Intersectional Complications of Healthism

Abstract

For Americans in the labor market with health conditions that fall outside the scope of the ADA, the rehabilitation Act, and GINA, antihealthism legislation, like the kind proposed by Roberts and Leonard, 9would unquestionably serve as a critical first step in increasing their legal protections in the workplace. Moreover, to the extent that such legislation would also operate outside the workplace, it could expand legal protections even for individuals who presently enjoy coverage by disability and genetic discrimination laws solely inside the workplace. Yet, as this article has argued, simple healthism-discriminatory animus based solely on health-may be surprisingly rare. Existing empirical evidence already suggests the frequency and severity with which sexism exacerbates healthism in the workplace (and presumably, outside the workplace as well). Considering courts' historic inability to recognize intersectional claims in the absence of express statutory recognition-and appreciate the exacerbating effects of multiple types of discrimination,-the existing evidence both highlights the importance of explicitly incorporating protections for sex-health intersectionality into antihealthism legislation, and contemplates proactive protections against other types of intersectional healthism that may already exist, but are less well understood.

Still, given the current political climate, the argument presented here regarding new antihealthism legislation may seem to be a mere thought experiment in a pure hypothetical. The new Republican presidential administration-along with the newly installed One Hundred and Fifteenth Congress with Republican majorities in both houses-have repeatedly signaled their hostilities towards existing civil rights protections, let alone new civil rights protections. Yet new antihealthism legislation may not be completely out of the question in the coming years. Whether or not Democrats like to admit it, all existing federal protections against health-related discrimination in the workplace have passed during Republican presidential administrations: the Rehabilitation Act passed in 1973 under President Richard Nixon's administration, the ADA passed in 1990 under President George H. W. Bush's administration, and both the ADAAA and GINA passed in 2008 under President George W. Bush's administration. Indeed President George H. W. Bush recently recalled the ADA as one of his "proudest achievements."

If this suggestion proves overly optimistic, however, and antihealthism legislation like the kind proposed by Roberts and Leonard remains unrealized in the coming years, they have nonetheless presented a compelling argument for courts to intervene and interpret existing health-related protections more broadly. This is especially true with regards to the ADA, which holds the potential to have the broadest reach.9 8 Along these lines, the evidence reviewed in this article at the very least presents additional grounds for courts to resist their historical urges to parse a multifaceted claim brought under existing antidiscrimination statutes into multiple, individual claims. Instead, courts must recognize that discriminatory animus can compound-particularly when health is involved-and open the door to consideration of these multifaceted, intersectional claims under existing antidiscrimination laws.