GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact doctrine. There is thus a tension between privacy and effectuating certain employment discrimination policies that are directed toward antisubordination ends. After exploring the tension that sometimes exists between privacy and antisubordination, this Essay argues that, in the statutory areas of the Americans with Disabilities Act and GINA, foregoing privacy is often desirable in order to fight subordination by employees revealing, and employers considering, particular health traits and information.

While most scholars writing about antisubordination and anticlassification have done so in the context of equal protection, this Article systematically applies antisubordination and anticlassification values to assess recent developments in employment discrimination law and explore how they might tell us something about the trajectory of employment discrimination jurisprudence. In 2009, the Supreme Court decided Ricci v. DeStefano, a landmark Title VII case, and in 2008 Congress passed two new laws: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). These changes potentially undermine the very normative foundation of employment discrimination law.

This Article argues that the major employment discrimination statutes have until recently had a substantial antisubordination orientation, in that they were designed to respond to a history of discrimination and incorporate many provisions that expressly take account of forbidden traits (through doctrines like disparate impact and reasonable accommodation). This Article then explores how recent changes to the Americans with Disabilities Act (ADA), Title VII, and the enactment of GINA may imperil the underlying normative foundation of employment discrimination law by turning toward and emphasizing anticlassification values at the expense of employment discrimination’s antisubordinationist foundation. The Article concludes by evaluating the turn, questioning whether the antisubordination/anticlassification distinction is the most apt framework for evaluating employment discrimination law, and suggesting a few changes that may help preserve the valuable antisubordination foundations of employment discrimination law.

An almost identical binary exists for disability, the disablement/ impairment binary, in which writers characterize disablement as the social construct, and impairment as the disabled person’s body. This disability binary has received sparse critical attention; while few legal scholars have provided ringing endorsements, none have provided a systematic critique of the binary or examined the legal implications attendant to such a critique. Yet, just as with legal scholarship on gender and sex, there are important legal implications to making further sense of the meaning of disability.

In this Article, I make disability trouble by arguing disability is more socially constructed than acknowledged. In particular, and contrary to most literature, I argue that biological impairment is itself a social concept. Initially, I explain how impairment, according to those who coined the disability binary, appears to be little more than diagnosis. From there, I argue, using concrete examples, that both the creation of diagnoses and acts of diagnosis are social processes. Finally, I examine the legal implications of disability trouble.

Concern over the ADA could hardly be more timely. In July of 2007, bipartisan legislation based on the National Council on Disability's recommendations was introduced in the House of Representatives. It was entitled the “ADA Restoration Act of 2007,” (H.R. 3195) and would represent a significant change to the present statute.

After briefly explicating the two dominant theoretical models for understanding disability — the medical and social models of disability — I examine how most of the problems with how disability is understood and interpreted stem from the entrenchment of the medical model of disability. I explain how representations in the media and federal court decisions have underscored a “medicalized” view of disability. Moreover, I document how such a view has fostered misperceptions and false stereotypes concerning those with disabilities.

Finally, I advocate that Congress pass an ADA Restoration Act similar to the one that was recently proposed. I explain how this Act would overhaul the ADA and provide a compelling solution that has not yet received much scholarly examination. I also recommend the EEOC draft reports to document systemic disability discrimination toward certain groups.

In the legal context, intersectionality has typically arisen in cases of employment discrimination, where those who theoretically could file a claim under more than protected category are forced to choose only one for their claim—for example, parsing one’s identity as either race or sex, even though a statute like Title VII provides legal recourse under both categories. Intersectionality provides a framework in which those who suffer “multiple” forms of discrimination can identify each of those forms, instead of pigeon-holing their discrimination as, for example, based solely on race or sex.

Courts have yet to achieve an adequate conceptual construct for examining discrimination on multiple grounds. There is currently great confusion in courts regarding how to reconcile the claims of intersectional plaintiffs with existing law. This article examines the various judicial contexts in which intersectionality has arisen and why different courts’ treatments of the topic have failed to establish useful precedent.

Finally, this article advocates an amendment to Title VII that would cohere with its original legislative intent. Such an amendment would encourage intersectional Plaintiffs to bring their claims and help educate both courts and legal practitioners regarding how to effectively represent and rule on the claims brought by intersectional Plaintiffs.