|Disability Studies Quarterly
Winter 2006, Volume 26, No. 1
Copyright 2006 by the Society
for Disability Studies
What's at Stake in Fatness as a Disability?
This essay takes up the suggestion that fatness might be (or become) a disability, and uses the observations it yields to propose a new account of a way American antidiscrimination law governs identity categories and manages individuals. It would seem to be an improvement from a fat-rights perspective to gain coverage under the Americans with Disabilities Act, and to be able to enjoy accommodations at work and in public places. This article offers an integrated alternative to the medical and social models of disability, using fat discrimination as a case study to illuminate its implications. Fat identity is likely to be absorbed into what I call managerial individualism, characterized by on-site regulation and negotiation of people's functional capacities in an indeterminate process. The study sets out a new concept of identity in the law–a managed process, not a status–and proposes to turn scholarly discussion about governance, resistance, and identity formation toward recognizing the full implications of such a concept. Identity as a managed process has very little leverage on politics, I conclude, and showcases a type of individualism that is very easily overwhelmed.
Keywords: Americans with Disabilities Act, fat, antidiscrimination law, identity, individualism, groups, civil rights, disability rights
What's at Stake in Fatness as a Disability?
Some advocate that we should take what we can get, and if what we can get is protection under disability rights laws, we should grab it.
Ack! No, no, no! Please don't make me disabled on top of everything else!
There are several prominent reasons in American law and culture about why it is wrong to discriminate against someone because of a trait that she bears. One might say that the trait is irrelevant to what really matters for judging people: merit, ability to do the job, moral character, and so on. Another reason is that the person cannot change the trait and did nothing to bring it on, and so it would be unjust for the trait to marginalize her or reduce her life chances. Or we might say that even if the trait were impossible to ignore–using a wheelchair, for example–then it still ought not to limit the person's opportunities because it does not really bear on her true merit, and thus we ought to require affirmative steps like building ramps and installing elevators. The most frequently counter-posed alternative model would focus on the group-creating, status-enforcing effects of some identity traits, like being a racial minority or having a disability, and describe the wrong of discrimination in terms of group subordination. Then discrimination would be wrong because it perpetuates trenchant inequalities, regardless of whether any discrete actor intended to deprive the person or held unflattering stereotypes about her.
The dominant conception of contemporary American antidiscrimination regime focuses on ignoring possibly stigmatizing traits that are understood to be irrelevant to the person's real abilities to perform (Post, 2001). (The alternative group-subordination focused approach has been a perpetual critique, not a fully realized jurisprudence (Colker, 1986).) The one major civil rights statute that does not aspire to simply ignoring identity-marked traits is the Americans with Disabilities Act (ADA) of 1990, which mandates affirmative workplace accommodations for otherwise qualified workers with disabilities. But accommodations only come for those who can characterize their difference as a legal disability. There are some people whose bodies function differently from the norm, but who cannot successfully describe their difference as the ADA requires when it comes time to demand rights through the formal legal process (Diller, 2003). In this study I use the positions of fat workers (and I will discuss employment rights here for the most part) as a point of entry for explaining some of the legally constructed processes of managing difference and disability that are already out there waiting for new claimants. Studying fatness (as I will call it, rather than the more stigmatized "obesity" or "overweight") situates this inquiry at the epicenter of a contemporary debate about the so-called epidemic of fatness. I begin from the idea that the furor over fat has deep cultural, political, and legal meanings that reach far into basic contests over the values of equality, access, health, and dignity in our society. There is certainly much to say about fatness in the law, and elsewhere I have tried to lay out the complexities across many areas of American law that both await and prefigure fat litigants (Kirkland, 2003). Those reflections called for greater attention to the issue of fatness as disabling, since as I will argue, a certain kind of disability right will probably be the dominant frame for fatness in the law outside of the few jurisdictions that have broader ordinances protecting fat rights to employment and public access without recourse to the language of disability.1
In this context we should start with the plain question, what shall we make of the debate over fatness as a legal disability? What kind of disability law will we get if we get fatness as a disability? The question of fatness as a disability calls for me to evaluate disability law more generally, since whether it is worth wanting and what good it might do are entirely contingent on what disability law offers. In this study, I first present the different ways of thinking about what disability rights are or should be. Then I consider how such rights would influence fat rights advocates' hopes for a route in the law to protect fat identity. In order to see what's at stake in the law, I analyze two cases in which fat plaintiffs litigated without succeeding in being labeled as disabled (but one woman wins, the other loses). Then I present my own view of how fat people will be managed in disability law when and if they are fully recognized as fitting the category of "qualified person with a disability," focusing on exactly what the process of accommodating workers is supposed to be as exemplified in an example case about a baggage handler with a crushed foot (since that process defines and produces a qualified employee with a disability). I conclude by evaluating what such a shift might look like and what it would mean for fat identity to be brought into what I will call "managerial individualism."
It might seem that anyone would qualify as disabled if she could not access public accommodations or perform work without assistance (that she was otherwise qualified to do), but in fact it is very difficult to pin down who is legally disabled and who is not. The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires" (Americans with Disabilities Act, 1990). A disability is "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." If someone is a relatively healthy fat person, for instance, without identifiable cause for her fatness, then she may find herself needing accommodations to be comfortable in the built environment but also unable to identify the qualifying "impairment." One can also use what is known as the "regarded as" disabled prong, which would permit someone to sue an employer who considered her disabled when she was in fact not disabled at all. Legal scholars have celebrated this part of the ADA as especially enlightened since it, in the words of Martha Minow, "turns the inquiry directly to the social origins of the category and its use by some to harm others" (1997, p. 80). Minow goes on to argue that other areas of law should replicate the "regarded as" prong of the ADA in its turn to social power (p. 80). In my discussions below, however, I argue that even the "regarded as" cases turn out to efface disability's difference in regrettable ways, even on top of all the difficulties with the legal definition of disability.
Such a person would slip though the cracks of federal antidiscrimination law, gaining neither protection from anyone taking her fatness into account at work (since weight is not a protected category under Title VII of the Civil Rights Act of 1964) nor accommodations on the job such as comfortable seating. Adding weight to Title VII seems politically improbable, since the covered categories have been fixed since its inception (sex, race, color, religion, and national origin) (Skrentny, 2002), with the exception of the Pregnancy Discrimination Act of 1978, clarifying that women could not be fired for being pregnant. Bills to add sexual orientation to Title VII have been introduced numerous times over the last few decades only to fail every time, once by only one vote in the Senate (Campbell & Davidson, 2000). Gays and lesbians are much more accepted in American society than they were in the recent past, but it is still perfectly legal to fire them because of their sexual orientation. Given that many people regard fatness as unhealthy and the result of poor eating habits and personal laziness, national acceptance of fat people's rights seems even more distant. It seems that the clearest and most useable form of rights expansion for fat people would have to come through a gradual expansion of already-existing legal terms like "disability," as I argue elsewhere has happened with transgender rights and discrimination on the basis of "sex" (Kirkland, 2006, forthcoming). In one telling development, Medicare policy recently changed to characterize obesity as a disease, making it possible for beneficiaries to apply for coverage for weight loss treatments (Connolly & Stein, 2004).
Models for Fatness as a Disability
Thinking of fatness as a medically fixable, otherwise disabling condition obviously raises many more questions than it answers. What about the fact that weight loss treatments very rarely result in sustained weight loss (with the possible exception of bariatric surgery, with its high mortality rate and restricted availability) (Saguy & Riley, 2005, pp. 884-885)? Isn't this frame the very same medical model of disability that Disability Studies scholars have been criticizing for many years (Linton, 1998; Longmore, 2003), and couldn't that critical stance explain why some fat activists reject describing themselves as biologically flawed in their genes or metabolisms (Saguy & Riley, 2005, p. 891)? What if scholars and activists want to resist simultaneously the push into a concrete and overbearing identity and the push to medicalization, but they nonetheless want fat people to be able to use law to ease realities of exclusion and oppression that are now otherwise unremedied?
The study is a reflection on what it means to gain new rights protections before one's group has been recognized politically and cohered in the traditional ways that has prefigured legal recognition in the past for other identities ("women," African Americans, "the disabled," and so on) (Skrentny, 2002). I hope to shed light on the classic tension between individualism and group rights by recasting the benefits and limits of both. Moreover, my views have implications for skeptics of identity-claiming in the law who suspect that rights rely on injured identities and therefore re-subjugate those who want protection in the very terms under which they must ask for it from the liberal state (Brown, 1995). The instance of fat rights as disability rights show that proceeding with an account of identity as individually variable, grounded in processes rather than fixed, and turned towards social power rather than historical injury has its own set of challenges. This kind of identity in the law is much more like critics of identity politics would like to see, but my argument here is that we cannot simply affirm it.
Much scholarly criticism of the ADA has focused upon its excessive attention to medicalized impairment and its crabbed treatment in the courts (Krieger, 2003). If fat people were to gain ADA protections, then, this critical perspective would predict that they would exchange moral condemnation for the typical "personal tragedy" story of people with disabilities, understood as unfortunate souls afflicted with a lamentable condition beyond their control. The focus would remain on their bodily or genetic impairments, because the danger is that most people still think of disabilities in that way. As Abigail Saguy and Kevin Riley document, many fat activists would very much like to contest the language of "epidemic," "morbidity," and "disease" currently driving the American panic over fat, and see the move towards medicalization as a direct threat to a more affirmative identity-based politics (Saguy & Riley, 2005). Fat activists would want fatness to be named a disability, but only if another model of disability were to eclipse the medicalized one that they understand ADA to offer them.
Disability rights advocates and scholars do in fact promote a more transformative and celebratory story of overcoming disabling environments. In what is known as the social model of disability, the built environment and social norms are the focus of change, not the supposedly diseased or dysfunctional body (Cooper, 1997; Herndon, 2002). Rosemarie Garland-Thomson describes this view of socially disabled fat people quite succinctly: "The fat body is disabled because it is discriminated against in two ways: first, fat bodies are subordinated by a built environment that excludes them; second, fat bodies are seen as unfortunate and contemptible" (2005, p. 1582). Rather than asking what's wrong with fat people, a legal regime built on the social model of disability would simply require that their bodily difference not stand in the way of work opportunities, travel, and enjoyment of public places. Fat people, in what Kathleen LeBesco calls the "will to innocence," would not have to assure everyone that they are in fact dedicatedly healthy and cannot in any way change their bodies, but perhaps could move away from those pitfalls towards figuring out what "an inhabitable subject position for fat people" might be in all its complexity (2004, p. 124). The medical model of disability, focused on the disorder of the individual body as the site of transformation, would continue to aid those searching for the "fat gene," the thyroid problem, the diet that actually works, the safer stomach-stapling technique, and so on.
As I've hinted above, on its face the ADA currently offers strands of both a medical and a social model to describe why fatness might be disabling. Qualified individuals with disabilities must receive reasonable accommodations from their employers. The concept of impairment is often highly medicalized, but offering accommodations is clearly a social and political intervention. The "regarded as" disabled prong targets employers' attitudes directly and presumes no dysfunction in the employee at all, and could potentially cover anyone including fat people. So there is some confusion in the law about whether being fat can be a disability. "Except in rare circumstances," federal regulations currently state, "obesity is not considered a disabling impairment" (Interpretive Guidance on Title I of the Americans with Disabilities Act, p. 352). In other words, if someone is fat and disabled, there must be some underlying cause of the fatness, like a thyroid condition or a thrifty gene. But there is legal precedent and wording in federal regulations to suggest that so-called "morbid obesity," defined as body weight 100% above the norm, is per se disabling regardless of underlying conditions (Cook, 1993). Currently many fat plaintiffs lose their cases because they are not able to point to an underlying impairment as a cause of their obesity, though some healthy fat people have prevailed using the "regarded as" disabled prong of the ADA.
Modeling the alternatives of disability rights law along the social model/medical model continuum mischaracterizes the actual operations of our legal regime. It is not simply the case that we are stuck in a medical model and that transition to a more social conception of disability would ease the problems advocates identify and liberate fat people as well. The situation is a bit more complex. American disability law actually governs disabled identities in an individualized, accommodationist, and managed way, or through a concept I've termed "managerial individualism." It is both medical and social, but its other features are actually more important, particularly its techniques of identity production. Many fat advocates who argue for fatness as a disability base their optimism upon the social model of disability, which imagines a civil rights-type group identity for fat people (Solovay, 2000, pp. 145-149). I argue here, however, that fatness as a disability would actually be governed under this managerial view of disability, and that fatness would not be able to acquire the sort of politicized identity that may be necessary to compel other expansions of legal rights. What fat activists want is a question for another time, but for now I endeavor to show what they may get as a legal identity.
Enabling Politicized Identity in Disability Law?
Politicized identities are those that are widely understood to demarcate a social group, and to prompt certain justice considerations in regard to its members. Usually we think that getting legal protections for an identity is preceded by a political consensus that the group deserves it. Disability rights would seem to be an ideal route for fat people to gain recognition as a social group, and for their body size to be transformed from evidence of a character flaw into something they cannot help. (Think of the shift in understandings of alcoholism, for instance. And it has never been common to ask whether a wheelchair user might have been a drunk driver. People who use wheelchairs have always occupied a sure and pre-given status as clearly people with disabilities, while other groups come to be seen that way through shifts in norms about the source of their difference.) Gaining a politicized identity has often required being understood as a group or at least analogizable to other groups that have previously gained protections, as fraught as this process may be (Halley, 2000). As disability rights lawyers have discovered, it is much harder to work with a law that presumes that the covered people are discrete individuals with highly variable conditions. I am not normatively endorsing this route to legal protection but merely noting that it is well trod. So if fat activists want political recognition of fat oppression, accommodations in the public sphere, and recognition in the law, they are faced with a dilemma. Identification as disabled is the current route to accommodations, but such recognition simultaneously undercuts political solidarity and group identity.
To illustrate this dilemma, I examine the process of getting an accommodation under the ADA. Fat people require different spatial arrangements, different seating, and perhaps other changes to scheduling and movement within the work space. So how does this accommodations process work, and how does it construct the disabled identity they may receive? What does it show us about the interaction between law and identity that is under appreciated? A disabled worker and her employer must engage in what is called the "interactive process" to find an accommodation that will make the worker fully functional in the job. Arguably, this moment of interaction proves the point that disability rights scholars maintain: that disabilities are socially created and can thus be socially dispelled. Ruth O'Brien argues that the interactive process has great potential to "undermine managerial prerogative power" and "undercut the standardization of the workplace" (O'Brien, 2005, p. 1530). In her view, this power of this moment can be expanded beyond those classically understood as disabled and used to feminize the workplace and to re-arrange its power relations entirely.
I show, however, how the intervention of the particular account of the disabled person makes this straightforward re-arrangement of power relations unlikely, and at best indeterminate. Socio-legal scholars already know, after all, that businesses and organizations mediate and re-interpret what antidiscrimination laws mean within their own organizational cultures (Edelman, 1992). What is waiting for fat plaintiffs is an individualized management of their functional capacities that must be discretely negotiated without the assistance of an overarching identity narrative. The creation of fat plaintiffs as recognizable legal subjects shows us a new path of legal recognition, in which medical individualization combines with managerial imperatives. The individualism of liberal legalism has a supple new form, made all the more powerful through consolidation with medical and managerial discourses of the person.
Before we take stock of what fat identity will gain with disability rights, let's take a look at two illustrative stories. Both are reported cases of fat discrimination, and neither plaintiff gets an accommodation. They show what it would be like for fatness to be stripped of its negative connotations and stigma, that is, transcended. In both cases, the courts required that the employer simply measure whether or not the person could perform her job without taking her fatness into account. Often in mainstream legal studies this technique is called "blindness," as in "color-blindness" or "fat-blindness." Obviously in Disability Studies the trope of blindness as a route to superior moral reasoning is not so simple, particularly when one notes the stark contrast between how legal scholars use the word to describe the obviously just way to reason about people's identity traits and how sighted people treat the actual blind people they encounter (Kudlick, 2005). I prefer to call this moment in legal reasoning "transcendence-to-ability," because it transcends the negative trait and seeks only the inner kernel of functional ability. Bonnie Cook, a winning plaintiff in a fat discrimination lawsuit, illustrates this common notion: "I guess all I can say is that people shouldn't judge others because of how they look. What's important is whether or not they can do the job" (Abbott, 1992, p. F2). But as we see, transcendence-to-ability requires ignoring fat people's difference, and it does not provide any reason to accommodate them. So while fat-blindness (and its de-stigmatizing properties) seems to grant fat advocates much of what they want, the shortcomings of the following two cases suggest that disability coverage is still necessary. In my concluding thoughts below, I consider an alternative antidiscrimination regime developed in San Francisco, which does not depend on the blindness versus accommodations trade-off that the federal laws set up.
Discrimination against Fat Women Not Understood as Disabled
Mary Nedder, College Teacher
Mary Nedder taught in the Religious Studies Department at Rivier College, a small Catholic religious institution in Nashua, New Hampshire, for about 6 years, during which time she weighed about 375 pounds and stood 5 feet 6 inches tall. In 1994, the school did not renew her contract. She sued under the Americans with Disabilities Act. Ms. Nedder assembled evidence in her lawsuit that Sister Jeanne Perreault, the college President, had previously stated that losing weight is part of promoting the health of the whole person (an explicit part of the school's mission) (Nedder, 1996). The college's mission statement also includes a commitment to "an environment in which integrated learning is the shared responsibility of students, faculty, staff, and administrators, and is pursued in all the curricular and co-curricular programs of the College" and urges those who participate in the life of the college to "take responsibility for ourselves and for others, and to engage in dialogue about basic human issues facing society, especially the plight of the poor and powerless" (Rivier College Mission Statement). Sister Perreault also said that faculty members should serve as good examples of the college's mission, and that she believed that fat teachers did not get much respect from students (Nedder, 1996, pp. 119-120). Sister Perreault's opinion that students would react negatively to overweight faculty members (finding them "less disciplined and less intelligent") came from a report on the subject that she had circulated among some other faculty members (p. 119). Ms. Nedder, however, prevailed under the "regarded as disabled" prong of the ADA and received back pay and reinstatement at Rivier. The court found that the college's belief that her weight kept her from being a good role model and a respected teacher amounted to an erroneous conclusion that Ms. Nedder was substantially limited in her ability to teach (even though she was not so limited).
The Nedder case is a fascinating example of a court enforcing transcendence-to-ability in the face of evidence that the trait may indeed have some bearing on job performance. So while she wins her case and is not held to be disabled (only perceived that way), the case sidesteps the whole question of her difference within the community. In the legal analysis, Mary Nedder's weight was an externally appearing trait that signaled a character defect to her employer. Since possessing and displaying a certain character within the college community (and defined by that community) was a requirement of the job, her weight made her seem dysfunctional to Sister Perrault. Interestingly, Sister Perrault does not seem to think that Ms. Nedder suffered from an impairment in the sense of a disorder in a body system (as the ADA requires); rather, she thought Ms. Nedder lacked self-control–a character defect, essentially. Her case required this misinterpretation of the law to be successful. The perceived disability prong of the ADA (also what I have been calling the "regarded as disabled" prong) would seem to be the most obvious route in contemporary U.S. law for fat people to achieve legal victory based on transcendence-to-ability. It represents the social problem of fatness as rooted in others' disgust, as well as stereotypes about fat people as lazy and unable to exert self-control. The perceived disability jurisprudence is quite distinct from the main thrust of the ADA, which is focused on accommodation though individual management.
Even Sister Perrault's supposed empirical evidence that fat teachers did not get as much respect as role models was not enough to override the college's obligation to ignore Mary Nedder's weight when it judged her fitness as a teacher. The court insists that even though her job is to "represent" the college's close communal values when she stands up in front of students to teach, it does not permit the social meaning of fatness to count in her job performance. Teaching then becomes the kind of job that is measurable in terms that are separable from the appearance of the self. But in the close-knit, values-laden community of Rivier College, can lecturing, evaluating students, and mentoring students be separated from the appearance of the self? What if it were the case that the students did not respect Ms. Nedder as much because of her weight? (What if data were available to prove conclusively that women are not as respected in the classroom as men, or minorities as much as whites?) The court's decision in Nedder is an effort to transform the social meaning of fatness by rendering it illegitimate as a part of Ms. Nedder's teaching and role modeling.
Transcendence-to-ability, as we see in the Nedder case, affirms that nondiscrimination means being legally required to repress one's doubts about a fat employee or applicant's functional abilities. It does not deal with any actual difference in standard functional capacities. True merit in employment law is the ability to do the job, and that ability must be determined without attention to the person's fatness. On this understanding of antidiscrimination law, the wrongness of the employer's act stems from the use of a certain kind of knowledge: an irrational misjudgment of an individual based upon stereotypes. For Mary Nedder, these stereotypes were about both gender and fatness together. The view was that fat women make bad role models because they do not take care of themselves. Perhaps if women are supposed to make especially nurturing role models in college environments like this one, modeling a certain care of the self is an especially feminized requirement as well. If a woman cannot care for herself, how can she care for others? The understanding of functioning implicit in transcendence-to-ability must draw upon another type of knowledge to refute these assumptions, one tethered to empirically quantifiable results of measurements conducted across different populations of people. Can she teach the class? Can she drive the bus?
The problem is that transcending fat to bare functional abilities like these does not on its own give any substantive account of fatness that establishes it as an identity or tells any kind of story about what it is like to be fat (or what it could be like, under more positive social conditions). Why is it important that fatness not keep people from being role models, for example, if we concede that being one is part of teaching at Rivier? The equalizing impulse of transcendence-to-ability precludes any kind of affirmative action or accommodations. There is no reason to change the standard of measurement because the argument is based on the fundamental equality and sameness of the fat women to their thinner counterparts. This justification is fundamentally incompatible with any kind of robust disability rights analysis, which problematizes the stigmatizing effects of a "normal" standard of measurement. The case of Ms. Webb, the would-be bus driver from Michigan, illustrates this aspect of transcendence-to-ability.
Stacey Webb, School Bus Driver
Stacey Webb applied to the Swartz Creek Community School District in Swartz Creek, Michigan for a job as a substitute school bus driver in August 1996. On the first day of training, Ms. Webb found that the steering wheel pressed into her abdomen. At the time she was about five feet eight inches tall and weighed between 320 and 330 pounds. The next day, the test drive supervisor dismissed her from the training program because she could not fit behind the wheel. Even though this case arose in Michigan, the only state in which employment discrimination based on weight is expressly prohibited, the court found that the supervisor lacked "discriminatory animus" because "[she] only found Webb's weight to be a problem because it prevented Webb from driving the bus safely" (Webb, 2001, p. 14;(also discussed in Kirkland, 2003). Ms. Webb was not disabled, either, according to the court. The supervisor never made derogatory remarks about Ms. Webb, and even suggested applying for other jobs in the school district. The district had decided not to adjust the seat on the bus any further because it would require structural modification, possibly in violation of other safety standards (something the district had been unwilling to do for other applicants as well).
Ms. Webb was covered by Michigan's state law extending protection in hiring based on weight. The Michigan law came about, writes one state judge, because "the Legislature was concerned that overweight people would be cast aside on the basis of inaccurate stereotypes about their abilities" (Penzato, 1996, p. 6). The law is rarely used, however. When it went into effect in 1975, according to Art Stine of the Michigan Department of Civil Rights, it was used by women who would have been kept out of traditionally male jobs by minimum weight requirements, such as the 120 pound minimum for being a police officer (Cawley, 1993). There have been very few litigated cases over the years (13 reported in legal databases as of January 2005). The school district did not base its refusal to hire Ms. Webb on stereotypes or animus against her, however. Rather, the decision was based on the fact that she could not physically fit behind the wheel. The judge in her case pointed out that everyone seems to have been quite nice to her. Ms. Nedder could perform the jobs for which she had been hired according to the same specifications that applied to everyone else, and her employers' negative views were based upon deference to others' social norms and conjectures about future hypothetical situations. Ms. Webb (or anyone else her size), on the other hand, would have needed some kind of accommodation in order to take the job, presumably moving the seat back and readjusting the controls.
When justice means protecting the capabilities of the self, abstracted from its appearance or politicized identity traits, then there can be no reason to modify the bus to allow Ms. Webb to take the job. There is nothing unjust about the fact that the norms of school bus construction probably always assumed that drivers would have a certain body size; the conditions of the work site are simply given, and legally understood as the neutral terrain upon which discrimination may or may not occur. The idea that justice requires modifying the bus would stand upon a different justification altogether. Modifying the bus would mean that something more than Ms. Webb's individual dignity or functional capacity is being protected or remedied. Rather, accommodations hone in on past injustice done to the group through the operation of hegemonic norms that displaced or marginalized bearers of that identity trait. They acknowledge that the physical world has been assembled in the interests of some people's functional capacities and against others' interests. The way buses are built is not simply neutral terrain upon which proper or improper functioning happens, but rather it helps to create and maintain the dysfunction of some people and promote the abilities of others. There is no account of fat women's personhood that could convey these justifications into the Michigan law (and they were not the original justifications for the law); therefore, there is no reason to modify the bus to accommodate Ms. Webb.
Remember one obvious problem that very large people often have: they do not fit, or fit comfortably, into physical spaces designed for smaller people. "As an impaired group," Sondra Solovay argues, deliberately using the language of the ADA, "[severely obese people] are substantially limited in a major life activity that the average person has no difficulty with–navigating all places of public accommodation during the course of an ordinary day" (2000, p. 149). Simply banning animus toward them, as the Michigan law does, would have no implications whatsoever for employer-subsidized changes to the built environment. The Webb case shows that there would be no room in such a law for re-interpreting a basic feature of fat identity: big bodies. Another frame for a deserving plaintiff (besides the historically burdened identity frame, justifying affirmative action-type interventions) is, of course, one that would have forced the school district to re-make the bus for Ms. Webb: an accommodation-focused disability rights frame. Solovay argues that although not all moderately fat people need disability rights, the relatively small number of very fat people "should automatically qualify for the protections and accommodations afforded by the ADA, including building specifications and codes designed to meet the needs of this class of disabled people just as they are designed to meet the general needs of wheelchair users and blind people" (p. 149).
Managed Functioning in Disability Law
What kind of social practices and stories of personhood await fat plaintiffs within our disability rights regime? The ADA recognized people with disabilities as a legally protected group, even, as Congress put it in the preamble to the law, "a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society" (Americans with Disabilities Act Preamble, emphasis mine). Here we see the initial impulse: to retain the framework of functional capacities as the proper grounds for judgment and to vanquish stereotypes about ability. If the ADA did not also mandate workplace accommodations, it would simply embody transcendence-to-ability. But businesses must go through a process of accommodating otherwise qualified disabled workers, and so the ADA seems to be special among antidiscrimination laws (although there is a strong case to be made, not discussed here, that other requirements in Title VII law can function as accommodation requirements on behalf of racial, gender, religious, or ethnic differences, too) (Jolls, 2001).
For Ruth Colker, interpreting the ADA is a form of judicial contestation over "the politics of economics," because its accommodationist provisions require employers to expend resources to help a certain disadvantaged class of workers (1998, p. 65). That obligation is of course what conservative legal theorists dislike about it (Epstein, 1992). Linda Krieger calls it a "transformative statute . . . requiring structural equality" (Krieger, 2000, p. 2) and Pam Karlan and George Rutherglen applaud its "fundamentally different approach to . . . and remedy for invidious discrimination" (Karlan & Rutherglen, 1996, p. 2). My view is that the ADA would never have been able to sustain a full-blown group-based rethinking of the subordination of people with disabilities, as other progressive scholars seem to have assumed. Law's understanding of justice, proper functioning, and disabled identity is not most accurately characterized by an identity script derived from moments of political consensus (real or posited) and a set of analogies passed in the usual "like race" fashion; rather, it is defined by the discord over who belongs within the category and the case-by-case negotiation of what to do with those who are (provisionally) understood to fit into it.
Much of the political-legal-scholarly consensus about disabilities has emphasized the wide range of forms that disablement takes. This focus on individualism and variation dominates the contemporary judicial reception of disability cases, and, as Ruth O'Brien explains in her study of the evolution of disability policy since World War II, also helps explain why the ADA has been remarkably ineffective and even punitive towards many of the people its preamble claims to protect (Diller, 2003; O'Brien, 2001). The notion of a legal remedy for discrimination that is person-specific and contextually crafted provides the chance to produce and to manage functional personhood–that is, personhood imagined as primarily about how one moves about and accomplishes things in the world–on a minute level. This interaction of law with identity is regulatory. As Alan Hunt defines it, "'[r]egulation' refers to a specific style of purposive, instrumental, and policy-oriented mechanisms of control that avoid negative or prescriptive imposition of rules in favor of regulatory negotiation that makes the regulated agent play some part in the process of both the development and implementation of those processes of control" (1993, p. 315). That is, rather than looking for a certain suspect ratio that may trigger suspicion of disparate impact against disabled people (as Equal Employment Opportunity Commission [EEOC] regulations set out for marking suspicious ratios of minorities to whites or women to men, for instance) (Uniform Guidelines on Employee Selection Procedures, 1988), the ADA makes use of a process of negotiated accommodations for disabled people that the employee herself helps to develop and implement. In this section, I examine this "interactive process" for accommodating disabled workers, reading cases about it as the law's newest account of how to bring about just outcomes for differently functioning individuals.
Who Is a Person with a Disability, Anyway?
"Unlike other civil rights categories, like race," O'Brien notes, "people with disabilities must prove they have one" (O'Brien, 2001, p. 14). We have never before had an antidiscrimination law that insists on the complete indeterminacy of the line between who is covered under it and who is not. For better or worse, most antidiscrimination laws help describe and solidify certain stories of what it means to bear an identity marker such as race, and the first step in doing that is always to explicitly or implicitly define the boundaries of the group to whom the law is directed. Title I of the ADA, of course, protects qualified workers with disabilities, but nearly all the jurisprudential scuffling has been over whom that label actually covers. According to the Supreme Court, determining membership in the group is "an individualized inquiry (Sutton, 1999, p. 483)," and regulations insist that it disability is "not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual" (Interpretive Guidance on Title I of the Americans with Disabilities Act, p. 351-352). When Congress deliberated on the ADA, members referred to the 43 million Americans with disabilities that the bill would help. The Supreme Court has seized upon the number as an upper bound, using it to reason that inclusion of people with extremely common conditions in the ADA would expand the population covered beyond 43 million and thus could not be what Congress intended. Justice O'Connor seemed to be holding back the floodgates, saying she wanted to create a "demanding standard for qualifying as disabled" (Sutton, 1999, p. 483). Those who want a broader interpretation of the statute point out that 43 million surely captures more than just severely disabled people and that the "regarded as" prong captures potentially anyone, and so Congress could not have intended such a pinched view of the population meant for protection. It is telling that a simple number has taken on such significance in ADA jurisprudence. Disabled identity as a legal idea does not on its own tell us anything about who is included, so arbitrary markers become significant. The judges worry that the identity group must be restrained by judicial definition or it will burst right open, and so many people will be included within it that businesses could be overwhelmed by their obligations. Given the reluctance with which many people, including some people with disabilities, claim formal legal rights to non-discrimination, these worries seem unfounded (Bumiller, 1988; Engel & Munger, 2003). Nonetheless, this judicial anxiety and gate-keeping has certainly kept the idea of who is disabled very unstable.
Many Disability Studies scholars have set out to highlight the person-to-person variations in functioning among disabled people rather than to emphasize them as a "like-race" subgroup. Anita Silvers argues against collectivizing disability perspectives into one political identity, because to do so would impose fealty to a certain banner-carrying way of being disabled, undermining the individualized inventions that disabled people develop in order to function in new ways (Silvers, 1999). But Rosemarie Garland-Thomson emphasizes the "complex ways that the particularities of human variation are imbued with social meanings [that] justify discriminatory practices," in a mode of analysis that highlights how group-based oppression can create an identity even in the presence of variation among the group members (2005, p. 1582). As it turns out, the focus on individual variation among disabled people and socially situated accommodation constitutes the overlapping vocabulary between Congressional representatives, judges, a subset of disability scholars, and activists. The Supreme Court and those disability rights scholars who are not invested in group identity agree on at least two important things: that "the disabled" are in fact a heterogeneous group without any sustained connections or shared experiences, and that accommodations, when they are required, must be adapted to the individual and her working conditions. It is these two factors that I argue comprise the unique substantive account of disabled people's functional personhood, and it is no coincidence that they have been elaborated upon in multiple sites of knowledge.
Processing People, Producing Identity
Management of the individual seems to be inherent in an accommodationist approach. Each disabled person enters into a collaboration with her employer in a discrete location–her building, her work station, the assembly line, the bathrooms, the stairs–to produce and to manage an account of what changes to the environment her disability requires and what she should do in return to continue to perform her job. This legal person with a disability who can still work cannot be said to exist before the worked-out job accommodations are put in place. That is, both the worker and the employer must move through a legally mandated process and only then do the employer's obligations become clear: to accommodate disabled workers who can be reasonably accommodated and still do the job, but not to keep on those whose accommodations are either too expensive or who fail to participate properly in their own re-fashioning. This approach to managing functionality of persons in the law also links up to (and often seems directly derivative of) other important practices of governing the person, such as medical evaluations and bureaucratic determinations of eligibility for government benefits based on disability, for example.
The employer and the employee must undertake an "interactive process" in order to determine what precise accommodation will be made. The requirement for an interactive process does not occur within the language of the ADA itself. Interpretive regulations promulgated by the EEOC at the behest of Congress provide that in order "to determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations" (Interpretive Guidance on Title I of the Americans with Disabilities Act, p. 343).
Not all federal courts have accepted that an interactive process is necessary, but in some jurisdictions it has been read into the jurisprudence of the ADA. The lead case from 1996, Beck v. University of Wisconsin Board of Regents, stipulates that "once an employer knows of an employee's disability and the employee has requested reasonable accommodations, the ADA and its implementing regulations require that the parties engage in an interactive process to determine what precise accommodations are necessary" (p. 1137). Indeed, some judges have been quite enthusiastic about the interactive process requirement as a tool of social justice. One judge has particularly high hopes: "[The process] may . . . not only lead to identifying a specific accommodation that will allow a disabled employee to continue to function as a dignified and valued employee, it may also help sensitize the employer to the needs and worth of the disabled person. It therefore furthers the interest of the employer, and the dignity and humanity of the disabled employee" (Conneen, 2003, p. 30). Thinking more broadly about the liberating potential of processes for identities, Martha Minow has specifically proposed that we think of identity in the law not as a thing, but as a process of negotiation (Minow, 1997, p. 50). She means to highlight the specific historical settings and interactions through which people live their identities, such that even subordinated people can "take advantage of the space between their assigned identities and their own aspirations and alternate conceptions for themselves" (p. 51). This praise for process as dignifying, sensitizing and liberating is quite strong from several directions, then.
So the implementation of the ADA turns on a conversation or series of interactions between workers and employers meant to bring to light the employee's different or lost functioning and to accommodate it. From published cases in which the interactive process was a primary feature of the dispute, we can glean some important details about how these interactions play out, and begin to form conclusions about the structural and personal power relations that produce judgments of managed functional personhood. Many cases address the duties of both parties to enter the interactive process in good faith, and turn on the question of who is responsible for a breakdown in the process. If the employee is responsible, he does not qualify for accommodation and job protection. He is then not covered under the ADA, not a legally disabled person. Watching how the process breaks down shows how it is supposed to build up the properly functioning worker. When courts assign blame for malfunctions in the interactive process, they are delineating what kind of persons deserved to be functionally re-formed, and how that reformation should have proceeded. One case example shows this process in action, as well as hints at what kinds of organizational cultures may be springing up to manage disabled identity.
Romell Carter, Baggage Handler
Romell Carter worked for Northwest Airlines at O'Hare airport for several years, loading and unloading baggage until he crushed his foot between two forklifts in 1999. Soon after his return in 2000, Northwest sent Margaret Sommers, a professional "accommodations assessment advisor," to assess what kind of work Carter could still do (Carter, 2003, p. 945). Ms. Sommers first tried to set up an evaluation at the job site with Mr. Carter, but he could not attend on the date she had set and could not notify her because he did not have a phone. She conducted the evaluation with his supervisor present instead, and found that he was not able to do his old job anymore. She began Northwest's "Alternative Duty Exploration" process with him to look for a position that would not require standing on his foot, which put him in severe pain after even a few minutes. This process went on for three months, during which time she would send him abbreviated descriptions of open jobs and then answer his questions about what each job involved. More senior employees already filled the sedentary jobs, and one job in Florida that was open to him required passing a typing test. Mr. Carter did not know how to type (and failed the test). The ADA does not require bumping more senior employees to find an accommodation for a disabled employee, and so Northwest's insurance paid for Mr. Carter to take a keyboarding class at a local community college. He took the class, but never re-took the test despite being invited to do so by Northwest on two occasions.
Because he was still not able to work, Carter sued under the ADA, claiming that Northwest had failed in their duty to accommodate him. In the Beck case, the court gave examples of what to look for in assigning blame: "A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility" (p. 1135). Mr. Carter was responsible for the breakdown, in the view of both the trial court and the court of appeals. Northwest succeeded in showing that their evaluation and attempts at job shifting were reasonable (and, under Beck, a "reasonable effort" is all that is required of employers).
Determining a person's functioning is a social and a legal process, and the varying resources the opposing parties bring to bear on that determination help produce the employee as one who functions suitably or as one who does not. One understanding of Ms. Sommers' job is that she was hired to monitor Mr. Carter and to make sure Northwest could prove that it tried to accommodate him. By hiring her, Northwest secured immunity from judgment under the ADA well before any lawsuit was even filed; indeed, it is difficult to imagine that Northwest would not be found "reasonable" if it devoted an entire position towards accommodating employees. Mr. Carter, on the other hand, had no context for realizing the full ramifications of the interactive process. He alleged that it was not fair that Ms. Sommers and his supervisor assessed his job without his presence, and that the job listings Ms. Sommers sent him were so abbreviated that he could not tell what the jobs required. There was no explanation for his failure to re-take the typing class, however, and so it seems like he did not do everything he could have done to get another position. We cannot tell from the record what he thought was happening in the interactive process–did he realize he was ceding away his rights under the ADA by not responding in the proper way? Perhaps his skill level was not sufficient to transfer from a job based on physical labor to one based on technological skills and customer service. Perhaps he changed his mind about moving from Chicago to Florida.
The important thing to notice about the Carter case, then, is the institutional context of the interactive process as well as the legal background, and the way they work together to determine the functioning of persons. Even with a smashed foot that left him unable to stand without pain for more than 10 minutes, we simply cannot know in advance of the process whether Mr. Carter belongs in the class of 43 million disabled Americans. If Mr. Carter had mastered typing and had been willing to move from Chicago to Florida, then the legal obligations of Northwest Airlines would have redefined and reproduced him as a functioning worker. Then he would have been a qualified individual with a disability. This outcome depended upon the interactive process happening in a certain smooth way (to avoid "break down"). The meetings, phone calls, applications, evaluations, transfers, and so on should ideally fit together with the disabled worker's proper attitude and efforts. Once Northwest expended a reasonable effort and negotiated in good faith, however, its duties to Mr. Carter ended. Mr. Carter failed to re-invent himself as a functioning worker, and so he did not get ADA protection. There was no fixed identity script to justify the accommodation, but rather an indeterminate managerial process to hash it out, to be repeated over and over in contexts in which law emphasizes the uniqueness of the individual being managed.
O'Brien argues that the interactive process undercuts Weberian standardization and enables sites of resistance to dominant workplace norms. Identities as processes are indeed more fluid and perhaps able to muster resistance and take on new forms, as Minow also hoped they would be. But the question is, who is likely to have more power in the management of these accommodations? Legal identity is a process here, too, not a boundary enclosing a certain group of people. Laws can govern by categories ("No vehicles in the park") or processes ("Petition the park manager to see if you can bring your vehicle in the park"). We think that civil rights laws govern by categories ("disabled") but we see that they can certainly operate as processes ("Did you emerge as someone who can be accommodated?"). While this new way of conceiving of law and identity certainly opens possibilities for social change (re-making the spaces in which we live and work), there is little reason to think that it is somehow intrinsically liberating. Shep Melnick's work on the Education for All Handicapped Children Act shows how creating processes honored the individualism of every child but also created an unwieldy system that conveniently helped politicians seem responsive to the diversity of needs while moving the burden of enforcing the law onto parents and guardians (Melnick, 1995). We must examine the processes that produce legal identities as well as continue to interrogate the categories that define them.
Fat Identity as a Process, Not a Status
When it was enacted, the ADA looked like it might fulfill advocates' hopes for accommodation of a group (a sufficiently coherent notion to attract the necessary political consensus) without suppressing individual variation and adaptation among disabled people. As theorists like Janet Halley have emphasized, civil rights campaigns on behalf of other groups such as "women" and "gays" have put up with a monolithic account of their groups' experience because individual variation within the group often counts as evidence against group subordination (Halley, 2000). The obvious fact that disabilities can be of many kinds would seem to undermine such solidifying tendencies, and law's enthusiastic embrace of this individualist, inessentialist picture of disabled people alleviates this particular worry. If one is opposed to highly scripted identities, as K. Anthony Appiah calls them, then one might wish for more contingently defined legal categories (Appiah & Gutmann, 1996, p. 99).
Should we be pleased that the ADA seems to represent a legal subject whose identity is inessential, protean, and available for re-creation? Will such a conception help construct new practices that fat advocates describe, through which they hope to "revamp fat subjectivity, accord new usefulness to the signifier of fat, and to explore new linkages of affinity and action" (LeBesco, 2004, p. 123)? Fatness is a fascinatingly unbounded trait, after all: Supposedly more and more of us are joining the category all the time; it seems to combine mutability (if overeating makes one fat) and immutability (if it is true, as much research suggests, that dieting is hopeless for many fat people) (Wadden, Sternberg, Letizia, Stunkard, & Foster, 1989); it varies over the lifespan and with contingencies such as medications or injuries; its meanings change with racialization, sexualization, and gendering (e.g., Gilman, 2004); and its prevalence varies geographically, even if one focuses only on the contemporary U.S. What does this openness of the class portend? What does it mean to try to construct a legal identity out of this group of people, and to insert them into the managed processes I've described here?
People with disabilities, as we saw, emerge in a legal framework that acknowledges the social production of functional capacity but that nonetheless must work itself out on particular individuals. The high level of contestation over who fits under ADA coverage begins at the highest levels of its interpretation and carries all the way down to the level of the interactive process (as we saw with Mr. Carter). Because the identity group to be protected was understood as constituted socially and environmentally and not pre-fixed, the ADA adopted a threshold inquiry into membership into the group, then a negotiation of accommodation. These are its two most critical features. The ADA, I argued, regulates persons through its categorical elasticity and the practices of accommodation that it has produced within organizations. While other laws certainly do so as well, the ADA is unique for blending this regulation with a still-unstable identity category. Most commentators have been focused on the ADA's accommodations as yet-to-be-realized redistributive benefits, but my analysis troubles the linkage between justice and accommodation.
Principally, I find the trouble in the ways that the social practices of the ADA construct a regime of what I've termed managerial individualism. Nikolas Rose points out that in the current period, "regulatory practices seek to govern individuals in a way more tied to their 'selfhood' than ever before" (1996, p. 169). It is in this sense that I argued that identity is becoming a process in the law, not something that demarcates a class, but that we ought not wax romantic about processes. Moreover, fat identity will not be assisted in its political emergence by gaining disability rights, because they will operate managerially on fat people one by one, destabilizing opportunities for collective accounts of fat oppression. Even those activists and scholars who want fat identity to be queer rather than united and normative (LeBesco, 2004) should take stock of how law takes advantage of an open field for identity. Scholarly discussions about governance, resistance, and identity formation should turn toward recognizing the full implications of such a concept. Entirely new questions arise, then, not so much about the proper placement of the boundaries, but about the social practices and legal rules that construct the process and thereby the identity.
Margaret Sommers, Accommodations Assessment Advisor
We cannot afford to consider the ways that law promotes certain social practices of identity without also noting the managerialization of law, which sociologists Lauren Edelman, Sally Riggs Fuller, and Iona Mara-Drita define as "the process by which conceptions of law may become progressively infused with managerial values as legal ideas move into managerial and organizational arenas" (2001, p. 1592). In their study of the transformation of "diversity rhetoric" within organizations, Edelman, Fuller, and Mara-Drita suggest that "the managerialization of law has the potential to undermine legal ideals as managers shift the focus of attention from law to management" (Id.). Recall Margaret Sommers, the professional "accommodations assessment advisor" from the Carter case. Could she represent a contingent of knowledge workers who are currently constructing the social practices by which law intervenes into the meaning of disability? Is she part of the group that Eric Abrahamson calls "management fashion setters–consulting firms, management gurus, business mass-media publications, and business schools" that promote, as he puts it, "the appearance of rationality and progress" (1996, pp. 255, 259)? Her function was literally to manage Romell Carter's relationship to the legal protections offered under the ADA, after all. We must remember to give a critical place in our analysis of fat politics to those professionals who will actually do the work of managing fat employees in work spaces, employee benefits programs, health care, and in places of public accommodation, because when identity is a process then there must be practitioners.
When the context is the legal determination of functionality, emphasizing individualized assessments of disabled workers touches off powers of management within the organizations that the law regulates. Managed individualism may be the new legal individualism. Its main function is to preserve the functionalist account of what people deserve, even in the face of compelling group-based subordination and even where there is some political consensus that redistributions or accommodations are acceptable. Now the Supreme Court is strictly monitoring the boundaries of the protected category "disabled," and individual disabled people find their functioning "socially constructed"–through organizational practices and personal interactions–but without a sustained critique or shared agreement about the power dynamics of the workplace that delineate the functional from the dysfunctional. I intimated at the start of this essay that medicalization often secures sympathy, of a certain pat-on-the-head sort, from the dominant culture. (Though certainly not always. Eugenics campaigns and the construction of homosexuality as pathology certainly stand as counter-examples to even the patronizing version of medicalized sympathy.)
Might we secure medicalization for fat citizens, but without a critique of the politics of disgust? Feelings of disgust often track delineations of subordinated groups, and disgust plays an important role in the law (Nussbaum, 2004). Tobin Siebers's analysis of disability and the culture wars reminds us that oppression "often takes the form of an aesthetic judgment, though a warped one, about [minority groups'] bodies and the emotions elicited by them" (2003, p. 185). Paul Campos argues that disgust over fat people, especially over images like fat poor Mexican American women going into Wal-Mart, shows that they are the new target for an old process by which elites maintain their feelings of superiority over the lower classes (2004, pp. 68). Disability politics would seem to answer this disgust by calling forth discrete individuals with highly variable conditions and trying to talk about their rights to full participation in society. I noted earlier that if fat activists want political recognition of fat oppression, accommodations in the public sphere, and recognition in the law, they are faced with a dilemma. I argued that identification as disabled is the current route to accommodations, but also that such recognition may undercut the political solidarity they will need to forge a more positive group identity. If Campos is right at all about the operations of a large-scale politics of disgust that serves the interests of many elites, it is going to take a lot of work to generate this positive group identity for fatness no matter how strictly or contingently it is constituted.
The challenge, after all, is to find a politically appealing argument about why fat people should be protected from negative consequences of being fat. If transcendence-to-ability will not do as a proposal because it leaves out too many differently-functioning people, then the accommodationist features of disability laws seem appealing. One particularly promising example is San Francisco's weight and height antidiscrimination ordinance, which blends the best of non-discrimination and disability accommodations without any need to claim a medicalized impairment. There does not have to be anything wrong with a fat person; she simply has a right to insist on access and equal treatment as a member of a named category. It exemplifies the common sense notion that accommodations must be part of equality when people differ in ways that cannot be ignored. (Imagine the ADA if everyone who interpreted and implemented it had always used a social model of disability all along.) The Human Rights Commission Compliance Guidelines require reasonable accommodations in both employment and public accommodations, and give as examples larger seating in movie theaters, steps and handrails on swimming pools, and properly fitting hospital gowns, blood pressure cuffs, and uniforms (Compliance Guidelines). The ordinance also prohibits harassment and covers housing discrimination as well. The enforcement powers are limited to mediation, however. The ordinance does not create identity through a managerial process, but rather constructs fat identity as simply different, and weaves accommodation requirements into the basic notion of non-discrimination.
How might producing fat people as disabled actually work, at least for everyone else who does not reside in San Francisco? Fat workers may be easier to accommodate under the ADA regime than workers with other kinds of disabilities, since they may only need armless chairs. Public accommodations may be as simple as creating a few larger-sized seats in airplanes, buses, and theaters, for instance. These accommodations are so obvious that they may not require much interaction and scrutiny. If obesity is considered a disease and if treatment compliance were also protected, workers would require time during the day for exercise and availability of lower-calorie food in cafeterias. Businesses may happily go along with such requirements because they are not very expensive (in the case of armless chairs), and they may please everyone, not just fat employees (in the case of better food and exercise time). If the process goes something like this, then one version of fat identity will be produced in a way that undercuts the individualism I have criticized here. Their accommodations may be simple and common enough to undercut the relentless drumbeat of individual variation in disability law. The powerlessness of an individual in the interactive process would be assisted by the sheer obviousness (and non-individualized nature) of the accommodation. Emphasizing how a few simple changes in work space can provide equal opportunity will make the hegemony of thinness more and more untenable.
This story has a happy ending, in which recognizing fatness as a disability is transformative for disability law as I've critically described it. But fatness as disability might turn out to be part of managerial individualism rather than a challenge to it. After all, fatness varies widely by degree as well as by its impact on health and mobility. If talking about fatness always begins with a nod to the infinite variation of fatness in different people's lives, then it is on the same trajectory as other disabilities. Determining access to rights will require scrutinizing bodies to determine where they will fit and what they can do. Fat also carries different meanings in intersections with race, ethnicity, gender, and sexuality, and these variations will make it difficult to describe uniform fat experiences with discrimination. And there is no reason to think that fat employees will not also be unruly and uncooperative in the interactive process. They may be loath to take on the label of disability (as "Kitty Kat" is) and to claim rights in a way that is recognizable to the employer, and if they do, they will face all the challenges of the power imbalance. The legal production of fat identity will be a fascinating site for study for years to come, and we will see a developing example of how a group of people come to be seen as deserving, on what terms, and by what methods.
The ADA was supposed to mean a lot of things initially: perhaps that disabled people were a "discrete and insular minority," or perhaps that disability is a socially constructed idea that can be unmade through sympathetic accommodations. People with disabilities certainly did not turn out to be legally "discrete" in the sense of "readily identifiable, marked, set apart." Who is disabled as a matter of law is anything but clear. Nor does insularity play any part in legally defining disability. Where law gives up clear standards, it must have process instead. What disability laws actually mean for disabled identity can be understood through the social practices they establish. The answer to the puzzle of who is disabled but still able to work has been managerial individualism, and we must anticipate that fat identity will likely be drawn into legal coverage on these terms.
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Notes:1 Michigan and the cities of Santa Cruz, CA, San Francisco, CA, and Washington, DC extend protection against discrimination based on body size. Mich. Comp. Laws Ann. § 37.2202(1)(a) (West Supp. 2001); Santa Cruz, Cal., Mun. Code § 9.83.010 (1995); San Francisco, Cal., Compliance Guidelines to Prohibit Weight and Height Discrimination (July 26, 2001); D.C. Code Ann. § 2-1401.01 (2001).
I would like to thank John Carson, Abigail Saguy, Tobin Siebers, James Boyd White, two anonymous DSQ reviewers, and the participants in the discussion of an earlier draft of this paper at the University of Southern California Center for Law, History and Culture for their very helpful responses to this work.
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