THE AMERICANS WITH DISABILITIES ACT'S UNREASONABLE FOCUS ON THE INDIVIDUAL.

• Author: Colker, Ruth

INTRODUCTION 1814 I. The Reasonable Accommodation Concept 1820 A. The Statute 1820 B. The Case Law 1823 C. The Costs 1830 II. Critical Examination of Reasonable Accommodation Requirement 1835 A. Not a "Lottery Ticket" 1835 B. Standardized Testing 1837 III. COVID-19 LESSONS 1841 CONCLUSION 1847 INTRODUCTION

The term "individual" appears throughout the Americans with Disabilities Act ("ADA"). (1) The term "disability" is defined "with respect to an individual." (2) In the employment section of the statute, the nondiscrimination rule forbids a covered entity from discriminating against a qualified "individual" based on disability. (3) The strong emphasis on the individual under the ADA makes it notoriously difficult to bring class action lawsuits, because courts are unlikely to conclude that the numerosity and commonality requirements can be met for class certification. (4)

This emphasis on the individual is particularly problematic under the reasonable accommodation or modification rules under the ADA. (5) Ironically, these rules are often heralded as the statute's most distinctive and progressive innovation, as compared to other civil rights statutes. (6) Because the concept of reasonable accommodation or modification provides an opportunity to provide a benefit to a person that an entity otherwise would not make available to an employee, student, or client, Craig Konnoth argues that this concept should be used in other civil rights statutes or frameworks. (7)

But I will argue that the concept of reasonable accommodation or modification is often not progressive. After a problematic policy or structural feature has been put in place, it requires a disabled person to identify themself as disabled to ask for the problematic feature to be modified or eliminated. (8) Defendants, who put the policy or structure in place, get to avoid that request by arguing it is too expensive. (9) If the plaintiff prevails, it often means that exactly one person has benefitted from a post hoc modification of the environment. While the installation of a permanent ramp or a curb cut is an important structural improvement, (10) those are not the kinds of requests that are typically made by plaintiffs under the ADA at the workplace or in the university setting. (11) Instead, plaintiffs often want modifications to the environment which, if installed universally, would benefit everyone. For example, an ergonomic assessment of workplace conditions in jobs that involve repetitive motions can be sought on an individualized basis as a reasonable accommodation, but if instituted generally, would likely benefit a broad swath of the workplace. (12)

The reasonable accommodation remedy is only available to someone who meets the statutory definition of an individual with a disability. (13) And, even if people meet the statutory definition of being disabled, they can only seek relief for those barriers that they have personally experienced. (14) Thus, people who are deaf but not mobility impaired cannot challenge the lack of a wheelchair-accessible entrance at a restaurant even if that problem means the individual could not invite various friends to join them at the restaurant. In fact, a person who uses a wheelchair cannot even challenge a restaurant's interior inaccessibility if that person did not, in fact, make the futile gesture of seeking to enter the restaurant. (15)

The concept of reasonable accommodation or modification assumes that being disabled is rare, (16) so we can solve it one person at a time. (17) But disability is neither an on--off switch nor rare. (18) We are each at some place on the disability spectrum. (19) Vision (20) and hearing (21) impairments are common and become more likely as individuals age. High blood pressure or hypertension (22) are common features of aging. Our processing speed slows over time. (23) Our memory deteriorates over time. (24) We become more prone to falling as we age. (25) Our joints are likely to experience osteoarthritis. (26) Mental health disorders are common among older adults. (27) Of course, many people are born with some of these characteristics that the ADA calls an "impairment." (28) For some people, these impairments are visible; for others, they are invisible. (29) Some people are not even aware of an impairment that they have, or may be reluctant to embrace that impairment as a "disability." (30) That awareness, in turn, may be affected by other characteristics such as race, economic status, or gender. (31) By making people claim disability status to receive an accommodation, we must assume they are aware of the disability itself, are willing to disclose that disability to others, and have the cultural, political, and economic capital to take advantage of this legal recourse.

If your goal is one of disability justice (32)--hoping to proactively make society a better place for all historically disadvantaged members of society while recognizing that people have intersectional identities and often have limited access to legal resources--then the concept of reasonable accommodation is not progressive. A reactive framework that only goes into effect after one makes an individualized claim of being disabled is not likely to achieve structural reform. In fact, this framework may exacerbate existing structural inequities by allowing the comparatively privileged to become more privileged without attaining structural reform. If we think of disability as a social construct--the construction of steps rather than a ramp renders certain people disabled--then the only way to attain disability justice is to attain structural benefits. It makes no sense to have the ramp only come down from the front door when a person who has somehow registered as disabled seeks to make entry. The ramp should be universally present to make entry possible for all.

The consequences of the reasonable accommodation or modification framework are that legal remedies are rarely structural, and people must endure the adverse consequences of being "out" as a disabled person to avail themselves of these limited benefits. A review of the reasonable accommodation or modification case law (33) reveals how it is a neoliberal policy that is unlikely to achieve disability justice. Instead, as Marta Russell argues, we need government to subsidize disability access. (34) Moreover, we should insist that universal design (35) principles govern all policy decisions (36) so that the concept of reasonable accommodation can become relatively obsolete. (37) Similarly, as Katie Eyer argues, a disability justice perspective requires "transforming social structures, building the environment to be accessible, and securing supportive resources required for full meaningful participation of all people with disabilities." (38) A reactive framework that shifts all the costs onto the private sector, one person at a time, is unlikely to help us move towards disability justice in a capitalistic society in which the judiciary is likely to be sympathetic to the private sector's cost arguments. (39) Reasonable accommodation, as a framework, offers little hope of disability justice.

Part I of this article will survey the statutory language and case law on the reasonable accommodation requirement. Part II will offer a critique of the reasonable accommodation framework, focusing on how that framework could do a better job of creating ex ante solutions. Part III will apply this revised model to COVID-19 policy changes for the benefit of the disability community. Part IV concludes by contrasting the reasonable accommodation approach under Title I of the ADA with Title Ill's more structural approach for buildings and argues that we do not need to resign ourselves to the highly individualized framework of reasonable accommodation. The ADA could become a better tool for structural change.

1. THE REASONABLE ACCOMMODATION CONCEPT

   1. The Statute

      Before engaging in a critique of the reasonable accommodation or modification requirements, (40) it is important to understand what they entail in each of the ADA's three titles. As with all facets of the ADA, one can only take advantage of these rules if one meets the definition of an "individual with a disability." (41) Although there are three ways that plaintiffs can establish that they have a "disability," the reasonable accommodation rule under Title I and the parallel reasonable modification rule under Titles II and III are only available to plaintiffs who meet the "is disabled" (42) or has a "record of disability" (43) standards. Those rules are not available to individuals who meet the "regarded as" definition of disability. (44)

      If one has an impairment that meets the statutory definition of a disability, then one can file a claim of employment discrimination under Title I. The statute lists seven ways that individuals might claim that they have experienced "discrimination... on the basis of disability" under Title I. (45) Only one of the seven forms of discrimination implicates the concept of reasonable accommodation. (46) It is unlawful for an employer not to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability... unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." (47) "Undue hardship" is defined as "an action requiring significant difficulty or expense." (48)

      Title I crafts the reasonable accommodation rule as a post hoc modification that plaintiffs can seek only after disclosing their physical or mental impairments. The physical or mental impairments must be "known," and the employee must make the request for an accommodation.

      Title II provides the rules regarding nondiscrimination for public entities. Its general nondiscrimination rule incorporates the term "qualified individual with a disability." (49) The term...