Anticipating Accommodation

• Author: Jennifer Bennett Shinall
• Position: Associate Professor of Law, Vanderbilt Law School, 131 21st Avenue South, Nashville, TN 37203
• Pages: 621-686

A4_SHINALL (DO NOT DELETE) 1/20/2020 5:59 PM

621

Anticipating Accommodation

Jennifer Bennett Shinall*

ABSTRACT: In theory, a reasonable accommodation mandate can remedy

worker marginalization by requiring employers to make small adjustments in

the workplace that have big payoffs for employees. But in reality, a reasonable

accommodation mandate may be an empty promise. Reasonable

accommodation is the hallmark feature of the Americans with Disabilities Act

(“ADA”), yet decades of empirical studies indicate that wage and employment

outcomes of disabled individuals have not improved—and may have even

worsened—since the Act’s passage. Economists have been quick to blame the

reasonable accommodation mandate for the ADA’s failure, but they have

lacked sufficient data to discern both what aspect of the mandate is

problematic and how to improve it.

This Article is the first to supply the missing data, using two experimental

vignette studies that test decisionmakers’ willingness to accommodate job

candidates and existing employees. The studies find that decisionmakers are

more reluctant to accommodate job candidates than existing employees, and

cost concerns drive much of this reluctance. Based on these findings, the

Article argues that much of the ADA’s ineffectiveness stems from the ambiguity

it creates with respect to the reasonable accommodations disabled workers may

require. Employers have little information about job candidates, making it

difficult to estimate the costs of accommodating a candidate with any

accuracy; accommodating an existing employee is inherently less ambiguous

because employers have prior experience with that worker. As a result,

employers exhibit far more aversion towards accommodating disabled job

candidates than disabled existing employees.

Because the current structure of the ADA only increases this ambiguity,

particularly at the hiring stage, the Article proposes a twofold reform that

*

Associate Professor of Law, Vanderbilt Law School, 131 21st Avenue South, Nashville,

TN 37203. The author wishes to extend particular thanks to Nancy King, Jim Rossi, Chris

Slobogin, Ed Cheng, Deborah Widiss, Katie Eyer, Brad Areheart, Jessica Clarke, Jessica Roberts,

Joseph Fishkin, Joni Hersch, Chris Serkin, J.B. Ruhl, and Kevin Stack, as well as participants in

the 2019 American Law and Economics Association annual meeting, the 2019 Northwestern

University Pritzker School of Law faculty workshop series, the 2019 University of Houston Health

Law and Policy Institute workshop series, the 2018 Colloquium on Scholarship in Employment

and Labor Law, and the 2018 Vanderbilt Law School brown bag workshop series for their helpful

feedback. The author also wishes to thank Hannah Frank for her excellent research assistance.

A4_SHINALL (DO NOT DELETE) 1/20/2020 5:59 PM

622 IOWA LAW REVIEW [Vol. 105:621

promotes clarity in employers’ obligations to accommodate: cost caps to limit

what an employer must spend to accommodate a given employee and the

extension of governmental disability benefits to cover accommodation costs

that exceed those caps. These alterations to the ADA will help reasonable

accommodation achieve its theoretical promise, not only for workers with

disabilities, but also for others disadvantaged by traditionally inflexible

working environments, to whom the reasonable accommodation model may

one day be extended.

I. INTRODUCTION ............................................................................. 623

II. THE STATE OF DISABILITY IN THE WORKPLACE ............................ 628

A.ASSESSING THE PERFORMANCE OF THE ADA ............................. 628

B.THE AMBIGUITY OF DISABILITY ................................................ 634

1.Ambiguity Aversion in Theory ..................................... 634

2.Ambiguity Aversion in Practice .................................... 637

III. EXPERIMENT AL METHODOLOGY ................................................... 640

A.VIGNETTE STUDY DESIGN ......................................................... 645

B.SCENARIO ONE ........................................................................ 648

C.SCENARIO TWO ....................................................................... 651

IV.EXPERIM ENTAL RESULTS............................................................... 654

A.COSTLY ACCOMMODATIONS IMPOSE A GREATER BARRIER

FOR JOB APPLICANTS ............................................................... 655

B.ACCOMMODATION COSTS GIVE RISE TO GREATER CONCERN

THAN DISTASTE FOR DISABILITY .............................................. 657

C.THE UNDERLYING CONDITION CAN AFFECT WILLINGNESS

TO ACCOMMODATE ................................................................. 661

D.ACCOMMODATION IMPOSES A GREATER BARRIER FOR JOB

APPLICANTS THAN EXISTING EMPLOYEES ................................. 665

V. IMPROVING THE ADA .................................................................... 669

A.AGAINST RESTRICTING CONVERSATIONS AT HIRING .................. 669

B.BOUNDING ACCOMMODATION COSTS FOR EMPLOYERS .............. 673

C.SUPPLEMENTING ACCOMMODATION COSTS FOR EMPLOYEES ...... 678

VI.CONCLUSION ................................................................................ 681

APPENDIX ...................................................................................... 684

2020] ANTICIPATING ACCOMMODATION 623

I. INTRODUCTION

Reasonable accommodation is the panacea for what ails disadvantaged

workers (or so legal scholars have suggested repeatedly over the past decade).1

For workers who have historically fared poorly in the labor market—but for

whom legal protections in the labor market have remained, at best, murky

—multiple scholars have argued that requiring employers to provide such

workers with reasonable accommodation is the ideal solution.2 This idea is

not novel; rather, it is based on the longstanding Americans with Disabilities

Act (“ADA”)3 requirement that employers provide reasonable

accommodations for workers who are substantially limited in a major life

activity, regarded as substantially limited, or who have a record of substantial

limitation.4 The ADA reasonable accommodation model has been in place for

almost three decades in the private sector and even longer in the public

sector, so it has, in theory, endured for ample time to be vetted. Thus,

exporting this model as a solution for pregnant women, working parents,

caregivers, and other disadvantaged workers5 may seem obvious, tested,

manageable—reasonable.

Yet even a brief familiarity with the economics literature on the ADA

leaves reason to be concerned about exporting this legislative model. Labor

1. See, e.g., JESSICA L. ROBERTS & ELIZABETH WEEKS, HEALTHISM: HEALTH STATUS

DISCRIMINATION AND THE LAW 177–208 (2019) (proposing reasonable accommodation for al l

workers with health conditions, regardless of whether these conditions rise to the level of

disability); Joanna L. Grossman, Expanding the Core: Pregnancy Discrimination Law as I t Approaches

Full Term, 52 IDAHO L. REV. 825, 860 (2016) (arguing in favor of the Pregnant Workers Fairness

Act (“PWFA”)); Joni Hersch & Jennifer Bennett Shinall, Something to Talk About: Information

Exchange Under Employment Law, 165 U. PA. L. REV. 49, 54–58 (2016) (arguing for reasonable

accommodation for working mothers and household caretakers); Jessica L. Roberts & Elizabeth

Weeks Leonard, What Is (and Isn’t) Healthism?, 50 GA. L. REV. 833, 895–901 (2016) (making the

initial argument for extending the reasonable accommodation mandate to workers with any

health condition); Michael Ashley Stein et al., Accommodating Every Body, 81 U. CHI. L. REV. 689,

737–39 (2014) (arguing that any worker who could benefit from an employer-provided

reasonable accommodation should be entitled to one); Deborah A. Widiss, The Interaction of the

Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. DAVIS

L. REV. 1423, 1438 (2017) (arguing in favor of PWFA).

2. See sources cited supra note 1.

3. Note that here, and throughout this Article, I use the terms “ADA” and “reasonable

accommodation model” to refer more generally to the workplace protections afforded to

disabled individuals in the private sector under Title I of the ADA, 42 U.S.C. §§ 12101–12117

(2012), and disabled individuals in the public sector under the Rehabilitation Act, 29 U.S.C.

§§ 701–794 (2012). See also 29 U.S.C. § 794(d) (2012) (“The standards used to determine

whether . . . [the Rehabilit ation Act] has been violated in a complaint alleging employment

discrimination under this section shall be the standards applied under title I of the Americans

with Disabilities Act of 1990 . . . .”).

4. See 42 U.S.C. § 12102(1) (defining disability under the ADA as “a physical or mental

impairment that substantially limits one or more major life activities[,] . . . a record of such an

impairment[,] or . . . being regarded as having such an impairment”).

5. See sources cited supra note 1.