Disabilities

• Pages: 237-257
• Author: George Rutherglen

237

Chapter 12

DISABILITIES

Two federal statutes prohibit discrimination on the basis of

disability: the Rehabilitation Act of 1973 and the Americans with

Disabilities Act of 1990 (ADA). The principal difference between the

two statutes is in coverage: the Rehabilitation Act applies to the

federal government, federally funded programs, and federal

contractors;

1

the ADA applies to all employers with at least fifteen

employees, except the federal government.

2

Both acts also apply to

activities other than employment, and again, the ADA is broader in

this respect, because it covers all public services and public

accommodations, the latter including public accommodations

operated by private entities.

3

Much of the case law developed under

the earlier of the two statutes, the Rehabilitation Act, also applies to

the ADA with only a few modifications.

Despite the differences in coverage of the two statutes, they have

the same fundamental aim: to increase the opportunities in public

life, and particularly in employment, for disabled individuals. Both

offer a variety of means of achieving this aim and both take the

remedial perspective in a new and surprising direction,

compensating for natural disadvantages in addition to the

consequences of past discrimination.

4

This is accomplished through

the duty of reasonable accommodation, which requires employers to

adjust the requirements of employment to the needs of disabled

individuals, so long as these adjustments can be made without undue

hardship. This duty, although significant as a matter of legal

doctrine, has turned out to be difficult to implement in practice. It

caused the interpretation of the Rehabilitation Act and the ADA to

depend on alternatives to the remedial perspective, drawn from

history and economics, and on analogies to other statutes, such as

Title VII.

In fact, the duty of reasonable accommodation has its doctrinal

source in the duty to accommodate religious practices under Title

1

§§ 501 to 504a, codified as 29 U.S.C. §§ 791 to 794a (2018).

2

§ 101(5), codified as 42 U.S.C. § 12111(5) (2018).

3

§§ 201 et seq., 301 et seq., codified as 42 U.S.C. §§ 12131 et seq., 12181 et seq.

(2018).

4

Some disability advocates an d theorists nevertheless take a different view:

that “disabilities” are simply difference among individuals that, through socially

constructed evaluations, alter the life prospects of individuals with nonstandard

abilities. For an informed discussion of these issues, see Elizabeth Barnes, The

Minority Body: A Theory of Disability (2016); Adam Samaha, What Good Is the Social

Model of Disability, 74 U. Chi. L. Rev. 1251 (2007).

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DISABILITIES

Ch. 12

VII. As discussed earlier,

5

however, constitutional questions under

the religion clauses of the First Amendment have caused the duty of

reasonable accommodation under Title VII to be narrowly

interpreted. No such impediments prevent a broad interpretation of

the duty of reasonable accommodation under the disability statutes.

The absence of constitutional impediments also eliminates the

grounds for claims of reverse discrimination. The Rehabilitation Act

and the ADA can be protective only of individuals with disabilities.

The statutes identify a genuine “protected class” of disabled

individuals who receive special protection. Any classification on this

basis is subject only to constitutional scrutiny for a rational basis in

fact.

6

In protecting individuals with disabilities, the duty of

reasonable accommodation goes beyond those provisions in Title VII

that seek to compensate for natural conditions, such as pregnancy

and childbirth, that create obstacles to the full employment of

women.

7

Such natural conditions are found only temporarily among

individual women, whereas individuals with disabilities, almost by

definition, suffer from more permanent conditions. Purely as a

matter of legal doctrine, the duty of reasonable accommodation offers

substantial assistance to individuals with disabilities in overcoming

traditional barriers to employment.

Yet the duty of reasonable accommodation has not fulfilled its

initial promise, mainly because of decisions that have narrowly

interpreted the coverage provisions of the Rehabilitation Act and the

ADA. These decisions led Congress to pass the Americans with

Disabilities Act Amendments Act (ADAAA)

8

and to greatly expand

the class of individuals who are now covered by both statutes. The

ADAAA mainly reduced the threshold for finding that an individual

has a covered disability. It made it much easier for plaintiffs to make

the preliminary showing of coverage under these statutes, although

it did not significantly reduce their burden in proving discrimination,

either in its direct form or through failure to make a reasonable

accommodation. Thus, even under the ADAAA, plaintiffs still face

the dilemma of proving that they are disabled enough to gain

coverage, but not so disabled that they are disqualified from the job

they seek. The ADAAA alleviated this dilemma by making it easier

for plaintiffs to reach the floor on coverage, but it did not eliminate

5

See Chapter 7.B supra.

6

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442–47 (1985);

New York City Transit Auth. v. Beazer, 440 U.S. 568, 587–94 (1979).

7

See Chapter 6.D supra.

8

Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110–

325, 122 Stat. 3553 (codified in 29 U.S.C. § 705 (2018) and 42 U.S.C. §§ 12101–10

(2018)).