Same struggle, different difference: ADA accommodations as antidiscrimination.

• Author: Stein, Michael Ashley

The Americans with Disabilities Act (ADA) was heralded as an "emancipation proclamation" for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article, challenges this prevalent belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with perceived atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA's transformative agenda.

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.... (1)

[W]oman's physical structure and the performance of maternal functions place her at a disadvantage.... [S]he is not an equal competitor with her brother. (2)

INTRODUCTION I. THE CANONICAL PARADIGM OF DISABILITY DISCRIMINATION A. Defining Employment Discrimination B. The Canonical Paradigm: Dividing "Simple Discrimination" from Redistribution C. The Canonical Paradigm Generally Questioned: When "Simple Discrimination" and (Non-ADA) Accommodation Converge D. The Canonical Paradigm Applied to the ADA: Accommodations are Redistribution II. CHALLENGING WHERE THE CANONICAL PARADIGM DIVIDES "SIMPLE DISCRIMINATION" FROM REDISTRIBUTION A. Underlying Misconceptions About Accommodation Costs 1. The Origin of Accommodation Costs 2. Inherent Inability and Fixed Identity B. The Lessons of History 1. The Inherent Inability of Women 2. The Fixed Identity of African Americans 3. Civil Rights Always Engender Cost C. The Continuum of Perceived Biological Difference 1. Links in the Civil Rights Chain 2. A Unique Civil Rights Chronology 3. Old Stereotypes Die Hard: The Supreme Court III. ADA ACCOMMODATIONS AS ANTIDISCRIMINATION A. An Appropriate Antidiscrimination Remedy 1. Artificial Exclusion 2. Universal Design B. A Reasonable Antidiscrimination Remedy 1. Reasonable Cost 2. Proportionate Cost C. A Properly Allocated Antidiscrimination Remedy 1. Policy Choices 2. Economic Efficiency 3. Prudential Propriety CONCLUSION INTRODUCTION

Modeled after existing civil rights statutes, and passed with great flourish, the Americans with Disabilities Act (ADA) (3) was heralded as an "emancipation proclamation" for people with disabilities. (4) At the heart of the statute, and intended as the most expedient method of bringing about social and economic equality for the disabled, are the ADA's employment provisions. (5) In pertinent part, Title I compels employers to provide reasonable accommodations to "qualified" employees with disabilities. (6) By placing this obligation upon employers, Congress intended to remedy the historical exclusion of disabled workers from the labor market, which it documented during hearings on the ADA. (7) Consequently, when a nearly unanimous Congress passed the statute, it was in large part to "guarantee" workers with disabilities "a level playing field." (8)

Nevertheless, legal scholars analyzing Title I's employment accommodation mandates with approbation, opprobrium, or agnostic indifference assert that those directives distinguish the ADA from other antidiscrimination measures, most notably Title VII of the Civil Rights Act of 1964 (Title VII). (9) Central to this perception, which has become "canonical," (10) is the belief that both economic reality and conceptual theory divide Title I and Title VII into two distinct varieties of regulation. "®eal anti-discrimination law[s]," (11) they aver, remedy the exclusion of similarly situated members of protected categories from workplace opportunity, and so achieve equality for certain historically marginalized groups. (12) In contrast, by affirmatively requiring employers to provide reasonable accommodations to existing or potential workers with disabilities, the ADA does more than simply level an uneven playing field. Compelling employers to accommodate disabled workers, these scholars agree, pushes both the workplace equilibrium and its financial calculus beyond equality, and thus differentiates the ADA from its predecessors. The conception of disability-related accommodations being distinct from Title VII antidiscrimination prohibitions is so pervasive that it has influenced the Supreme Court's ADA jurisprudence. (13)

An important article by Christine Jolls questions this entrenched view by noting that antidiscrimination and accommodation measures are not wholly separate and immiscible. (14) Instead, as Jolls points out, an overlap exists between the two regulatory devices, at least so far as the way in which remedies for disparate impact discrimination can parallel the provision of accommodations. (15) I agree with Jolls that confluence exists, but carry her point much further: ADA-mandated accommodations resemble antidiscrimination remedies not simply due to their comparable results, but because fundamentally they are antidiscrimination remedies. Moreover, because this Article goes beyond iconoclasm and on toward reformation, I argue that ADA-mandated accommodations are an essential normative device for effectuating equality on behalf of people with disabilities. (16)

This Article challenges the prevailing interpretation of the ADA by arguing that the statute is consistent with other antidiscrimination regulations in remedying historical inequities. It supports this assertion by demonstrating that society views physically atypical workers, including women, African Americans, and people with disabilities, along a continuum, adjusting most slowly to those differences with which it is least familiar. (17) During this acclimatization period, various biases and misperceptions are slowly stripped away. For example, assertions once regularly made about women and African Americans, respectively, are now considered unacceptable. Parallel biases and misperceptions persist, however, in unnecessarily excluding people with disabilities from the workplace because they are held out as true and rational beliefs. Instead of viewing disabled workers separately from other biologically atypical employees, I argue throughout this Article on behalf of the position enunciated in the disability rights aphorism: "same struggle, different difference." (18) This Article also illustrates how disability-related accommodation costs remedy historical exclusion of the disabled from mainstream society in an appropriate and reasonable manner. Finally, I argue that ADA accommodations, for economic and prudential reasons, need to operate as antidiscrimination provisions, rather than as tax-and-spend subsidies, to achieve their goal of transforming societal attitudes towards workers with disabilities. (19)

Part I begins by setting forth an ecumenical definition of employment discrimination. Next, it presents the economically flavored canonical paradigm which differentiates "simple discrimination," meaning workplace exclusion remedied by regulations that result in equality, from redistribution, which is seen as an affirmative duty going beyond the norm of equality because it transfers resources from employers to employees. Part I then describes Christine Jolls's questioning of the supposed absolute dichotomy between antidiscrimination regulations and non-ADA accommodation mandates. It concludes by describing how academic commentators have applied the canonical paradigm to ADA accommodations, with the result that the statute is viewed as something other than a "pure" antidiscrimination provision.

Working within the received framework, Part II challenges where the canonical paradigm draws a line between simple discrimination and redistribution as it relates to ADA accommodations. It begins by illustrating a flawed methodological assumption underlying the analysis: the notion that accommodation costs are (internally) engendered due to the inherent lesser capability of the disabled, rather than (externally) caused by socially contingent conditions. Part II then demonstrates how similar estimations were once rolled out in opposition to equality arguments made on behalf of women and African Americans; further, that achieving equality through civil rights provisions always engenders cost because those laws change an entrenched and needlessly exclusionary status quo. Moreover, it argues that the ADA is the most recent measure to empower individuals that mainstream society views as biologically atypical. While those conventions are now considered outdated as relating to employees on the basis of their sex or race, Part II shows how the unique civil rights chronology of the disabled, in combination with enduring misperceptions about the group, persists in influencing the Supreme Court's assessment of workers with disabilities.

Part III argues that ADA-mandated accommodations are fundamental antidiscrimination measures that effectuate no more than equality. In support of this assertion, Part III maintains that...