Events were moving in a strangely peaceful direction. In conjunction with the Human Rights Campaign and Amnesty International, the Gloaming Council organized a “blood drive for peace,” where humans donated their blood as a show of reconciliation with the Gloamings and to demonstrate that armed conflict was not the solution to the present-day issues. The council hoped to facilitate a more mainstream system in which Gloamings could purchase blood donated willingly by humans. Various distribution centers were already planned for cities all over the country to facilitate the logistics of a legal blood bank. A grocery store for Gloamings.
The arguments immediately erupted: many academics likened this process to the selling of organs, and worried about the exploitation of the economically disadvantaged people more likely to sell their blood. But many recognized the need for Gloamings to have food for their survival. However, the moral equation is significant: even in these early days of the blood drive for peace, research is already showing that frequent blood donors have significant health problems. Should we condone voluntary harm to others in order to help another segment that has put themselves at voluntary risk?
Thinking about it only made me feel worse.
I found Hector standing in front of the kitchen counter, head cocked to the side, with a slight smile, tapping his foot to some song playing only in his head. We promised long ago not to discuss the traumas I had faced these past few years on the front lines. No talk of the dangers or of when they were going to happen.
The nervous man I had first met back in Nogales had transformed. He would hand me a cup of black coffee in the morning and calmly ask, “Looking at viruses today?”
And I would smile. No answer. It reminded me of what my dad used to tell me: “Believe half of what you see and none of what you hear.”
I took up smoking again, thinking it would help with the stress I faced every day. It didn’t seem to help; I started waking up sick, vomiting. This went on for a week, until one afternoon when I was sitting there in the car, tired, at a red light. Then I bolted upright. How could I have been so stupid? I turned into the nearest pharmacy and ran inside.
I quit smoking that day, for good.
I was pregnant.
Of course we waited until after I became pregnant to finally get married. We drove to Nogales—I know: why would we want to relive all of that distress and drama? But it just made sense for us. We married quietly at Nogales City Hall. My parents Skyped in, and when I saw my father crying, I felt the tears coming too. I’m sure they were, like me, both overjoyed and thinking of Jennifer.
Being so close to New Mexico did make me think of everything we had been through, everything that was still in front of us. There were still an inordinate number of military vehicles all through Arizona and the Southwest, so it was hard to think of anything else. A part of me wanted to see the mass grave again but it was now a closed military area. I made do with a tour of the new Nogales autopsy center. What a honeymoon.
We decided to avoid the main highway on the route back to California, traveling the back roads near the Mexican border. The dusty, vacant roads made me think of my family’s long road trip to Disneyland when Jennifer and I were kids. My father had decided to save time by taking these same back roads, and I loved listening to the border radio stations that bled into U.S. radio waves. Mexico, of course, being unencumbered by FCC regulations regarding signal strength and radio wave placement, would line the border with stations, illegally broadcasting any show imaginable along both sides of the border: crazed preachers from every imagined sect, deranged amateur scientists peddling sham cures for any ailment, Spanish rap, hillbillies, lunatics, Tejano, conjunto, Mexican talk radio. Jennifer and I sang along loudly when we recognized the music, but often we just had to listen: a buzz of tunes and voices and static, like a hallucinogenic drug.
Now I thought, what kind of chaotic future were we headed toward? The Gloamings had attempted to enforce a strict method and procedure to govern re-creations, but a new band of savage Gloamings had established their own rules and refused to adhere to the proposed criteria. As more Gloamings were re-created, they searched for more power, more land, more feeding opportunities. Once I had been in the thick of it. Now I was a bystander.
I asked Hector to pull over. I stepped out of the car, and as the warm wind brushed my face, I stared at the vast expanse of desert stretched to the horizon. I covered my stomach protectively. And as the sun began its descent, I felt that familiar foreboding: ever since Nogales, every night always seemed to bring a bit of anxiety with it. But that evening I said a prayer for the morning, and for a sunbeam that would cover us like a shield of light.
Epilogue
Night One
When I was a child, my family visited the Joshua Tree park, and I wandered away. I became lost in the desert. My parents found me before too long, but I’ve never forgotten the absolute fear and loneliness I felt, surrounded by boulders and the Joshua trees, the kangaroo rats and jackrabbits scurrying past. Every rustle or crackle terrified me: my father had told me about coyotes that day, and I was certain each noise must be a coyote about to pounce.
But that is not me anymore. I’m standing in the desert. I’m alone, not sure how I got here: I can only feel this new…hunger.
No, not hunger. Thirst.
How hard will it be to control this urge? Do I want to? There is no one stronger than me, so I simply cannot know. I only know that I belong to the future. Not just me—there will be more. And I know we must be prepared to lead, never follow.
My name is Liza Sole, and around me the night air is still.
Appendix One
The University of Texas School of Law
The Review of Litigation
Condensed version of the article “Can the Gloamings and the NOBI Virus Coexist Within the ADA?”
Fall/Winter
The Americans with Disabilities Act of 1990 (ADA) was passed by Congress and signed by the president “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”1 Since passage, courts have struggled to interpret the meaning of the term “disability,” with some courts opting for a more liberal interpretation and others preferring a more restricted view of the term.
Within the context of the term “disability” and its evolution, soon another factor emerged to challenge preconceived notions and settled law: the NOBI virus and the persons who emerged from its effects, the Gloamings. As the Gloaming population increased, many of the re-created began to push for more rights to accommodate their unique position in this country. Many of the Gloamings were being terminated from their jobs because employers had less use for employees who could not work during traditional working hours—namely the usual nine to five—and could not be out during the daytime.
The Gloamings were forced to find other occupations when many courts upheld the rights of employers to terminate them for the material change in circumstances. The Gloamings attempted to assert that their condition was covered by either the Family and Medical Leave Act (FMLA) or the ADA. The FMLA basically gives an employee the right to take a certain amount of time off because the employee is incapacitated by a health condition. The time period covered is up to twelve weeks. Obviously, the Gloamings were afflicted with their condition for more than twelve weeks, but attorneys for the Gloamings wanted the courts to expand the amount of time given to them or force the employer to make an accommodation for the condition. The federal courts were unwilling to extend the protections of the FMLA to cover the Gloamings and their new condition.
Many courts argued over terms such as “covered entity” (meaning an employer, employment agency, labor organization, or joint labor-management committee) and “qualified individual with a disability” (identified as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”). 42 U.S.C. § 12112(a); see a
lso § 12111(2) and (8).
In Andrew Davis v. Grant-Johnson Advertising, the Ninth Circuit Court of Appeals went even further by holding that in determining whether an accommodation is “reasonable,” one must look at the costs of the accommodation in relation to its benefits and whether accommodating a Gloaming in a work environment would impose an undue hardship upon an employer. The court observed that “[t]he statutory reference to a substantial limitation indicates…that an employer regards an employee as handicapped in his or her ability to work by finding the employee’s impairment to foreclose generally the type of employment involved.” Ibid. But petitioner had alleged only that respondent regarded them as unable to satisfy the requirements of a particular job, which was as an associate attorney. Consequently, the court held that petitioner had not stated a claim that they were regarded as substantially limited in the major life activity of working and that an employer could not be expected to make a reasonable accommodation for the petitioner and any accommodation would not be considered reasonable. Employing similar logic, the Court of Appeals for the Ninth Circuit affirmed the district court’s judgment. 130 F. 3d 729 (2018).
The Gloamings then sued under the ADA for their new protections. The ADA protects a worker who needs to take sick time for a condition that qualifies as a disability under the act. The Gloamings asserted that their condition was a disability as defined by the ADA. And therefore, the employers must make a reasonable accommodation to allow them to keep and do their jobs. All of the employers asserted that to make a reasonable accommodation for the Gloamings would result in an undue hardship to the employer which is a defense to an ADA claim.
The ADA’s definition of disability is drawn almost verbatim from the definition of “handicapped individual” included in the Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B) (1988 ed.), and the definition of “handicap” contained in the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3602(h)(1) (1988 ed.). Congress’s repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with preexisting regulatory interpretations. See FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437–438 (1986); Commissioner v. Estate of Noel, 380 U.S. 678, 681–682 (1965); ICC v. Parker, 326 U.S. 60, 65 (1945). In this case, Congress did more than suggest this construction; it adopted a specific statutory provision in the ADA directing as follows:
“Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by federal agencies pursuant to such title.” 42 U.S.C. § 12201(a).
The directive requires courts to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.
The EEOC issued an “interpretive guidance,” which provides that “[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines or assistive or prosthetic devices.” 29 CFR pt. 1630, App. § 1630.2(j) (1998) (describing § 1630.2(j)). The Department of Justice has issued a similar guideline. See 28 CFR pt. 35, App. A, § 35.104 (“The question of whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable modification or auxiliary aids and services”); pt. 36, App. B, § 36.104 (same). The Department of Health, Education, and Welfare (HEW) issued the first regulations interpreting the Rehabilitation Act in 1977. The regulations are of particular significance because, at the time, HEW was the agency responsible for coordinating the implementation and enforcement of § 504. Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 634 (1984) (citing Exec. Order No. 11914, 3 CFR 117 (1976–1980 Comp.)). The HEW regulations, which appear without change in the current regulations issued by the Department of Health and Human Services, define “physical or mental impairment” to mean:
“(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine; or
“(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 45 CFR § 84.3(j)(2)(i) (1997).
In issuing these regulations, HEW decided against including a list of disorders constituting physical or mental impairments, out of concern that any specific enumeration might not be comprehensive. 42 Fed. Reg. 22685 (1977), reprinted in 45 CFR pt. 84, App. A, p. 334 (1997). The commentary accompanying the regulations, however, contains a representative list of disorders and conditions constituting physical impairments, including “such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and…drug addiction and alcoholism.” Ibid.
The definition of disability also requires that disabilities be evaluated “with respect to an individual” and be determined based on whether an impairment substantially limits the “major life activities of such individual.” § 12102(2). Thus, whether a person has a disability under the ADA is an individualized inquiry. See Bragdon v. Abbott, 524 U.S. 624, 641–642 (1998) (declining to consider whether HIV infection is a per se disability under the ADA); 29 CFR pt. 1630, App. § 1630.2(j) (“The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual”).
In 1980, the president transferred responsibility for the implementation and enforcement of § 504 to the attorney general. See, e.g., Exec. Order No. 12250, 3 CFR 298 (1981). The regulations issued by the Justice Department, which remain in force to this day, adopted verbatim the HEW definition of physical impairment quoted above. 28 CFR § 41.31(a)(1) (1997). In addition, the representative list of diseases and conditions originally relegated to the commentary accompanying the HEW regulations were incorporated into the text of the regulations. Ibid.
As many Gloamings began to be negatively impacted in the workplace and sought redress in the court system, many courts determined that the ADA must be construed to be consistent with regulations issued to implement the Rehabilitation Act. See 42 U.S.C. § 12201(a). Rather than enunciating a general principle for determining what is and is not a major life activity, the Rehabilitation Act regulations instead provide a representative list, defining terms to include “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 CFR § 84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2) (1997). As the use of the term “such as” confirms, the list is illustrative, not exhaustive. However, neither the ADA nor the regulations address whether the intent of the person in acquiring the disability should be considered when determining whether a person should be covered under the ADA.
The most important case in establishing Gloamings’ workplace rights was won by the Gloamings when the plaintiff convinced the court that telecommuting was considered a reasonable accommodation. This case was reversed by the Court of Appeals and not taken up by the Supreme Court.
The Supreme Court finally took up the issue in Kurt Jennings, Petitioner v. Allen and Jacobs, LLC., on writ of certiorari to the United States Court of Appeals for the Ninth Circuit. After a lengthy analysis, the Supreme Court determined that “in the end, the disability definition does not turn on personal choice. When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable. However, when a person willingly brings changes of a harmful physical nature which are an absolute certainty, then the ac
t should not afford the person the same protections afforded those who have acquired the limitations through no fault of their own. Testimony from the petitioner that his NOBI infection was entirely his choice is unchallenged. App. 22; 721 F. Supp., at 412; 107 F. 5th, at 524. In the context of reviewing summary judgment, we must take it to be true. Fed. Rule Civ. Proc. 56(e). We agree with the district court and the Court of Appeals that no triable issue of fact impedes a ruling on the question of statutory coverage. Petitioner’s NOBI infection is a physical impairment which substantially limits a major life activity, as the ADA defines it; however, his impairment is not covered by the ADA because he willingly and with absolute certainty acquired the infection through his own actions.
“The determination of the Court of Appeals that petitioner’s NOBI infection was not a disability under the ADA is affirmed. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.”
1 42 U.S.C. § 12101(b)(1) (1994).
Appendix Two
Vanity Fair
The Gloaming Gambit
Excerpted from The Gloaming Rise to Power by Edward Ward Jr.
After failing to sway any state legislature in America to pass Gloaming protection laws, the Gloamings decided to try their persuasive power on a legislative body more susceptible to their unique form of lobbying: the United States Congress.
As often happens during the process of many historical events, the circumstances along the periphery of the proceedings are as compelling as the actual occurrence. Many of the performers of this wide-ranging spectacle carried their own baggage through every scene.
A People's History of the Vampire Uprising_A Novel Page 37