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.
1
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
2 THE GEORGETOWN LAW JOURNAL [Vol. 111:1
