepted in the community of ‘normals’”).

   [155]. Kim E. Nielsen, A Disability History of the United States xv (2012).

   [156]. See supra pp. 1197–98.

   [157]. 42 U.S.C. § 12102(4)(D).

   [158]. See Joshi, supra note 25, at 1628–29 & n.23; Washington, supra note 25, at 541–42.

   [159]. 606 U.S. 46, 49–50 (2025).

   [160]. See id.

   [161]. See id. at 50, 63.

   [162]. See id. at 50–51.

   [163]. See id. at 60–65; see also Stanley v. City of Sanford, No. 20-CV-629-WWB-GJK, 2021 WL 6333059 at *3 (M.D. Fla. Mar. 1, 2021), aff’d, 83 F.4th 1333, 1340–42 (11th Cir. 2023).

   [164]. Justices Alito, Sotomayor, and Kagan joined this discussion of the opinion in full. See Stanley, 606 U.S. at 48. Justice Jackson dissented from the majority opinion but substantively agreed that the potential pathway for suing articulated in Part III of Justice Gorsuch’s opinion was “especially promising.” See id. at 79 n.4 (Jackson, J., dissenting). Jackson, however, would not have limited the plaintiff’s ability to sue to this timeframe. See id. at 85–88 (Jackson, J., dissenting).

   [165]. See id. at 61–62.

   [166]. See Sheppard, supra note 125, at 41–42 (discussing the “time to move from definitively-not-disabled to disabled-maybe-possibly-yes” as “hover[ing] on the edge of crip time” and explaining that “the newly-disabled, or newly-differently-disabled person ceases to be normatively orientated in time, and begins moving in crip time”).

   [167]. See Stanley, 606 U.S. at 63.

   [168]. Id. at 86 (Jackson, J., dissenting).

   [169]. See 42 U.S.C. § 12102(1).

   [170]. See Porter, Entrenchment, supra note 26, at 88.

   [171]. Ellen Samuels, Six Ways of Looking at Crip Time, in Disability Visibility: First-Person Stories from the Twenty-First Century 189, 194 (Alice Wong ed. 2020).

   [172]. Porter, Entrenchment, supra note 26, at 88.

   [173]. Lin, supra note 19, at 318–19; see also infra Part IV.A (calling for less focus on legal adjudication in favor of structural reforms that are universally accessible, like the kinds of mass accommodations that were widely adopted during the COVID-19 pandemic).

   [174]. See infra Part IV.A.

   [175]. See EPA Launches Biggest Deregulatory Action in U.S. History, EPA (Mar. 12, 2025), https://www.epa.gov/newsreleases/epa-launches-biggest-deregulatory-action-us-history [https://perma.cc/4GQZ-Y8K5]; Tre’Vaughn Howard, Trump’s OSHA Proposes Loosening Workplace Safety Regulations, Bloomberg Law (Sep. 4, 2025), https://news.bloomberglaw.com/daily-labor-report/trumps-osha-proposes-loosening-workplace-safety-regulations [https://perma.cc/C93N-8L72].

   [176]. For an analogous example, consider Martha Minow’s observations about the “dilemma of difference” reflected in federal special education law. See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 35–40 (1991). As Minow notes, the relevant statute incorporates “restraints [on school officials] against labeling a child as disabled—as different—because history shows the stigmatizing and often segregative consequences of such labeling” while also encompassing a mechanism for “parents to secure the label of ‘different’ when they believe that doing so will help the child obtain useful educational assistance.” Id. at 36. This observation is not a critique of parents who use this important law to obtain needed services for their child, but rather a recognition that laws providing rights based on having a status that differs from an implicit or explicit norm, even when used as intended, may carry with them stigma regarding that difference. As I argue in this Article, such risk of inadvertent stigmatization is likely heightened when, unlike the example Minow provides, the law is used beyond its original scope.

   [177]. See Susan Wendell, the Rejected Body: Feminist Philosophical Reflections on Disability 82–83 (1996) (“Even people with disabilities who identify strongly with being disabled and have very happy, fulfilling lives might want to be cured, not for social reasons, but because they want to have less pain or physical or mental difficulty.”); Kafer, supra note 4, at 27 (“[A] desire for a cure is not necessarily an . . . anti-disability-rights and justice position.”).

   [178]. See, e.g., 29 C.F.R. § 1630 app. 1630.2(1) (2026) (explaining Congress’s aim to prohibit discrimination against individuals who are regarded as disabled due to unwarranted fears about disability); 29 C.F.R. § 1630 app. 1630.2(r) (2026) (explaining that employers may not conclude that an individual is a direct threat to the health or safety of themselves or others based “on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes[] about the nature or effect of a particular disability, or of disability generally”); 29 C.F.R. § 1630 app. 1630.15(d) (2026) (explaining that an employer may not successfully defend against a claim that it failed to provide a reasonable accommodation based on the argument that the accommodation would be unduly disruptive to other workers if that disruption “were the result of those employees[’] fears or prejudices towards the individual’s disability”).

   [179]. Harris, supra note 14, at 665–66 (emphasis added); see Barnes, supra note 6, at 54–77; Kafer, supra note 4, at 27–28.

   [180]. Barnes, supra note 6, at 55.

   [181]. Louis Jacobson, Fact-checking Robert F. Kennedy Jr.’s Statements on Autism, PBS News (Apr. 23, 2025), https://www.pbs.org/newshour/politics/fact-checking-robert-f-kennedy-jr-s-statements-on-autism [https://perma.cc/RVP4-299U].

   [182]. Though U.S. Department of Health and Human Services Secretary Robert F. Kennedy Jr. has now shut down this research, epidemiologists at the National Institute for Occupational Safety and Health had, for years, been researching how an individual’s exposure to toxic chemicals in the workplace, coupled with the more determinative factor of genetics, is associated with greater likelihood that a future child is born with autism. See generally Sharon Lerner, RFK Jr. Vowed to Find the Environmental Causes of Autism. Then He Shut Down Research Trying to Do Just That., ProPublica (Aug. 20, 2025), https://www.propublica.org/article/rfk-jr-autism-environment-research-funding [https://perma.cc/37SM-SBW8]. Instead, despite decades of research to the contrary, Kennedy has amplified theories that vaccines cause autism. See Sheryl Gay Stolberg, Kennedy Says He Told C.D.C. to Change Website’s Language on Autism and Vaccines, N.Y. Times (Dec. 2, 2025), https://www.nytimes.com/2025/11/21/us/politics/rfk-jr-cdc-vaccines-autism-website.html [https://perma.cc/EY32-95PZ]. Either basis, whether warranted or not, might prompt a worker to seek pre-impairment anticipatory accommodations like protective gear or exemptions from any worker vaccination requirements.

   [183]. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 (1999).

   [184]. Wilson, supra note 29, at 1747.

   [185]. Elizabeth F. Emens, Framing Disability, 2012 U. Ill. L. Rev. 1383, 1386 (2012).

   [186]. Id.

   [187]. Emens uses the terms “inside” and “outside” view of disability to describe “ways of looking at disability, rather than the direct experience of disability,” thus Emens explains that “[a]lthough experience with disability is correlated with an inside perspective, being disabled is neither necessary nor sufficient for an inside perspective in [Emens’s] account.” Id. at 1386 n.3 (emphasis added); see also Wilson, supra note 29, at 1725 (“The use of the ADA to challenge environmental injustice also risks putting people without exact proximity or relationship to the disabled identity or experience in control of a narrative about disability.”).

   [188]. See Ben Mattlin, Disability Pride: Dispatches from a Post-ADA World 33–46 (2022); Alice Wong, Disability Visibility: First-Person Stories from the Twenty-First Century xv-xxii (2020); Wendell, supra note 177, at 66–69; Harris, supra note 14, at 665–66; Sheppard, supra note 125, at 43.

   [189]. Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 2 Du Bois Rev. 313, 318 (2013).

   [190]. See Wilson, supra note 29, at 1749 (describing critiques of “the framing of environmental justice concerns in terms of the fear or threat of disability”).

   [191]. See id.

   [192]. Id. (quoting Valerie Ann Johnson, Bringing Together Feminist Disability Studies and Environmental Justice, in Disability Studies and the Environmental Humanities: Toward an Eco-Crip Theory 77 (Sarah Jaquette Ray & Jay Sibara eds., 2017)).

   [193]. Khiara M. Bridges, The Dysgenic State: Environmental Injustice and Disability-Selective Abortion Bans, 110 Calif. L. Rev. 297, 301 (2022).

   [194]. See generally Johnson, supra note 14, at 1370–71 (describing critiques of “[t]he thin normative goal of preventing discrimination”); Harris, supra note 14, at 664 (arguing that an emphasis on rights “privileges the remedial role of law, and thus, relies heavily on lawyers to construct narratives of legal harm that respond to rigid legal categories and remedies rather than lived experiences”).

   [195]. See Tarunabh Khaitan, A Theory of Discrimination Law 121 (2015) (characterizing the overarching aim of discrimination law as to “reduce (and ultimately remove) any significant advantage gap between a protected group and its cognate groups”).

   [196]. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 413 (1979) (holding that “refusal to accommodate the needs of a disabled person amounts to discrimination” in some circumstances).

   [197]. Bridges, supra note 193, at 304.

   [198]. See Lindsay F. Wiley & Samuel R. Bagenstos, The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law, 52 Ariz. St. L. J. 1235, 1298 (2020) (discussing the employer’s and the government’s respective obligations to provide accommodations for at-risk and disabled workers during the COVID-19 pandemic).

   [199]. In holding that Darby had adequately pled she was an individual with a disability under the ADA, the Sixth Circuit noted there was some ambiguity as to whether Darby was asserting a failure to accommodate claim in connection with her request for leave to undergo the double mastectomy. See Darby II, 964 F.3d 440, 444 (6th Cir. 2020). Darby’s amended complaint alleged that the defendant “denied [Darby] a reasonable accommodation and terminated her because of her disability,” yet the Sixth Circuit noted that Darby’s employer had granted her request for leave to undergo the surgery and Darby’s counsel seemingly disavowed a failure to accommodate claim at oral argument for her appeal. Amended Complaint at 5, Darby I, No. 18-cv-00669-MRB (S.D. Ohio Nov. 16, 2018), Dkt. No. 5; see Darby II, 964 F.3d at 444. Had Darby intended to raise a failure to accommodate claim, the underlying theory would have aligned with the plaintiff’s argument in Lonergan. See Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990, 991–92 (11th Cir. 2015).

   [200]. Valerie Gutmann Koch, Previvors, 49 Fla. St. U. L. Rev. 643, 643, 655, 656 (2022). Koch suggests that the definition of “previvor” within legal literature, as opposed to popular understanding, “should be inclusive of all individuals with a hereditary mutation, a family history of a specific disease, or some other predisposing factor, for which preventative action or prophylactic interventions can be undertaken.” Id. at 652. Some who meet Koch’s proposed definition—for instance, an individual with a hereditary mutation—may have an impairment in the present that satisfies the definition of disability under the rationales in Bragdon, Darby, Lonergan, and other cases.

   [201]. Koch explains that previvors may occupy “liminal spaces” between health and sickness. Id. at 658. That framing usefully applies here because the porousness of disability status likewise indicates there is a liminal space between disabled and nondisabled. For a discussion on the liminal status that those experiencing chronic pain may experience and the stigmatization of that status, see Jackson, supra note 124, at 333.

   [202]. See Arline T. Geronimus, Weathering the Pandemic: Dying Old at a Young Age from Pre-existing Racist Conditions, 27 Wash. & Lee J. C.R. & Soc. Just. 409, 430 (2021); see also Abrokwa, Regulating the Pains, supra note 146, at 8–9 (discussing further the term “weathering”).

   [203]. Geronimus, supra note 202, at 430–32; see also Abrokwa, Regulating the Pains, supra note 146, at 9 & n.35; Joanna M. Hobson, Myles D. Moody, Robert E. Sorge & Burel R. Goodin, The Neurobiology of Social Stress Resulting from Racism: Implications for Pain Disparities among Racialized Minorities, 12 Neurobiology Pain 2, 2 (2022) (explaining the “weathering hypothesis,” which theorizes that constant social and economic inequities are associated with accelerated declines in health for people of color, contributing to racial health disparities); Richard Sima, Racism Takes a Toll on the Brain, Research Shows, Wash. Post (Feb. 16, 2023), https://www.washingtonpost.com/wellness/2023/02/16/racism-brain-mental-health-impact/ [https://perma.cc/M9EU-9PPY] (describing how “chronic and constant racial stress” has negative health effects on the neurological function of the brain).

   [204]. Samuels, supra note 171, at 190 (emphasis omitted). Because weathering involves a physiological response to stress, it does not appear to implicate the “missing impairment problem” that Doron Dorfman describes. See supra notes 151–152 and accompanying text.

   [205]. See Arline T. Geronimus, Weathering: The Extraordinary Stress of Ordinary Life in an Unjust Society 38 (2023); Laurel Wamsley, Erica Garner, Who Became an Activist After Her Father’s Death, Dies, NPR (Dec. 30, 2017), https://www.npr.org/sections/thetwo-way/2017/12/30/574514217/erica-garner-who-became-an-activist-after-her-fathers-death-dies [https://perma.cc/DK2W-PAA6].

   [206]. Wamsley, supra note 205.

   [207]. See id.; Geronimus, supra note 205, at 38.

   [208]. Geronimus, supra note 205, at 39.

   [209]. Id. at 38. Garner’s enlarged heart would likely be considered a physical impairment within the meaning of the ADA, though her early death obscures a considered analysis of whether and, if so, when that impairment would further be considered a disability under the law.

   [210]. See Khiara M. Bridges, Race in the Machine: Racial Disparities in Health and Medical AI, 110 Va. L. Rev. 243, 327 (2024).

   [211]. See, e.g., Jiam Li, Timothy A. Matthews, Thomas Clausen & Reiner Rugulies, Workplace Discrimination and Risk of Hypertension: Findings From a Prospective Cohort Study in the United States, 12 J. Am. Heart Ass’n 1, 2–3 (2023) (prospective cohort study measuring workplace discrimination, such as the use of “ethnic, racial, or sexual slurs or jokes” by a respondent’s supervisor or coworker, and finding that “exposure to high levels of workplace discrimination was associated with a 54% elevated risk of hypertension among US workers”); see also Kwate, supra note 129, at 509 (“Black people face a bind in which the deleterious effects of experienced racism might be attenuated, but doing so requires the allocation of still more cognitive and instrumental time expenditures.”).

   [212]. See 42 U.S.C. § 12111(8) (defining “qualified individual”).

   [213]. See 42 U.S.C. §§ 12112(a), 12132, 12182(a); 29 U.S.C. § 794(a).

   [214]. The adverse treatment need not even come from the employer’s own beliefs if the employer treats the individual adversely based on others’ perceptions. See Bagenstos, Subordination, Stigma, and “Disability,” supra note 154, at 447–48 (suggesting a hypothetical in which a restaurant owner bars an individual from eating at the restaurant because of other customers’ negative reactions to and presumptions about the individual’s skin disfigurement).

   [215]. Id. at 437; see Abrokwa, Too Stubborn to Care For, supra note 28, at 475–76 (explaining “the ableist presumption that human value is based on one’s capacity to produce economically” that informed early American understandings of the term “disability”); Shinall, supra note 12, at 625 (explaining that the reasonable accommodation requirement, by “enabling individuals to be productive, contributing members of the labor market through accommodation,” theoretically should work to “reduce any social stigma attached to their condition”).

   [216]. See Abrokwa, Too Stubborn to Care For, supra note 28, at 474 (citing Talila “TL” Lewis’s definition of ableism as “a system that places value on people’s bodies and minds based on societally constructed ideas of normalcy, intelligence, excellence, and productivity”).

   [217]. See Bagenstos, Subordination, Stigma, and “Disability,” supra note 154, at 423, 437–38 (explaining that “[a]lthough ‘stigma’ refers colloquially to animus and prejudice,” it can also be understood more broadly, as Erving Goffman contends, “when prevailing social practices treat particular ‘undesirable’ traits as universally discrediting”).

   [218]. In the employment context, Section 504 adopts the ADA’s definition of “individual with a disability.” See 29 U.S.C. §§ 701, 705(20)(B).

   [219]. 42 U.S.C. § 12102(1), (3)(A) (emphasis added).

   [220]. 42 U.S.C. § 12102(3)(B). Notably, the statute defines a “transitory impairment” but does not define what constitutes a “minor” impairment. See id. Given my focus on the temporal nature of ADA claims, it is beyond the scope of this Article to analyze when an impairment is “minor.” For discussion of this issue and courts’ misapplication of the transitory and minor exception to the “regarded as” prong, see Porter, supra note 21, at 407–09.

   [221]. See sources cited infra note 277. STME also builds upon the rationale articulated in Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1113 (8th Cir. 2016) (holding that the ADA does not prohibit an employer from acting on their assessment that “there is an unacceptable risk of a future physical impairment”). See also Equal Emp. Opportunity Comm’n v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (holding that the ADA “prohibits discrimination on the basis of an ‘actual or perceived impairment’ in the present tense” (citation omitted)).

   [222]. Equal Emp. Opportunity Comm’n v. STME, LLC (STME I), 309 F. Supp. 3d 1207, 1209 (M.D. Fla 2018), aff’d, Equal Emp. Opportunity Comm’n v. STME, LLC (STME II), 938 F.3d 1305 (11th Cir. 2019).

   [223]. Id. at 1210.

   [224]. See id. at 1212–13.

   [225]. Lowe v. STME, LLC, 354 F. Supp. 3d 1311, 1313 (M.D. Fla. 2019).

   [226]. See Josh Sanburn, Ebola Brings Another Fear: Xenophobia, Time (Oct. 29, 2014), https://time.com/3544130/ebola-panic-xenophobia/ [https://perma.cc/6ZE5-P249] (describing harassment, stereotyping, and other discrimination experienced by African immigrants in the United States during the Ebola outbreak of 2014-2016); infra pp. 1244–46.

   [227]. STME I, 309 F. Supp. 3d at 1212.

   [228]. Id.

   [229]. Id. at 1213.

   [230]. STME II, 938 F.3d at 1311.

   [231]. The Eleventh Circuit’s analysis in STME is flawed in many ways, including that the language cited here wrongly equates being healthy with being nondisabled. See id. at 1315.

   [232]. Id.

   [233]. See, e.g., Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331, 335–37 (7th Cir. 2019) (citing STME II approvingly and interpreting the Dictionary Act and the use of the passive voice in the relevant ADA text as indicating that the ADA does not encompass “regarded as” claims challenging adverse treatment based on a perceived risk the plaintiff will be impaired in the future); sources cited infra note 277.

   [234]. See STME II, 938 F.3d at 1315.

   [235]. 42 U.S.C. § 12102(1)(A).

   [236]. Id. § 12102(1)(B), (C).

   [237]. STME II, 938 F.3d at 1315. To underscore its view, the court adds the word “present” before the phrase “physical or mental impairment” when citing the statutory text of the actual disability prong. See id.

   [238]. Id. at 1315–16.

   [239]. Id. at 1316 (emphasis added). Other courts have read the phrase “regarded as having” as allowing for temporal flexibility. See, e.g., Bartone v. Mattera, No. 15-CV-6362, 2016 WL 6537957, at *5 n.10 (E.D.N.Y. Nov. 3, 2016) (plaintiff failed to allege she was “regarded as having had a disability” (emphasis added)); Montesano v. Westgate Nursing Home, Inc., 956 F. Supp. 2d 417, 423 (W.D.N.Y. 2013) (“Plaintiff may also establish a claim by showing that she was ‘regarded as having . . . an impairment’ by defendants. This means that plaintiff must show that at some point in the past, ‘she was classified or misclassified as having a mental or physical impairment that substantially limits a major life activity.’” (emphasis added)).

   [240]. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (applying the rule against superfluities, in which “[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant” (internal quotation marks and citations omitted)).

   [241]. Sutton v. United Air Lines, 527 U.S. 471, 498 (1999) (Stevens, J., dissenting) (internal alternations and quotation marks omitted).

   [242]. See Mancini v. City of Providence ex rel. Lombardi, 909 F.3d 32, 40 (1st Cir. 2018) (“[R]ecord of disability may be satisfied by a showing that the plaintiff had a disability in the past (even though he no longer suffered from that disability when the allegedly discriminatory action took place).”); supra note 46.

   [243]. See H.R. Rep. No. 101-485(III), at 29 (1990) (House Report on the ADA explaining that the “record of” prong includes “those who have recovered from an impairment” such as “a person who had, but no longer has, cancer”); S. Rep. 93-1297, at 6389 (1974) (Senate Report on the Rehabilitation Act explaining that the coverage of Section 504 “extends to persons who have recovered—in whole or in part—from a handicapping condition”); see also 29 C.F.R. § 1630 app. 1630.2 (k) (2025) (“[T]he ‘record of’ provision would protect an individual who was treated for cancer ten years ago but who is now deemed by a doctor be free from cancer, from discrimination based on that prior medical history.”).

   [244]. H.R. Rep. 101-485(III), at *30 (1990) (emphasis added).

   [245]. I note that the “regarded as” prong of the definition of “disability” also refers to an individual “being” regarded as having such an impairment, and thus the word “being” might similarly be understood to include the future tense under the Dictionary Act. See 42 U.S.C. § 12102(1)(C); 1 U.S.C. § 1. However, the present participle words “being” and “having” in the “regarded as” prong are used in different manners; whereas the word “having” functions as a verb in the statutory phrase, the word “being” functions as an adjective describing the individual as “being regarded” as disabled. See 42 U.S.C. § 12101(1)(C); Bagenstos, Subordination, Stigma, and “Disability,” supra note 154, at 447 (describing a potential plaintiff as having “the status of ‘being regarded’” as disabled). With this context, the word “being” has no verb tense to which the Dictionary Act applies. See 1 U.S.C. § 1. Even courts disagreeing with the EEOC’s analysis of the Dictionary Act have noted that “[t]he key word is ‘having,’” rather than focusing on the word “being” in the statutory definition. Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331, 336 (7th Cir. 2019).

   [246]. Instead of describing “a record of such an impairment,” 42 U.S.C. § 12102(1)(B), Congress might have specified that the individual must have “a record of” having or even having had such an impairment.

   [247]. See 1 U.S.C. § 1.

   [248]. STME II, 938 F.3d 1305, 1317 (11th Cir. 2019) (citing 1 U.S.C. § 1).

   [249]. The Eleventh Circuit suggests that the EEOC’s argument requires reading the statute to mean the “extraordinarily awkward” phrase “being regarded as will be having such an impairment,” but the alternative suggested here—“being regarded as an individual who will have such an impairment”—shows that the court’s concern is overstated. Id. I further recognize that, under the interpretation I propose here, an individual who currently has no impairment but is regarded as someone who will have a disability in the future would fall within the scope of the regarded as prong, even though individuals who presently have transitory and minor impairments fall outside the scope of the regarded as provision. See 42 U.S.C. § 12102(3)(B). This difference may seem paradoxical, but the “transitory and minor” exception relates to the substantiality of the impairment and not whether the employer regards the impairment as existing in the present or in the future. See 29. C.F.R. § 1630 app. 1630.2(1) (discussion of Sections 1630.2(j)(1)(ix) and 1630.2(l) explaining that Congress adopted this exception in response to concerns from the employers that the “regarded as” provision would otherwise be misused by individuals who have only transitory and minor impairments “like the cold or flu”).

   [250]. Doukas v. Metro. Life Ins. Co., No. CIV-4-478-SD, 1997 WL 833134, at *4 (D.N.H. Oct. 21, 1997) (explaining that “[t]he ‘regarded as’ definition of disability seeks to eradicate discrimination based on prejudice or irrational fear” and “[f]ear, almost by definition, refers not to actual present conditions, but to anticipated future consequences”).

   [251]. Id.; see Winslow v. IDS Life Ins. Co., 29 F. Supp. 2d 557, 561 (D. Minn. 1998) (“[T]he purpose of the ADA requires that ADA protection extend to cover perception of possible future disability.”).

   [252]. See STME II, 938 F.3d at 1317.

   [253]. 42 U.S.C. § 12102(3)(A).

   [254]. STME II, 938 F.3d at 1317–18 (emphasis added). This assertion appears incorrect as a grammatical matter in that the phrase “has been subjected” reflects the present perfect tense. See Chicago Manual of Style ¶ 5.132 (17th ed. 2017) (explaining that the present perfect tense “denotes an act, state, or condition that is now completed or continues up to the present” and “is distinguished from the past tense because it refers to (1) a time in the indefinite past . . . or (2) a past action that comes up to and touches the present” (emphasis added)); see also Dobrova v. Holder, 607 F.3d 297, 302 (2d Cir. 2010) (explaining that the present perfect tense can refer to “a past action that has continuing relevance” and interpreting the statutory phrase “has . . . been admitted” to include individuals “who were and still are admitted”); In re Restivo Auto Body, Inc., 772 F.3d 168, 174 (4th Cir. 2014) (“[W]e give effect to Congress’ use of the present perfect tense . . . especially since Congress used the present tense within the same sentence.”).

   [255]. STME II, 938 F.3d at 1317–18.

   [256]. Similarly, the Seventh Circuit held in Shell v. Burlington in response to the same argument that “[t]he Dictionary Act adds little . . . because its general instruction cannot overcome the plain meaning of the ADA’s statutory text,” thus “the ‘context [that] indicates otherwise’ here comes from the ordinary import of the language Congress employed in § 12102(1)(C) and § 12102(3)(A).” 941 F.3d 331, 336 (7th Cir. 2019). Accordingly, the Seventh Circuit concluded that it could disregard how Congress directed present tense language in “any Act of Congress,” 1 U.S.C. § 1, to be interpreted because the ADA uses present tense language that, in the court’s view, ordinarily will mean the present tense to the exclusion of the future tense. Id. at 336. This amounts to the court simply choosing not to follow Congress’s directive in the Dictionary Act.

   [257]. STME II, 938 F.3d at 1316.

   [258]. See 42 U.S.C. § 12112(b)(2), (3) (prohibiting covered entities from participating in an arrangement or relationship “that has the effect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter” and from “utilizing standards, criteria, or methods of administration . . . that have the effect of discrimination on the basis of disability”); Alexander v. Choate, 469 U.S. 287, 296–97 (1985) (explaining that “much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent”); Payan v. L.A. Cmty. Coll. Dist., 11 F.4th 729, 737 (9th Cir. 2021) (describing the “historical understanding that Section 504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by ‘thoughtless indifference’ or ‘benign neglect,’ such as physical barriers to access public facilities”). Notably, the current administration’s efforts by executive order to eliminate disparate impact liability in race and sex discrimination cases imperils the theory for all protected traits, though it remains to be seen how courts will regard this executive action. See Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 23, 2025). At least two justices on the Supreme Court have explicitly invited an opportunity to reconsider unintentional discrimination liability in the disability civil rights context. See A. J. T. ex rel. A. T. & G. T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279, 605 U.S. 335, 351–53 (2025) (Thomas, J., concurring).

   [259]. See 42 U.S.C. § 12112(a).

   [260]. 42 U.S.C. § 12132.

   [261]. 42 U.S.C. § 12112(a) (emphasis added).

   [262]. See 42 U.S.C. § 12112(b)(4). Despite the textual difference between Title I and Title II, see supra notes 259–260, all federal circuit courts to consider the issue have held that the associational discrimination provision extends to Title II claims, even if some courts disagree about which theories of associational discrimination support Article III standing. See, e.g., Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1157 n.17 (9th Cir. 2013) (holding that Title II’s enforcement provision allows for a cause of action for individuals without disabilities); A Helping Hand, LLC v. Baltimore Cnty., MD, 515 F.3d 356, 362–64 (4th Cir. 2008) (same); Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 405–06 (3d Cir. 2005) (abrogated on other grounds) (same); MX Grp., Inc. v. City of Covington, 293 F.3d 326, 334–35 (6th Cir. 2002) (holding that the U.S. Department of Justice’s regulation prohibiting associational discrimination is aligned with congressional intent for Title II); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 46–48 (2d Cir. 1997) (abrogated on other grounds) (holding that Title II’s enforcement provision allows for a cause of action for individuals without disabilities). Such claims are also viable under Title III of the ADA. See, e.g., McCullum v. Orlando Reg’l Healthcare Sys. Inc., 768 F.3d 1135, 1142 (11th Cir. 2014) (Title III case holding that individuals without disabilities may bring associational discrimination claims). But see Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1340–42 (N.D. Ga. 2017).

   [263]. STME II, 938 F.3d 1305, 1316 (11th Cir. 2019); see also Travis, supra note 34, at 998 (arguing that the “regarded as” prong under the ADAAA can be understood “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 ‘actual’ and ‘record of’ disability prongs” since such plaintiffs need not show they have any impairment).

   [264]. STME II, 938 F.3d at 1316; see also 29 C.F.R. § 1630 app. 1630.2(h) (2025) (stating that the definition of impairment “does not include characteristic predisposition to illness or disease”).

   [265]. 29 C.F.R. § 1630 app. 1630.2(h) (2025).

   [266]. See STME II, 938 F.3d at 1315.

   [267]. See id.

   [268]. See 42 U.S.C. § 12102(3)(A).

   [269]. See H.R. Rep. 101-485(III), at *30 (1990).

   [270]. Id.

   [271]. Id.; 480 U.S. 273, 284–86 (1987).

   [272]. H.R. Rep. 101-485(III), at *30 (1990).

   [273]. Arline, 480 U.S. at 283; see also id. at 284 (“[S]ociety’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”). Consider also a person with a skin condition that resembles the lesions caused by Kaposi’s sarcoma, commonly associated with HIV and AIDS, who may be limited in their ability to work not because of the skin condition but because of others’ disability-based assumptions and fears about the condition.

   [274]. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).

   [275]. See Travis, supra note 34, at 949–51 (explaining that, prior to the 2008 amendments, courts wrongly introduced a stigma requirement not set forth in the statute into “regarded as” claims by rejecting the claims if the employer regarded the plaintiff as disabled due to “‘innocent mistake’ about the impairment’s effects or severity” rather than “myths, fears, or stereotypes about disability”).

   [276]. See id. at 952–53 (“The ADAAA endorses nearly universal protection against simple discrimination under the ‘regarded as’ prong . . . [by] protect[ing] individuals against impairment-based decision making regardless of the real or perceived severity or stigmatizing nature of the impairment.”).

   [277]. See, e.g., Schmidt v. Disney Parks, Experiences and Prods., Inc., 721 F. Supp. 3d 1314, 1330–31 (M.D. Fla. 2024) (applying STME to hold that “an unvaccinated COVID-19 status only suggests a potential future impairment, not an existing one” and “the ADA does not protect potential future impairments”); Kale v. Aero Simulation Inc., No. 22-CV005081-KES, 2023 WL 6255013, at 4 (D.S.D. Sep. 26, 2023) (agreeing with STME that “future risk of contracting a contagious illness” does not qualify as a disability under the ADA); Tucker v. Wells Fargo Bank, No. 21-cv-00735-LF0JMR, 2023 WL 2712534, at 4 (D.N.M. Mar. 30, 2023) (finding a lack of authority for the claim “that an employer violates the ADA if it fails to extend ADA protections to a possible future disability”); Gallo v. Wash. Nat’ls Baseball Club, LLC, No. 22-cv-01092, 2023 WL 2455678, at 4 (D.D.C. Mar. 10, 2023) (rejecting plaintiff’s “regarded as” claim “because he has not alleged that Defendant perceived him to have a disability at the time of his termination”); D’Cunha v. Northwell Health Sys., No. 22-cv-0988 (MKV), 2023 WL 2266520, at 5 & n.5 (S.D.N.Y. Feb. 28, 2023) (“Even if [the plaintiff] was perceived of being at risk of developing COVID-19 in the future, that would not plausibly state an ADA claim.”); Cunningham v. Univ. of Haw., No. 22-cv-00504 HG-WRP, 2023 WL 1991783, at *4 (D. Haw. Feb. 14, 2023) (rejecting plaintiff’s argument that he was regarded as impaired on the ground that his unvaccinated status would make him more likely to get COVID-19 and thus be substantially limited in a major life activity because the ADA does not protect individuals who experience discrimination due to “a potential future disability” (quoting STME II, 938 F.3d 1305, 1316 (11th Cir. 2019))); Hice v. Mazzella Lifting Techs., Inc., 589 F. Supp. 3d 539, 550 (E.D. Va. 2022) (finding a lack of authority for the claim “that an employer’s concern that an employee might get sick in the future could count as a perceived disability”).

   [278]. See Hice, 589 F. Supp. 3d at 550 (“[P]ossible future exposure to COVID-19 does not constitute an impairment under the ADA.”); Parker v. Cenlar FSB, No. 20-02175, 2021 WL 22828, at 6 (E.D. Pa. Jan. 4, 2021) (“[N]otwithstanding whether contracting COVID-19 is a disability under the ADA, possible exposure to COVID-19 is not ‘a physical or mental impairment that substantially limits one or more major life activities.’”). But cf. Brown v. Roanoke Rehab. & Healthcare Ctr., 586 F. Supp. 3d 1171, 1176–77 (M.D. Ala. 2022) (finding EEOC guidance persuasive in determining that “COVID-19 can be a disability, so long as the condition is sufficiently severe to impair major life activities”). Beyond deciding whether exposure to COVID-19 is an impairment, at least one court has rejected an ADA claim on the ground that “it would yield absurd results” because “the ADA would forbid employers from enforcing any number of measures designed to stop the spread of COVID-19.” Cunningham, 2023 WL 1991783, at 4. This concern is misplaced, however, since the ADA already recognizes a “direct threat” defense if a person with a disability poses a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. §§ 12111(3), 12113(a), (b).

   [279]. See Speaks v. Health Sys. Mgmt., Inc., No. 22-CV-00077-KDB-DCK, 2022 WL 3448649, at *4 n.5 (W.D.N.C. Aug. 17, 2022) (collecting case law and noting that “[f]ederal courts have reached different conclusions” on “under what circumstances COVID-19 may be considered a disability under the ADA”).

   [280]. See supra notes 176–179 and accompanying text; see also supra notes 185–189 and accompanying text.

   [281]. See supra note 277; cf. Guerrero v. Summit Aerospace, Inc., No. 21-CV-24006, 2022 WL 579499, at 4 (S.D. Fla. Feb. 25, 2022) (plaintiff sufficiently pled a “regarded as” claim when alleging that the employer took adverse actions against him based on the employer’s perception that the plaintiff was “actively infected with Covid-19”); Booth v. GTE Fed. Credit Union, No. 8-21-cv-1509, 2021 WL 5416690, at 5 (M.D. Fla. Nov. 20, 2021) (plaintiff pled a plausible “regarded as” claim when alleging that her employer regarded her as having contracted COVID-19 and exhibiting symptoms).

   [282]. 42 U.S.C. § 12112(b)(4). Note that “[i]t is widely accepted that under both the [Rehabilitation Act] and the ADA, non-disabled individuals have standing to bring claims when they are injured because of their association with a disabled person[,]” McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014), but this question has been the subject of some disagreement among courts, see Todd v. Carstarphen, 236 F. Supp. 3d 1311, 1340–42 (N.D. Ga. 2017) (holding that the plain text of Title II and Section 504 does not authorize associational discrimination claims).

   [283]. See Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004) (cited in Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011)).

   [284]. See Stansberry, 651 F.3d at 487; Larimer, 370 F.3d at 700.

   [285]. See Stansberry, 651 F.3d at 487; Larimer, 370 F.3d at 700.

   [286]. See Stansberry, 651 F.3d at 487; Larimer, 370 F.3d at 700.

   [287]. Howe v. Wilson Sporting Goods, Co., No. 21-cv-01530-JGC, 2022 WL 36463, at *5 (N.D. Ohio Jan. 4, 2022) (emphasis added).

   [288]. See STME I, 309 F. Supp. 3d 1207, 1213–15 (M.D. Fla 2018). Notably, the court characterized Lowe’s claims of racial and national original discrimination in her own lawsuit as alleging that Lowe’s employer “did not believe she would contract Ebola due to visiting Ghana,” but terminated her “due to her interaction with black African people generally” and because the employer did not want Lowe, as a White American, to interact with Black people in Africa. See Lowe v. STME, LLC, 354 F. Supp. 3d 1311, 1313 (M.D. Fla. 2019) (internal quotation marks omitted). Lowe’s associational discrimination claim was similarly unsuccessful because Lowe had not yet associated with Black people in Ghana at the time she was terminated, with the court citing the district court opinion in STME for support. See id. at 1314–15.

   [289]. See STME I, 309 F. Supp. 3d at 1214.

   [290]. Id.

   [291]. Id. (emphases and alterations in original).

   [292]. Id. (emphasis added).

   [293]. See Opening Brief of the Equal Employment Opportunity Commission as Appellant at *14, STME II, 938 F.3d 1305 (11th Cir. 2019) (No. 18-12277-GG), 2018 WL 3731155 [hereinafter EEOC Opening Brief].

   [294]. 42 U.S.C. § 12112(b)(4).

   [295]. STME I, 309 F. Supp. 3d at 1214–15.

   [296]. See id.; see also Champion v. Mannington Mills, Inc., 538 F. Supp. 3d 1344, 1350 (M.D. Ga. 2021) (interpreting STME to hold that “there is a difference between a ‘known disability’ upon which a claim for association discrimination can be based, and a ‘disability’ that encompasses the ‘regarded as’ prong”).

   [297]. See STME II, 938 F.3d at 1319.

   [298]. EEOC Opening Brief, supra note 293, at *29.

   [299]. See id. at 29–31 (citing Marchioli v. Garland Co., No. 11-cv-124, 2011 WL 1983350, at 6–7 (N.D.N.Y. May 20, 2011) (holding that the plaintiff could prevail if he could prove he was terminated because his employer regarded the plaintiff’s girlfriend as disabled) and citing Jackson v. Serv. Eng’g, Inc., 96 F. Supp. 2d 873, 878–82, 882 n.6 (S.D. Ind. 2000) (plaintiff was associated with his wife, who had a history of liver disease but no longer had a disability at the time of the plaintiff’s termination)).

   [300]. See Jackson, 96 F. Supp. 2d at 879–82.

   [301]. See 29 C.F.R. § 1630 app. 1630.8 (2025) (discussion of Section 1630.8).

   [302]. Note that Sarah Lorr’s description of how disability may be “reinscribed” through the failure to provide needed supports highlights one way in which the anticipatory accommodations framework may be linked with disability stereotyping. See Lorr, supra note 24, at 1300–06. Consider the plaintiff in Lonergan, who was unable to participate in the prison’s programs and activities, including work opportunities, because the prison did not accommodate his precancerous condition. Lonergan v. Florida Dep’t of Corr., 623 F. App’x 990, 991–92 (11th Cir. 2015). While I have argued that seeking pre-impairment accommodations can contribute to stigmatization of disability, a failure to provide post-impairment accommodations might amplify disability-based assumptions if the person’s inability to participate in the program or activity without the accommodations is taken as evidence that they are not willing or competent to do so. See id. at 994 (“Defendants contend that it is the Plaintiff’s decision not to go outside—and not his disability—that exclude[s] him from the prison’s programs and activities.”).

   [303]. See STME II, 938 F.3d at 1318; Lowe v. STME, LLC, 354 F. Supp. 3d 1311, 1313 (M.D. Fla. 2019).

   [304]. Andrea Salcedo, Racist Anti-Asian Hashtags Spiked After Trump First Tweeted ‘Chinese Virus,’ Study Finds, Wash. Post (Mar. 19, 2021), https://www.washingtonpost.com/nation/2021/03/19/trump-tweets-chinese-virus-racist/ [https://perma.cc/NX5H-KFAT].

   [305]. See Salcedo, supra note 304; Christine Fernando & Cheyanne Mumphrey, Racism Targets Asian Food, Business During COVID-19 Pandemic, PBS News (Dec. 20, 2020), https://www.pbs.org/newshour/nation/racism-targets-asian-food-business-during-covid-19-pandemic [https://perma.cc/LC34-FS8N] (explaining that initial information suggesting COVID-19 began in bats that may have spread it to an animal sold in a “wet market[]” in Wuhan, China, “quickly got distorted in the U.S., spurring racist memes on social media that portrayed Chinese people as bat eaters responsible for spreading the virus, and reviving century-old tropes about Asian food being dirty”).

   [306]. See Hua-Yu Sebastian Cherng, Marth Moreno & Jia-Lin Liu, Health Inspector Ratings of Asian Restaurants During the Early COVID-19 Pandemic, 24 Ethnicities 1–21 (2022); Marian Chia-Ming Liu, The Coronavirus and the Long History of Using Diseases to Justify Xenophobia, Wash. Post (Feb. 14, 2020), https://www.washingtonpost.com/nation/2020/02/14/coronavirus-long-history-blaming-the-other-public-health-crises/ [https://perma.cc/FDN3-YDRM]; Frances Nguyen, The Invisible Struggle of the Asian American Small-business Owner, Vox (Oct. 29, 2020), https://www.vox.com/21536943/asian-american-restuarant-racism-coronavirus [https://perma.cc/TP5Y-FVY9]; Tracy Jan, Asian American Doctors and Nurses are Fighting Racism and the Coronavirus, Wash. Post (May 19, 2020), https://www.washingtonpost.com/business/2020/05/19/asian-american-discrimination/ [https://perma.cc/4E2F-PM4M]; Coronavirus: Fake flyers in Los Angeles target Panda Express, BBC (Feb. 14, 2020), https://www.bbc.com/news/world-us-canada-51506732 [https://perma.cc/HR89-63WP].

   [307]. See Chia-Ming Liu, supra note 306; Matthew Lee, Coronavirus Fears Show How ‘Model Minority’ Asian Americans Become the ‘Yellow Peril,’ NBC News (Mar. 9, 2020), https://www.nbcnews.com/think/opinion/coronavirus-fears-show-how-model-minority-asian-americans-become-yellow-ncna1151671 [https://perma.cc/4RVW-27CC].

   [308]. See Bragdon v. Abbott, 524 U.S. 624, 628–29 (1998).

   [309]. See Linda Villarosa, America’s Hidden H.I.V. Epidemic, N.Y. Times (June 6, 2017), https://www.nytimes.com/2017/06/06/magazine/americas-hidden-hiv-epidemic.html [https://perma.cc/5MY9-JE47] (describing “the stubbornly held notion that gay and bisexual black men have more sex than other men, a false perception embedded in the American sexual imagination and fueled by stereotypes of black men as hypersexual Mandingos dating back to slavery”).

   [310]. See Abrokwa, “When They Enter, We All Enter,” supra note 28, at 18–19.

   [311]. In Stanley v. City of Sanford, the Supreme Court held that a plaintiff challenging an allegedly discriminatory retirement benefits policy was no longer a qualified individual within the meaning of the ADA once they retired, a holding the dissent critiqued as authorizing employers simply to wait long enough for the permissible window in which to discriminate based on disability. See 606 U.S. 46, 76–77 (Jackson, J., dissenting). Lower courts and employers may thus interpret Stanley as providing a shield for deliberately late discriminators. As this discussion explains, however, the text and purpose of federal disability civil rights laws are incompatible with an interpretation that allows covered entities to avoid all liability by timing their discrimination strategically.

   [312]. 29 C.F.R. § 1630 app. 1630.2(m) (2025).

   [313]. Id.

   [314]. See H.R. Rep. No. 101-485(III), at *34 (1990).

   [315]. See Bagenstos, supra note 154, at 448 (“When an impairment provokes such widespread myths and fears, people with that impairment are likely to experience systematic disadvantage as a result.”).

   [316]. Sch. Bd of Nassau County v. Arline, 480 U.S. 273, 285; see H.R. Rep. 101-485(III), at *30 (1990).

   [317]. See STME II, 938 F.3d 1305, 1311 (11th Cir. 2019).

   [318]. See Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

   [319]. See generally Porter, Explaining “Not Disabled,” supra note 21, at 394, 411–12 (finding courts often misapply or disregard the ADAAA’s clarifications); Nicole Buonocore Porter, The New ADA Backlash, 82 Tenn. L. Rev. 1 (2015) (examining the extent to which courts were correctly deciding whether people have disabilities following the ADAAA’s clarifications of the broad definition of “disability”); Stephen F. Befort, An Empirical Examination of Case Outcomes Under the ADA Amendments Act, 70 Wash. & Lee L. Rev. 2027, 2050–51 (2013) (examining the extent to which courts granted summary judgment to the employer on the ground that the plaintiff was not an individual with a disability both before and after Congress amended the ADA).

   [320]. Befort, supra note 319, at 2050–51.

   [321]. Id. at 2051.

   [322]. See Nicole Buonocore Porter, Troubling Trends: ADA Definition of Disability Cases 2019–2023, 52 Pepp. L. Rev. 455, 458 (2025).

   [323]. See id. at 469, 506.

   [324]. Wiley & Bagenstos, supra note 198, at 1246.

   [325]. See id. at 1288–89, 1298–99. See generally Porter, Entrenchment, supra note 26, at 73 (discussing disability accommodations during the COVID-19 pandemic); Lin, supra note 19 (same).

   [326]. See Wiley & Bagenstos, supra note 198, at 1299; Lorr, supra note 24, at 1317.

   [327]. Lin, supra note 19, at 321, 349; see also supra note 19 (discussing Universal Design, a structural framework for designing institutions to be universally accessible to a wide audience).

   [328]. See Lin, supra note 19, at 318.

   [329]. See Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint 8 (4th ed. 2025) (explaining that “rather than taking the individual as the primary unit of analysis,” public health law examines legal powers and duties with a focus on “the population perspective, prevention orientation, and emphasis on the social determinants of health”); Wendy E. Parmet, The Rise, Fall, and Resurrection of Public Health Law, 50 Am. J.L. & Med. 279, 280–81 (2024); Micah L. Berman, Defining the Field of Public Health Law, 15 DePaul J. Health Care L. 45, 81 (2013) (“Instead of examining the role of medical care, public health law is primarily concerned with identifying the sources of disease . . . and developing appropriate legal interventions at the population level.”).

   [330]. See Gostin & Wiley, supra note 329, at 6, 20–22.

   [331]. Importantly, any public health interventions must be informed by a health justice approach that actively confronts ableism and other forms of subordination given that “the ‘goal of public health has historically been to prevent [people with disabilities] from existing in the first place’” due to an unwarranted treatment of disability, rather than poor health outcomes, as the “undesirable outcome” that should be eliminated. Wilson, supra note 29, at 1748. For more on the health justice movement, see generally Harris & Pamukcu, supra note 18 (calling for use of the health justice framework to address civil rights issues within health law and policy); Emily A. Benfer, James Bhandary-Alexander, Yael Cannon, Medha D. Makhlouf & Tomar Pierson-Brown, Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic, 28 Clinical L. Rev. 45, 54–56 (2021) (describing foundational principles of the health justice framework); Lindsay F. Wiley, Ruqaiijah Yearby, Brietta R. Clark & Seema Mohapatra, What is Health Justice?, 50 J. L., Med. & Ethics 636 (2023) (providing an overview of health justice and its core ideas).

   [332]. See Wiley et al., supra note 135, at 684–90.

   [333]. See Stanley v. City of Sanford, 606 U.S. 46, 49–50 (2025).

   [334]. See Wiley et al., supra note 135, at 661, 663–64, 682.

   [335]. Ngozi Okidegbe, Of Afrofuturism, Of Algorithms, 9 Critical Analysis of L. 35, 47 (2022).

   [336]. Id.

   [337]. See T. Christian Miller, Patrick Rucker & David Armstrong, “Not Medically Necessary”: Inside the Company Helping America’s Biggest Health Insurers Deny Coverage for Care, ProPublica (Oct. 23, 2024), https://www.propublica.org/article/evicore-health-insurance-denials-cigna-unitedhealthcare-aetna-prior-authorizations [https://perma.cc/2WN6-4CLQ] (reporting results from an investigation finding that EviCore, owned by the insurance company Cigna, “uses an algorithm backed by artificial intelligence, which some insiders call ‘the dial,’ that it can adjust to lead to higher denials” of coverage for services requiring prior authorization).

   [338]. See generally Eric Potash, Rayied Ghani, Joe Walsh, Emile Jorgensen, Cortland Lohff, Nik Prachand & Raed Mansour, Validation of a Machine Learning Model to Predict Childhood Lead Poisoning, 3 Jama Network Open 1 (2020) (using a machine learning model to predict the risk of childhood lead exposure).

   [339]. See Matthew Hill, Sayed Mostafa & Emmanuel Obeng-Gyasi, Chronic Stress Indicator: A Novel Tool for Comprehensive Stress Analysis, 21 Int’l. J. Env’t. Rsch. Pub. Health 2, 15, 17 (2024) (proposing a “Chronic Stress Indicator” that accounts for socioeconomic determinants of health to better capture “race/ethnicity-related stress,” among other stressors, for use in “early identification of individuals at high risk of stress-related conditions, allowing for timely interventions”).

   [340]. The Section 504 statute is much sparser than the ADA, but it incorporates the ADA definition of “disability” and applies the same standard in employment discrimination cases as Title I. See 29 U.S.C. § 794(a), (d).

   [341]. In articulating the rationale for holding that such “regarded as” claims are viable, I suggest courts may draw from the analysis articulated in Part III.A of this Article explaining that the statutory phrase “regarded as having such an impairment” cannot be interpreted as including only defendants who regard the plaintiff as having an impairment in existence at the time of the adverse action given the use of the same “such an impairment” language with respect to past disabilities, the interpretative mandates of the Dictionary Act, the broad scope of liability under the statutory text, and the legislative history confirming that Congress did not enact a statute as constrained as the Eleventh Circuit believes. See supra Part III.A.

   [342]. As explained in Part III.B, courts may find that plaintiffs have stated an associational discrimination claim involving a future disability because the Dictionary Act requires such an interpretation and because the disability of the person associated with the plaintiff is not limited to actual disabilities but rather includes past and perceived disabilities as well. See supra III.B.

   [343]. While the rationale for rulemaking and the ultimate regulatory text should be largely the same across agencies’ Section 504 and ADA regulations, the U.S. Department of Justice’s Title II regulations may need additional clarification due to prior litigation challenging the notion that an associational discrimination theory applies outside the employment context. See supra note 282.

   [344]. See West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 732–35 (2022) (holding that the federal agency did not have the authority to regulate pursuant to the “major questions doctrine”); Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024) (overruling the Chevron doctrine).

   [345]. 42 U.S.C. § 12102(1)(B).

   [346]. The changes I propose would together address the inconsistency evident in the Eleventh Circuit’s analysis in how past and future disabilities are interpreted, but this particular amendment would not implicate future disabilities since an individual could not have a record of a future disability that has yet to occur. It thus clarifies only that past disabilities need not be recurring in order to be a basis of meeting the definition of disability under the statute.

   [347]. Another alternative would be to amend Section 12102(1)(C) to read “being regarded as having such an impairment (as described in paragraph (3)), whether or not the impairment is a present impairment,” to mirror the proposal for Section 12102(1)(B). However, using such phrasing in Section 12102(1)(C) would mean that the person is being regarded as having a present, past, or future impairment and thus would be duplicative of Section 12102(1)(B)’s application to past impairments. To add clarity without unnecessary duplication, I have instead proposed amending Section 12102(3), which gives more detailed explanation about the “regarded as” prong. Should statutory reforms be needed, policymakers might identify other alternatives to balance clarity with redundancy.

   [348]. Another possibility might be to amend the language in Section 12102(4)(D) explaining that impairments that are episodic or in remission can meet the definition of “disability” when active to explicitly account for future disabilities. However, amending this broadly applicable provision would likely endorse the pre-impairment anticipatory accommodations claims that I express reservations about in this Article. Instead, I recommend more focused revisions to correct courts’ interpretive errors that have wrongly limited preemptive disability stigma claims.

   [349]. Although this Article concludes that, unlike in the post-impairment context, claims falling within the pre-impairment anticipatory accommodations framework do not readily fit within the scope of disability civil rights law, I do not propose statutory or regulatory amendments to codify this interpretation. As noted supra in Part II.C, appellate courts are already validating the post-impairment anticipatory accommodations claims. Moreover, a pre-impairment anticipatory accommodations claim would not include the kind of “physical or mental limitations” or impairments required in failure-to-accommodate cases under Section 12112(b)(5) because no impairment yet exists. Accordingly, the current statute is sufficiently clear.

   [350]. See Samuel Bagenstos, Disability Rights and the Discourse of Justice, 73 SMU L. Rev. F. 26, 33 (2020) (explaining that a “discourse of pity and charity, paired with the discourse of costs and benefits, played an important role in securing passage of the ADA” and calling instead for “a discourse of justice” that recognizes “[p]eople with disabilities deserve to be treated as full and equal participants because it is the just thing to do”).

   [351]. See supra pp. 1221–23; Melissa Goldin, Ali Swenson & Alexandra Olson, Trump Targets FAA Diversity Efforts in Plane Crash Probe Despite No Evidence They Played Any Role, AP News (Jan. 31, 2025), https://apnews.com/article/plane-crash-faa-trump-dei-diversity-cc629bb66fb9afdad01c5ad735ca3cbb [https://perma.cc/8B4A-63P4] (describing a press conference in which Donald Trump suggested that a deadly plane crash was partly due to the Federal Aviation Agency hiring of workers with disabilities through diversity initiatives). See generally Michelle A. Travis, Disqualifying Universality under the Americans with Disabilities Act Amendments Act, 2015 Mich. St. L. Rev. 1689 (2015) (cautioning that courts’ interpretation of the Title I provision defining a “qualified individual” as one who can perform the essential functions of the job embeds a presumption that people with impairments are unqualified unless they prove themselves otherwise based on ableist norms about the nature of work).

   [352]. See Rebekah Taussig, A Lawsuit Threatens the Disability Protections I’ve Known My Whole Life, Time (Feb. 19, 2025), https://time.com/7258245/disability-protections-section-504-texas-v-becerra-essay/ [https://perma.cc/GC6B-ZTVH]; Complaint at 37–40, 42, State of Texas v. Becerra, No. 24-cv-00225-C (N.D. Tex. Sep. 26, 2024) (alleging that “Section 504 [of the Rehabilitation Act] is Unconstitutional” because it is a “coercive condition on federal spending” and seeking in the demand for relief that the court “[d]eclare Section 504, 29 U.S.C. § 794, unconstitutional”).

   [353]. A. J. T. ex rel. A. T. & G. T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279, 605 U.S. 335, 351–53 (2025) (Thomas, J., concurring) (inviting an opportunity to reconsider unintentional discrimination under the ADA).

   [354]. Miles Klee, The R-Word’s Comeback is a Grim Sign of our Political Moment, Rolling Stone (Jan. 7, 2025), https://www.rollingstone.com/culture/culture-news/r-word-elon-musk-maga-1235226732/ [https://perma.cc/8ZRH-VCVE] (discussing the resurgence of an ableist slur referring to people with intellectual disabilities among politically conservative discourse, including from Donald Trump and Elon Musk).

   [355]. See April Rubin & Maya Goldman, Americans with Disabilities Warn Protections Are Vanishing in Trump’s DEI Rollback, Axios (Feb. 23, 2025), https://www.axios.com/2025/02/23/trump-attacks-dei-diversity-disability [https://perma.cc/3SJZ-T4D6] (describing the Trump Administration’s rollback of accessibility initiatives as part of its “efforts targeting diversity, equity and inclusion efforts”).

   [356]. See Michael Ashley Stein & Penelope J.S. Stein, Beyond Disability Civil Rights, 58 Hastings L.J. 1203, 1212 (2007) (“[D]isabled persons are entitled to equality by virtue of their equal humanity.”).

   [357]. See Cal. Gov’t Code §§ 12940(a), 12955 (West 2026) (prohibiting employment and housing discrimination).

   [358]. Cal. Code Regs. tit. 2 § 11064(b) (2026).

   [359]. Cal. Code Regs. tit. 2 § 11065(d)(6) (2026) (emphasis added).

   [360]. See Sugimoto v. Inter-Con Sec. Sys., Inc., No. 19-cv-00025 DMS (BLM), 2020 WL 13656084, at *6 (S.D. Cal. Feb. 26, 2020).

   [361]. Disability Discrimination Act 1992 (Cth) s 4 (Austl.).