Work Hours and Disability Justice

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 accommodate people permanently excluded by standard hour norms.Close examination of the caselaw suggests that two factors influence courts’ treatment of the ADA’s part-time schedule accommodation. First, caselaw incongruities confirm Michelle Travis’s hypothesis that the 40-hour norm heavily influences courts’ thinking about the reasonableness of part-time schedule accommodations. The caselaw also suggests that an additional factor influences courts’ thinking: courts are sensitive to the reality that existing part-time and full-time opportunities differ on metrics other than total compensation and hours worked, such as per-hour compensation, benefits eligibility, and advancement opportunities. Courts fear that implementing 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 conclude that the ADA can modify 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