Volume 95, No. 2, Winter 2023
By D’Andra Millsap Shu [PDF]

“Where we work matters.”

The wave of remote work that has swept the nation since the COVID-19 pandemic has upended traditional notions about how and where work is performed. Advocates for disabled workers have lobbied for remote work for decades because the standard American workplace is designed around the nondisabled worker. The ability to work remotely is crucial to many workers with disabilities; it often determines whether they can maintain a job. And yet, most employers have refused to embrace remote work as a disability accommodation. This knee-jerk resistance to remote work has often been based on assumptions, past practice, and a lack of imagination rather than a careful, evidence-based examination of what is feasible and reasonable in a particular situation. In litigation, courts typically side with employers, basing their holdings on evidentiary practices that inevitably elevate employers’ concerns over those of employees.

This Article makes two unique contributions to the literature on remote work accommodations. First, it identifies and categorizes these sometimes subtle, but usually dispositive, evidentiary practices and analyzes how each is legally unsound. What the pandemic has taught us about remote work further erodes the bases for these practices, rendering them indefensible. Courts should abandon these evidentiary shenanigans. Second, this Article studies federal remote work accommodations decisions between April 2020 and December 2022. Results are mixed, but there are hopeful signs that some courts are changing practices in light of the mountain of data our pandemic-induced nationwide remote work experiment has generated. This change would be a welcome development for disabled plaintiffs that would help ensure they have a fair chance in court.