Ann Hubbard. Adjunct Professor, University of North Carolina School of Law. I am grateful, as always, to Lou Bilionis for his critical insights and exceptional care. I also thank Martha Fineman for inviting me to present an earlier version of this paper at her Feminism and Legal Theory Workshop on "The Subject of Disability," and Anita Silvers, Eva Feder Kittay and the participants of the National Endowment of the Humanities summer seminar, "Justice, Equality and Disability," for their ideas and encouragement. Finally, I thank Maxine Eichner for her comments on a draft of this essay, and I am especially grateful to Peter Blanck and the outstanding student editors and organizers of this symposium for the pleasure of working with them.
In some respects, sex discrimination and disability discrimination are variations on a theme: same struggle, different difference. Like non-disabled women, men and women with disabilities are stigmatized or devalued because they deviate from society's unspoken norm: a white, heterosexual, "able- bodied" male. They fight similar paternalistic and disabling assumptions about their "natural" weakness, dependency and (in)ability to participate equally in all of society's roles. Not surprisingly, feminist theory and disability theory have much to offer one another, reinforcing each other where their perspectives overlap, informing each other where their interests diverge.1
In that spirit, this essay addresses questions of family care" needing and providing it" from both feminist and disability perspectives. It builds from a disability law objective: to enlist feminist scholarship to demonstrate that caring for others should be deemed a "major life activity" under the Americans with Disabilities Act (ADA).2 This would mean that an individual with an impairment that substantially limits her ability to care for her loved ones could qualify as "disabled," and therefore protected by the ADA.3 To that end, Part II analyzes and synthesizes feminist literature that establishes the critical role of caring in the perpetuation and flourishing of individuals, families, communities and society and its principal institutions.
That, in itself, is a valuable contribution. But lawyers, scholars and activists alert to the potential of interdisciplinary inquiry to achieve the law's transformative promise need not stop there. Feminist teachings about dependency needs and family caretaking responsibilities, along with feminism's success at creating public and political awareness of these issues, offer broader insights to challenge the social structures and cultural myths that perpetuate stereotypes and misconceptions about the concept and consequences of "disability." Several of these insights are discussed in Part III. We begin in Part I with the doctrinal framework for identifying major life activities under the ADA.
Existing legal understandings of major life activities are, at the very least, hospitable to recognizing caring (or "caregiving," "caretaking" or "care work")4 as a major life activity. The text and history of the ADA make clear that Congress had an expansive conception of what is important in modern American life, including family and social ties, and the Supreme Court has recognized the "breadth" of the term "major."5 That said, the legal case for caring as a major life activity" and, indeed, the law on major life activities generally" is somewhat skeletal: bare bones with little meat or muscle. The ADA does not define "major life activity," applicable regulations do not provide standards or criteria for deciding what is "major,"6 and the Supreme Court's interpretation of "major" as "significant" or of "comparative importance" does not provide a firm compass for lower court judges. As a brief review will confirm, what law does exist points toward caring as a major life activity.
Because neither the ADA nor its predecessor, the Rehabilitation Act of 1973,7 expressly defines "major life activity," a proper understanding of that term requires interpreting the ADA as a whole, with guidance from its legislative history. A faithful reading of the statute and its history makes clear that Congress had an expansive conception of what is important in modern American life, from the monumental to the mundane.8 The ADA seeks equal opportunity and full participation in virtually every aspect of public and private Page 330life: economic, commercial, educational, vocational, cultural, recreational, political, civic and social.9 Its stated purpose is to provide a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities,"10 thus allowing them "the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous."11 Major life activities must have a correspondingly expansive construction to achieve these ambitious, far-reaching goals.
Applicable ADA and Rehabilitation Act regulations do little to flesh out this vision. Rather than providing substantive criteria for defining major life activities, they offer only a list of illustrative examples. These include basic functions like performing manual tasks, walking, seeing, hearing, speaking and breathing, as well as the more complex activities of caring for one's self, learning and working.12
The Supreme Court's early pronouncements on major life activities counsel an expansive conception of that term, but provide little concrete guidance on defining "major." The principal decision construing major life activities is Bragdon v. Abbott, which recognized reproduction as a major life activity.13 The Court held that "'[t]he plain meaning of the word 'major' denotes comparative importance.'"14 Applying this standard, the Court had "little difficulty" concluding that reproduction is a major life activity, as "[r]eproduction and the sexual dynamics surrounding it are central to the life process itself."15 The Court expressly denied that major life activities must Page 331 have a daily, public or economic character,16 concluding that the "breadth of the term confound[ed]" any such attempt to limit it.17 Identifying reproduction as a major life activity also implicitly rejects the contention that a major life activity must be important to or performed by all persons.18
The Court again addressed the term "major life activity" in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,19 which concerned the standard for determining whether an individual is substantially limited in the major life activity of "performing manual tasks."20 Reiterating that "major" means "important,"21 the Court held that the major life activity of performing manual tasks encompasses those tasks "that are of central importance to daily life."22The "variety of tasks central to most people's daily lives," the Court then declared, includes tasks related to household chores and personal hygiene.23
On its face, caring for others comfortably satisfies the Court's criteria for major life activities. No less than reproduction, caring is central to the life process; reproduction creates a life, caring sustains it. Human dependency is inevitable, our need for care universal. At the very least, if having a child is a major life activity, so, too, is caring for that child.24 Moreover, the common Page 332household chores that Toyota accepted as part of the major life activity of performing manual tasks also form part of the labor of caring for one's family members. Besides, it would be curious to hold that caring for one's house was more important than caring for the people who live in it.
That is, however, only a general" and generous" reading of the Court's major life activity precedent. In other respects, the Court's signals are not so encouraging.25 Four justices dissented in Bragdon, denying that reproduction is a major life activity. Chief Justice Rehnquist would interpret "major" to refer only to activities that "are repetitively performed and essential in the day-to-day existence of a normally functioning individual."26 On this view, "major" activities would not include decisions of "fundamental importance," such as whether to have children, "who to marry, where to live, and how to earn one's living."27 Justice O'Connor took a similar view. While acknowledging that childbirth is "a very important part of the lives of many women," she would Page 333 limit major life activities to activities routinely performed by "all persons."28
These differences among the justices reflect and generate uncertainty and disagreement about what activities "count" when assessing whether an individual's limitations amount to a disability.29 And while the Bragdon majority invites a generous conception of major life activities, it provides little guidance for assessing the comparative importance of specific tasks or undertakings. Moreover, to say that caring for others is a major life activity does not specify which caring activities or relationships count. In a society that so often obscures the extent and value of caretaking, with a Supreme Court that narrowly construes who can sue under the ADA, judges are unlikely, without more substantive guidance, to define the major life activity of caring in a way that does justice to caretaking in all its relevant forms. The best source for that...