Paralyzing Discord: Workplace Safety, Paternalism, and the Accommodation of Biological Variance in the Americans with Disabilities Act

• Author: Alexandra G. White

I am deeply grateful to Professor William Corbett for his insights and painstaking criticism of earlier drafts of this note. I also benefitted immensely from the guidance of the Louisiana Law Review Volume 63 Board of Editors, particularly, Whitney Elzen, whose counsel and assistance throughout the research and writing process is truly appreciated. Thanks are also due to Professor Paul Baier and Professor Jim Bowers, as well as all of the students in the Fall 2002 Legal Scholarship Seminar at Louisiana State University's Paul M. Hebert Law Center. Finally, I must extend a very special thanks to my loving family for their constant support and encouragement during this endeavor, and for patiently listening to my seemingly endless discourse on the intricacies of the antidiscrimination/ accommodation dichotomy.

An earlier version of this note received an award in the American Bar Association's Mendes Hershman Business Law Writing Competition and the annual Judge John R. Brown Writing Competition. This note was also the recipient of the Vinson & Elkins Best Casenote or Comment Award for Excellence in Legal Writing.

Introduction

Seldom, if ever, have the power and the purposes of legislation been rendered so impotent .... All that is left today are a few scattered remnants of a once grandiose scheme to nationalize the fundamental rights of the individual.¹

Few areas of the law can inspire the fury of popular debate, the breadth of scholarly criticism, the intensity of research, or the multitude of legislative enactments and judicial interpretations to parallel the controversy surrounding the precise meaning of equality and civil rights in the American workplace. The struggle for civil rights, still firmly etched in America's collective consciousness, officially admitted a new member with the passage of the Americans with Disabilities Act² (ADA) in 1990. Its mandate has proven anything but clear. Since its enactment, the contours of the ADA have been subject to continual examination, and the Supreme Court has heard an unusually heavy load of disability rights cases.³ Recent commentators have characterized many interpretations of the ADA as a "backlash" against the statute.⁴ This backlash is attributed to a myriad of different causes, ranging from judicial intolerance of the Act's objectives to media portrayals that misunderstand the underpinnings and scope of the Act.⁵ One commenting Justice attributes the endless judicial examination of the ADA to uncertainties and ambiguities inherent in the statute.⁶ Regardless of its cause, however, one thing is certain: the ADA is producing considerable confusion.

In 2002, the confusion generated by the ADA was more evident than ever before. Justice O'Connor suggested that the Court's 2002 term will likely be remembered as the "Disabilities Act Term"⁷ for the high number of cases dealing with this "landmark civil rights" enactment. The "Disabilities Act Term" included four cases: (1) US Airways, Incorporated v. Barnett⁸ (2) Toyota Motor Manufacturing, Kentucky v. Williams,⁹ (3) Barnes v. Gorman,¹⁰ and (4) Chevron U.S.A. Incorporated v. Echazabal.¹¹

This note uses the last of these cases, Echazabal, to illustrate fundamental flaws inherent in Congress's approach to disability discrimination in the workplace. The Echazabal decision stands for the proposition that an employer is free to exclude a disabled applicant or employee from a position that would place him in certain danger.¹² Using several lenses, including social science, discrimination theory, and history, this piece examines the implications of this unanimous decision, and argues for a modified approach to disability discrimination in the workplace that would incorporate lessons learned in the context of other protected groups.

Part I offers a brief overview of the process leading up to the passage of the ADA and the substantive provisions thereof. Part II discusses the Echazabal decision and the divergent approaches to self-harm taken by the Ninth Circuit Court of Appeals and the United States Supreme Court respectively. Part III(A) examines the implications of this opinion; particularly, the distinction, announced by the Supreme Court, between individualized risk assessments made pursuant to the ADA's direct threat provision, and "paternalistic judgments based on the broad category of gender," which are forbidden in the Title VII context.¹³ This note attributes the Supreme Court's decision in Echazabal to the ADA's confusing combination of paternalistic notions of inherent vulnerabilities with the rhetoric of previous civil rights enactments that purport to grant equality.

Following a discussion of the stubbornly persistent historical paternalism evident in the ADA, part III(B) examines an alternative approach to biological variance that arose during the women's equality movement. During this examination, special attention is devoted to the argument that the ADA and Title VII, which are popularly understood to require accommodation and antidiscrimination respectively, embody profoundly different antidiscrimination models. Building on Professor Jolls's provocative thesis in this regard-which asserts that the categories of antidiscrimination and accommodation are actually overlapping rather than conceptually distinct¹⁴-part IV(A) extends this understanding to propose a revision of the ADA that would incorporate lessons learned from Title VII. Part IV(B) then seeks to explore an alternative argument that questions the propriety of dispensing with the "conventional wisdom" attacked by Professor Jolls. Drawing on arguments recently propounded by Professor Verkerke,¹⁵ this section examines the antidiscrimination/accommodation distinction in light of normative considerations of the proper scope of civil rights law, and concludes that meaningful distinctions between the two categories are possible and consequential. This section extends Professor Verkerke's research further, however, to argue that the true distinction between antidiscrimination and accommodationist provisions relate to principle, and not merely cost. The paper concludes by illustrating the unintended consequences of expansively drafted accommodationist provisions and offers an alternative reform that would align the ADA more closely with "traditional" antidiscrimination mandates.

At the outset, the author concedes that the two revisions proposed in part IV of this note represent opposite and mutually exclusive extremes on the spectrum of potential legislative reforms of the ADA. Hence, they are best understood as an "either/or" proposition: either Congress must provide a clearer, stronger, and more definitive accommodation mandate (and legislatively safeguard the statute from predictable judicial resistance), or Congress must align the ADA more closely with previous, more "traditional," antidiscrimination mandates. Ultimately, the "backlash" against the ADA has all but destroyed the statute as a litigation tool.¹⁶ Given the serious consequences of judicial resistance to core elements of the statute, the unifying central theme of the proposals presented in this note is consistent: major (and potentially extreme) revisions of the ADA are imminently necessary.

I Triumph Or Tragedy?: The History And Making Of The ADAI

A A Most Unlikely Marriage

In the midst of a Republican administration tenaciously pursuing deregulation and limitations on the cost of government, the most unlikely of marriages transpired: a "landmark" in the arena of civil rights legislation received unprecedented bipartisan support in Congress. The Americans with Disabilities Act of 1990,¹⁷ termed the "most sweeping civil rights legislation in a generation,"¹⁸ sailed through Congress by an overwhelming majority and received the active support and cooperation of the Bush Administration.¹⁹Sponsors described the ADA as a "long-overdue 'emancipation proclamation' for the disabled,"²⁰ and proponents held high...