Reasonable accommodation of workplace disabilities.

• Jurisdiction: United States
• Author: Schwab, Stewart J.
• Date: 01 February 2003

INTRODUCTION

The Americans with Disabilities Act of 1990 (ADA) (1) differs fundamentally from Title VII. (2) Both prohibit something called "discrimination," but discrimination under the ADA means something quite distinct from what it means under Title VII. Under Title VII and other antidiscrimination statutes, (3) employers can safely make employment decisions if they ignore race and other protected statuses and focus solely on criteria related to productivity. If they ignore race and other protected statuses, employers cannot engage in disparate treatment discrimination. That type of discrimination only occurs if race or another protected status becomes a motivating factor in an employment decision. (4) If employers focus solely on productivity-related criteria in making a decision, they cannot engage in disparate impact discrimination. That type of discrimination only occurs if a disparate impact against a protected group is not justified by concerns related to productivity. (5)

At issue here are the basic models of discrimination. The central thrust of Title VII employs a "sameness" model of discrimination, requiring employers to treat African Americans and women exactly the same as others; (6) their race and sex must be ignored and employers must focus instead on factors related to productivity. Although the ADA uses a sameness model in part, its distinctive thrust is a "difference" model, requiring employers to treat individuals with disabilities differently and more favorably than others. (7) Employers must treat individuals with disabilities as qualified if they "can perform the essential functions" of the job. (8) Employers are free to treat others as qualified only if they can perform all of the functions of the job. Similarly, employers must make "reasonable accommodations" for individuals with disabilities. (9) Sometimes these accommodations may be expensive or require significant alterations in the way a job is structured. Yet neither Title VII nor the ADA require employers to make these accommodations for others. (10)

Our position sharply contrasts that of Professor Jolls, who recently has argued that reasonable accommodation is fundamentally similar to the discrimination models developed under Title VII, especially the disparate impact model. (11) Part of our disagreement turns on how we define important terms like "accommodation," "discrimination," and "disparate impact," (12) but the deeper differences implicate basic conceptions of discrimination and accommodation. Exploring these differences sheds light on the developing understanding of Title VII and the ADA, with important practical consequences. In our view, Professor Jolls aligns the ADA with non-core cases of discrimination under Title VII, which threatens to impair both the growth and the strength of the accommodation model. In contrast, our conception of accommodation, which is not derivative of Title VII, stakes out a strong and independent position for this type of discrimination.

The meaning of reasonable accommodation is the ADA's "great unsettled question," (13) and, along with the definitional question of who counts as disabled (a question we do not address here), one of its two most important ones. The duty of reasonable accommodation is the core of the ADA; it defines the scope of the Act's protections for individuals with disabilities. Determining its meaning is crucially important for courts, which are confused and inconsistent; for individuals with disabilities, who have uncertain protections; for employers, who have unpredictable obligations; and, most importantly, for society as a whole, which seeks to affirm the worth and dignity of individuals with disabilities within the constraints imposed by a well-functioning labor market. (14)

Understanding reasonable accommodation is also important because the concept is likely to extend beyond the ADA into other areas of discrimination law. Our central claim in this Article is that the ADA expands on prior conceptions of discrimination. Under Title VII, as currently understood, the employer defines the job as it wishes; the law merely insists that workers and applicants for those jobs be treated without regard to race or sex. The ADA goes beyond and asks employers to restructure the jobs themselves. We suggest that, over time, this sort of inquiry will spill over into Title VII cases as well and, from there, into general conceptions of discrimination across the entire range of discrimination law. (15)

This Article presents a framework for thinking about the duty of reasonable accommodation. (16) The framework is primarily economic, in that we try to identify the incentives and tradeoffs created by the statute. We recognize that Congress rejected efficiency as the guiding principle for the ADA and that the Act sometimes requires inefficient actions. (17) Nevertheless, Congress did not and could not declare that the Act would not affect incentives, nor did it declare that the Act should not get the most "bang for its buck." Our approach and its emphasis on incentives can help identify the nature of the still uncertain preferences embedded in the ADA and, once they are identified, help specify their reach and limits more precisely. (18)

Part I begins by sketching an informal economic model of how employers choose among workers of varying productivity and costs. We use this model to distinguish two ways in which the ADA interferes with an employer's choice of workers, what we call "soft preferences" and "hard preferences."

Part II explores the justifications for soft preferences. Here, the ADA tracks other antidiscrimination statutes, and so the justifications are similar. As in Title VII's disparate treatment model, the ADA requires employers to favor money profits over any desire to indulge their prejudices against the disabled. Similarly, the ADA follows Title VII in prohibiting facially neutral practices that adversely affect the disabled, unless the employer can show the practice to be job related. The ADA, like Title VII, also prohibits statistical discrimination by employers who act on myths or even true stereotypes about the costs or productivity of the disabled.

The ADA extends beyond the Title VII models, however, by mandating hard preferences as well as soft preferences. The remainder of the Article shows how and why. Part III describes the hard preferences of the ADA and shows why they comprise a distinctive model of discrimination, known as reasonable accommodation. In some circumstances, the ADA requires employers to accommodate individuals with disabilities even though they cost more to employ than others or are able to produce less. In other words, the ADA requires a type of affirmative action to achieve its goal of integrating individuals with disabilities into the labor market as full and productive members.

Part IV examines the scope of the reasonable accommodation requirement. It first looks for statutory clues of meaning. It then examines the procedural and substantive accommodation components. Finally, it offers various ways to define the reach and limits of the accommodation requirement.

The conclusion sums up our findings and explores the factors which make us think that reasonable accommodation, in the long run, will not be confined to the ADA. Instead, we expect the expanded notion of discrimination to become part of Title VII cases as well, and of cases in virtually every other area of discrimination law.

1. MODELING SOFT AND HARD PREFERENCES

   1. The Employer's Choice Between Workers

      Suppose an employer wants to increase its workforce and is deciding among an array of applicants. These applicants differ in many ways, but the employer is primarily interested in two dimensions--compensation and productivity. For example, the employer may be deciding between more productive college graduates and less productive high school graduates. Other employers are also bidding for workers, and the outside wage for college graduates is higher than for high school graduates. In general terms, the employer must decide whether the greater productivity of the college graduates justifies their higher salary, which will depend on whether this employer, relative to other employers, can make better use of college graduates than high school graduates.

      An employer trying to maximize profits will employ the workers who maximize output per dollar of compensation. (19) Assume, for example, that the going rate for high school graduates is $10/hour and at this firm a high school graduate (H[S.sup.1]) could produce twelve widgets each hour, which sell for $1 each. The going rate for college graduates is $15/hour and at this firm a college graduate (C) could produce fifteen widgets each hour. Since the productivity per dollar cost is 1.2 for this high school graduate (12 widgets/$10 wage) and only 1 for college graduates (15/$15), the employer prefers hiring the high school graduate. The extra productivity of college graduates in widget making at this firm is not worth the higher wage they command. On the other hand, if high school graduates could only produce eight widgets at this firm (H[S.sup.2]), their productivity/cost ratio would only be 0.8 (8 widgets/$10 wage). In that case, the employer would prefer college graduates.

      The general principle of this example is that employers will seek the highest ratio of output to costs in making hiring decisions. (20) Employers are not interested in costs or productivity standing alone, but in their relation. Figure 1 depicts the situation. Compared to college graduates at this firm, employers will prefer anyone on a higher productivity/cost line (such as H[S.sup.1]) and reject anyone below the line (such as H[S.sup.2]). None of this is surprising. It is merely a verbal and graphic refinement of the basic intuition that employers prefer employees who cost less and produce more. This simple model, however, illustrates how workers...