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

• Author: Jamelia N. Morgan
• Position: 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.
• Pages: 191-239

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.