Hubbard on the Major Life Activity of Caring

New on Westlaw: Ann Hubbard, The Myth of Independence and the Major Life Activity of Caring, 8 J. Gender Race & Just. 327 (2004). The introduction:

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.

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). 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. 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.

This is one of a series of recent pieces in which Hubbard has had very interesting things to say about the "major life activity" definition in the ADA. That recent body of work is, to my mind, among the best disability-law work being published in the law reviews these days.