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. I NTRODUCTION 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.” 1 The 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.” 3 Employers 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.” 4 Under 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. 1 42 U.S.C. § 12101(b)(1) (2012). 2 See 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]. 3 42 U.S.C. § 12112(b)(5)(A). 4 Id. 5 42 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 accommodations for individuals with disabilities, Congress signaled its intention to require employers to take affirmative steps towards ensuring the integration of disabled individuals into the workplace, 7 subject 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 depicted as a form of preferential treatment. 9 Other 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 some cases. 11 This Article discusses the debate within the courts regarding the employer’s affirmative obligations under the ADA’s reaso nable 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 6 See Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation , 46 DUKE L.J. 1, 3 (1996). 7 U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). 8 EEOC 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). 9 Stephen 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 passage of the ADA in 1990 and continuing to the present day. Part IV catalogues the various definitions of affirmative 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. 194 CAPITAL UNIVERSITY LAW REVIEW [46:191 II. O RIGINS OF THE A FFIRMATIVE -A CTION A NALOGY To understand the use of the affirmative-action analogy over time, it is imperative to first know its origins. This Part provides an overview of the earliest references to the affirmative-action analogy in first, disability law, and then, reasonable-accommodation cases more specifically. In addition, this Part provides an overview of the legal scholarship animated by the question of whether reasonable accommodation is a type of affirmative action. A. Earliest References by Courts 1. Southeastern Community College v. Davis 13 The earliest reference to affirmative action in disability law is found in the Supreme Court’s opinion in Southeastern Community College v. Davis . 14 Davis sought admission to Southeastern’s nursing program but was denied after Southeastern determined that she did not meet the requirements for the nursing clinical program. 15 Due to her serious hearing disability, Davis relied on lip-reading to comprehend speech, but the college found this insufficient to meet the standards of the clinical program. 16 Southeastern determined that Davis’s disability would prevent her from safely completing the clinical program and hinder her from properly assisting patients as a professional in the field. 17 After being denied admission to Southeastern’s nursing program, Davis brought suit under § 504 of the Rehabilitation Act, which prohibits discrimination in federally-funded programs against otherwise qualified disabled individuals solely on the basis of their disabilities. 18 Ruling in favor of Southeastern, the Supreme Court held that Davis was not a “qualified individual” within the meaning of § 504 and that the college was free to establish reasonable physical qualifications for its program. 19 The Court reasoned that, in 13 442 U.S. 397 (1979). 14 Id. at 411. 15 Id. at 400–02. 16 Id. at 401–02. 17 Id. 18 Id. at 400, 402 (citing Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794(a) (2012)). 19 Id. at 414. 2018] ONE NOT LIKE THE OTHER 195 contrast to § 503(a) of the Rehabilitation Act, which governs federal contractors, entities under § 504 were not required to adopt affirmative action to provide disabled individuals with educational and employment opportunities. 20 Specifically, the Court found that “neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds.” 21 Moreover, the Supreme Court noted in Davis that “the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons” will not always be clear. 22 The Court noted that there will be cases where the refusal to alter admissions standards will have the result of arbitrarily denying opportunities to individuals with disabilities. 23 Furthermore, advances in technology may enable some individuals with disabilities to readily meet the program requirements with the assistance of low-cost technical devices. 24 Accordingly, as the Court opined, “[S]ituations may arise where a refusal to...