Abstract
Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article also contributes a novel analysis of agency guidance by exploring how its support of medical documentation requirements conflicts with legislative intent and the Americans with Disabilities Act’s rejection of the medical model of disability.
Documenting disability has its price. It requires access to affordable health care and a relationship with a health care provider who is willing to confirm a disability’s existence. Documentation requirements may delay an urgently needed accommodation—one that would, for example, permit an employee to work from home. Until documentation requirements are relaxed—if not eliminated—disabled employees may be forced to work in dangerous conditions, or not work at all.
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About the Author
Professor Katherine Macfarlane is a leading expert on civil procedure, civil rights litigation, and disability law. She serves as Director of the College of Law’s Disability Law and Policy Program and teaches Civil Rights Litigation, Constitutional Law, and Disability Law. She is also a Senior Fellow at the Burton Blatt Institute. Professor Macfarlane’s scholarship has appeared in or will appear in the Georgetown Law Journal, Ohio State Law Journal, Washington Law Review, North Carolina Law Review, Fordham Law Review, Alabama Law Review, Yale Law Journal Forum, Columbia Law Review Forum, American University Law Review, William and Mary Bill of Rights Journal, and the Stanford Journal of Civil Rights and Civil Liberties, among others. During the 2022-2023 academic year, Professor Macfarlane served as Special Counsel to the U.S. Department of Education’s Office for Civil Rights. There, she worked on the Department’s overhaul of the regulations implementing Section 504 of the Rehabilitation Act of 1973, focusing on the regulations’ higher education provisions. From 2016 to 2019, Professor Macfarlane was a member of the District of Idaho’s Local Rules Advisory Committee and led a review of the rules’ compliance with Federal Rule of Civil Procedure 83.
Professor Macfarlane received her B.A., magna cum laude, from Northwestern University, and her J.D., cum laude, from Loyola Law School, Los Angeles, where she served as Chief Articles Editor of the Loyola Law Review. She is admitted to practice in California and New York. Professor Macfarlane spent her childhood in Rome, Italy, and is fluent in Italian and Spanish.
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