Work Hours and Disability Justice

• Author: Jeannette Cox
• Position: Professor of Law and Director of Faculty Research and Development, University of Dayton School of Law
• Pages: 1-30

ARTICLES

Work Hours and Disability Justice

JEANNETTE COX*

Courts frequently conclude that the Americans with Disabilities Act

(ADA) cannot curb the common employer practice of firing or refusing to

hire people unable to work forty or more hours per week. Even courts

that occasionally require temporary part-time schedule accommodations

typically do so only to facilitate a prompt return to standard hours. They

fail to acknowledge that the ADA also requires employers to accommo-

date long-term disabilities.

Close examination of the case law suggests that two factors influence

courts’ treatment of the ADA’s part-time schedule accommodation.

First, case law incongruities confirm Michelle Travis’s hypothesis that

the forty-hour norm heavily influences courts’ thinking about the rea-

sonableness of part-time schedule accommodations. Second, the case

law suggests that courts are sensitive to the reality that existing part-

time and full-time opportunities differ on metrics other than total com-

pensation and hours worked, such as per-hour compensation, benefits

eligibility, and advancement opportunities. Courts fear that implement-

ing the ADA’s part-time schedule accommodation would result in

higher quality part-time opportunities than are otherwise currently

available.

These insights suggest that increasing the availability and status of

part-time work would reduce courts’ concern that the ADA’s part-

time schedule accommodation creates an unusually favored class of

part-time workers. Similarly, removing structural incentives that lead

employers to prefer long hours may reduce courts’ reluctance to

acknowledge that the ADA modifies long-hours culture. These reforms

would not only benefit people with disabilities but would also assist

the large number of people—disabled and not—disadvantaged by the

current bifurcation between standard “full-time” positions and more

marginal “part-time” work.

* Professor of Law and Director of Faculty Research and Development, University of Dayton School

of Law. © 2022, Jeannette Cox. I thank Nicole Porter for helpful comments. I also thank the organizers

of the American Association of Law Schools (AALS) Annual Meeting, Disability Law Section’s Future

of Accommodations Panel on January 5, 2022, and the 16th Annual Colloquium on Scholarship in

Employment and Labor Law hosted by Vanderbilt Law School on October 15, 2021.

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TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. THE UNFULFILLED PROMISE OF PART-TIME SCHEDULE

ACCOMMODATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. COURTS’ ATEXTUAL RATIONALES FOR IGNORING THE ADA’S PART-

TIME SCHEDULE ACCOMMODATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. THE “PART-TIME POSITIONS DO NOT EXIST” APPROACH . . . . . . . . . . . 10

1. The “Part-Time Positions Do Not Exist” Approach in

Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. The “Part-Time Positions Do Not Exist” Approach

Contravenes the ADA’s Text . . . . . . . . . . . . . . . . . . . . . 12

3. The “Part-Time Positions Do Not Exist” Approach

Mischaracterizes Supreme Court Case Law . . . . . . . . . . 14

B. THE “FULL-TIME HOURS ARE ESSENTIAL” APPROACH . . . . . . . . . . . . . 16

1. The “Full-Time Hours Are Essential” Approach in

Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. The Conflict Between the “Full-Time Hours Are

Essential” Approach and the ADA . . . . . . . . . . . . . . . . . 19

III. COURTS’ UNSTATED REASONS FOR REFUSING TO ENFORCE THE ADA’S

PART-TIME SCHEDULE ACCOMMODATION . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. NEW EVIDENCE DEMONSTRATING THAT THE FORTY-PLUS HOUR

NORM IS DEEPLY ENTRENCHED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

1. Courts’ Disparate Treatment of Unusually Long Hours

Versus Standard Hours . . . . . . . . . . . . . . . . . . . . . . . . . . 22

2. Courts’ Preference for Temporary Part-Time Schedule

Accommodations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. RELUCTANCE TO CREATE A FAVORED CLASS OF PART-TIME

WORKERS .............................................. 25

1. Judicial Resistance to the Family and Medical Leave Act’s

Reduced Leave Schedule . . . . . . . . . . . . . . . . . . . . . . . . 25

2. Judicial Reluctance to Conclude the ADA Provides

Individuals with Disabilities Part-Time Opportunities

Unavailable to Others. . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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