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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.