ONE NOT LIKE THE OTHER:
AN EXAMINATION OF THE USE OF THE AFFIRMATIVE
ACTION ANALOGY IN REASONABLE
ACCOMMODATION CASES UNDER THE AMERICANS
WITH DISABILITIES ACT
JAMELIA N. MORGAN,
I. INTRODUCTION
In 1990, Congress enacted the Americans with Disabilities Act (ADA),
a statute enacted with the purpose of “provid[ing] a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.”1The ADA was the culmination of
decades of advocacy on behalf of individuals with disabilities and
represented a tremendous achievement for the disability rights movement.2
At the heart of the statute is the reasonable-accommodation mandate,
which requires employers to provide “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee.”3Employers are
required to accommodate reasonable requests “unless such covered entity
can demonstrate that the accommodation would impose an undue hardship
on the operation of the business of such covered entity.”4Under the ADA,
a qualified individual refers to “an individual who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”5
Copyright © 2018, Jamelia N. Morgan.
,B.A., Stanford University, 2006; M.A., Stanford University, 2006; J.D., Yale Law
School, 2013. The author would like to thank Professor Christine Jolls for her thoughtful
feedback on several drafts of this article.
142 U.S.C. § 12101(b)(1) (2012).
2See Arlene B. Mayerson, The History of the Americans with Disabilities Act: A
Movement Perspective,DISABILITY RTS.EDUC.&DEF.FUND (July 1992),
https://dredf.org/news/publications/the-history-of-the-ada/ [https://perma.cc/6U47-FC4B].
342 U.S.C. § 12112(b)(5)(A).
4Id.
542 U.S.C. § 12111(8).
192 CAPITAL UNIVERSITY LAW REVIEW [46:191
While expanding the scope of protections for individuals with
disabilities, the statute also ushered in a new framework for equality—one
that focused on treating individuals differently to ensure their equality.6
By including in the definition of discrimination failure to make reasonable
accommodation s for individual s with disabili ties, Congress si gnaled its
intention to require employers to take affirmative steps towards ensuring
the integration of disabled individuals into the workplace,7subject of
course to the limitation that accommodations be reasonable and not impose
an undue hardship on employers.8
Despite these clear limitations on the scope of the employer’s
particular accommodation duties, some courts have expressed strong
reservations about the precise nature of these duties mandated by the ADA,
particularly when the reasonable accommodation requests are depictedas a
form of preferential treatment.9Other courts have focused in on the
reasonableness of the accommodation request and have emphasized the
affirmative, yet neutral, requirements of the ADA as essential components
ensuring the statute’s effectiveness in integrating disabled individuals into
the workforce.10 Still others have regarded the statutory requirements as
mandating the removal of structural barriers and have acknowledged that
such mandates may indeed require preferential treatment in somecases.11
This Article discusses the debate within the courts regarding the
employer’s affirmative obligati ons under the ADA’s reasonable
accommodation clause by focusing on the use of the affirmative action
analogy. The purpose of this Article is to examine the evolution of the
affirmative-action analogy in reasonable-accommodation case law over
time and to decipher its meaning and relevance. At the onset, it is
6See Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and
Reasonable Accommodation, 46 DUKE L.J. 1, 3 (1996).
7U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002).
8EEOC v. Sara Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001) (“Independently of the
undue hardship provision, an employer is required to make only those accommodations that
are ‘reasonable.’”) (citation omitted).
9Stephen F. Befort, Accommodating an Employee’s Commute to Work Under the ADA:
Reasonable, Preferential, or Both?, 63 DRAKE L. REV. 749, 750–51 (2015).
10 E.g.,Barnett, 535 U.S. at 401.
11 Befort, supra note 9, at 784.
2018] ONE NOT LIKE THE OTHER 193
important to establish a few definitions and assumptions. First, the
affirmative-action analogy refers to cases where courts liken or compare
the plaintiff’s reasonable-accommodation request to affirmative action.
Specifically, the Article examines cases where the term “affirmative
action” explicitly appears in the text of a court opinion where a reasonable-
accommodation claim is at issue in the case. Second, the Article does not
present a stance on whether reasonable accommodation is a type of
affirmative action. Instead, the Article presents an overview of case law
and legal scholarship to support both sides of the debate regarding that
question. Rather than contribute to what is already an extensive debate on
that question, this Article seeks to demonstrate that there are several
different definitions of affirmative action at play in the reasonable-
accommodation case law, and not all uses are based on the preferential-
treatment definition—a focus of much of the commentary on the matter.12
Although these different definitions of affirmative action are present in
court opinions, they are regarded as one monolithic definition, which
confuses the analysis across cases and obscures the actual context of the
reasonable-accommodation request.
This Article is divided into four main parts. Part II describes the
origins of the affirmative-action analogy both in disability case law as well
as cases concerning reasonable accommodations—the focus of this Article.
Part III tracks the frequency in usage of the affirmative-action analogy
over time, starting after the passa ge of the ADA in 1990 and continuing to
the present day. P art IV catalogue s the various defi nitions of affirmat ive
action utilized by courts. Part V attempts to decipher the various meanings
of affirmative action in the reasonable-accommodation case law. In Part
V, the Article demonstrates first, that the use of the affirmative-action
analogy is frequently misplaced and rarely accompanied with sufficient
analysis to justify its use; and second, that the definition of affirmative
action varies across opinions and, as such, limits the analogy’s general
applicability. Ultimately, the Article closes by revealing the debate on
preferential treatment under the ADA’s reasonable-accommodation
requirement as the most plausible explanation for the persistent presence of
the affirmative-action analogy in reasonable-accommodation case law.
12 See id. at 754.