Integrating accommodation.

Author:Emens, Elizabeth F.

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations--from ramps to ergonomic furniture to telecommuting initiatives--can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of diverse groups of people helps to ameliorate discriminatory attitudes through "contact." But integrating people with disabilities also means integrating accommodations. These accommodations affect and benefit third parties in the workplace and thus shape attitudes toward both disability and the ADA. An understanding of third-party benefits is crucial to designing and disclosing accommodations in ways that will best promote the aims of the statute and the prospects of disabled people.

INTRODUCTION I. IDENTIFYING THIRD-PARTY BENEFITS A. A Basic Spectrum of Third-Party Benefits B. Usage Versus Attitudinal Benefits C. Second- Versus Third-Party Benefits D. Types of Third-Party Usage Benefits E. Why Haven't They Done It Already ? F. Designing Accommodations: A Broader Spectrum of Costs and Benefits II. NEGLECTED BENEFITS A. Overlooking the Benefits B. Why Benefits Are Not Salient III. INTEGRATING ACCOMMODATION A. Desegregating Accommodation B. The Example of Telecommuting C. Tradeoffs and Definitions: The Meaning of Disability and Accommodation IV. DESIGNING INTERVENTIONS TO INTEGRATE ACCOMMODATION A. A Framework: Usage Versus Attitudinal Benefits B. Disclosure C. Reasonableness and Undue Hardship D. Promotion and Publicity E. Implications for Diversity Initiatives V. CONCERNS: INTEREST CONVERGENCE AND DRIFT A. Interest Convergence Versus Coalition Building B. Doctrinal Drift CONCLUSION INTRODUCTION

Consider the following scenario:

At an academic conference, a speaker puts up a diagram on an overhead projector. The image that appears on the screen is exceedingly complicated-with arrows and circles and tiny print--and the audience members squint at it, trying to make some sense of what they see. After a moment, a man in the front row raises his hand, and, apparently requesting an accommodation for his vision impairment, asks the speaker to "please describe the diagram." The rest of the audience sighs in relief at the prospect of having this inscrutable diagram glossed by its creator. This moment captures an oft-overlooked feature of disability accommodations: the simple request for an accommodation by a disabled person often benefits other people. The accommodation of describing the diagram, provided because only one disabled person needs it and requests it, redounds to the benefit of others, both disabled and nondisabled.

This academic scenario points us toward more conventional workplace examples of accommodations that have benefits for third parties. An elevator or a ramp can be used by many people, particularly those on wheels or toting objects on wheels. Ergonomic furniture reduces strain for employees generally. An air-filtering system for an employee with asthma can improve air quality for everyone.

Design matters. An employee whose disability requires her to work from home for periods of time could be accommodated by periodically reassigning her tasks to a coworker, creating added burdens for the coworker. Or, alternatively, her accommodation request could lead her employer to create a broad-based telecommuting initiative that benefits multiple employees who wish to work from home. Likewise, an employee whose psychiatric impairment leads him to request more concrete work assignments and more measured and constructive feedback could consume more of a supervisor's time, to the detriment of other workers. Or the process of designing this employee's accommodation could lead an employer to rethink and improve its supervisory practices more generally. These few examples gesture toward the many ways that accommodations can benefit third parties.

Yet courts and administrative agencies charged with overseeing the implementation of the Americans with Disabilities Act (ADA) have failed even to see these third-party benefits, much less to take them into account. Key decisions about which accommodations are required by law have defined the crucial concepts of "reasonableness" and "undue hardship" in terms of costs and benefits, yet they have neglected the possibility of third-party benefits, even when recognizing third-party costs. The U.S. Equal Employment Opportunity Commission (EEOC), in providing formal guidance to employers trying to understand and comply with the ADA's accommodation requirement, has discussed costs to third parties without making mention of benefits to third parties. Moreover, neither courts nor the EEOC has recognized the significance for third parties of how accommodations are designed.

This oversight obscures a crucial feature of integration--of contact--under the ADA. Much scholarly attention has been paid to the interpersonal effects of integrating diverse groups of individuals through "contact." Though the potency of contact is sometimes overplayed, contact studies do show that working together, side-by-side, on cooperative rather than competitive tasks, can alter attitudes and stereotypes. Contact studies have focused principally on race, but the few studies that have looked at the integration of disabled persons into the workplace have found similar benefits. These discussions of contact have overlooked its unique feature under the ADA: integrating people with disabilities also means integrating accommodations. Those accommodations interact with other people in the workplace in varied ways, yet little attention has been paid to such interactions. And to the extent that accommodations have been understood to have effects on third parties, those effects have typically been seen as costs.

Yet accommodations, while rightly designed to benefit people with disabilities, have more benefits and more kinds of benefits for others than are typically recognized. Accommodations may benefit not only other disabled workers, but nondisabled coworkers, as well as the ever-growing group of the sub-ADA disabled--that is, those individuals who have impairments that are not substantially limiting enough to qualify them for protection under the ADA. (1) One aim of this Article is to rectify this oversight by identifying third-party benefits across a range of accommodations and discussing ways that design and disclosure of accommodations affect the extent of their benefits to third parties.

Accommodations can, of course, impose costs on third parties, as well as conferring benefits on them, as the anecdote about the conference presentation suggests. The request for a description of the diagram helped audience members understand the diagram, but it may also have burdened some audience members who already understood the diagram (if any did) or who simply wanted the talk to move along more quickly (as some surely did). As an empirical matter, it is difficult to know whether the overall benefits of the accommodation outweigh the costs. This Article therefore remains agnostic on the question of whether particular accommodations, or even accommodations in general, are ultimately more beneficial--to people with disabilities or to the overall society--than they are costly. The findings of the ADA embrace multiple goals, including broad integrationist aims as well as efficiency aims, and courts have made clear that the benefits of accommodations need not exceed the costs. (2) Thus, the ADA does not require accommodations to be cost justified, for the employer or for society. Nonetheless, courts have relied on the language of costs and benefits when interpreting the ADA's accommodation requirement, and this Article therefore uses that language to identify a broad swath of considerations that have been previously overlooked in the analysis of accommodations.

The inattention to third-party benefits means they have been undertheorized. This Article thus provides a series of analytic tools to help scholars, policymakers, and employers recognize these benefits and analyze accommodations with such benefits in mind. It distinguishes between benefits that promote the general welfare and those that promote favorable attitudes toward disability and the ADA, emphasizing how the design and disclosure of accommodations can particularly help to promote the latter type. This analytical clarification leads to several proposals for policy and doctrine on accommodation. Administrative agencies charged with facilitating implementation of the ADA should try to encourage employers to recognize and promote these benefits, not simply because they are good for society at large, but because they are good for the success of the ADA and the integration of disabled people into the workplace. The EEOC should therefore revise its guidance on accommodations to encourage thoughtful disclosure of accommodations--subject to employee consent--and to highlight third-party benefits. The Job Accommodation Network (JAN) (3) should encourage employers to think about third-party benefits when designing accommodations. Courts, when using cost-benefit comparisons to decide whether accommodations are reasonable or impose an undue hardship, should also recognize that accommodations can have third-party (and second-party) benefits, as well as first-party benefits and costs and third-party costs. Finally, institutional policymakers should appreciate the possibility of third-party benefits when deciding whether to include disability in their diversity initiatives alongside race and...

To continue reading