Silvers on "Misrecognition" and ADA Accommodations

New on Westlaw: Anita Silvers, Protection or Privilege? Reasonable Accommodation, Reverse Discrimination, and the Fair Costs of Repairing Recognition for Disabled People in the Workforce, 8 J. Gender Race. & Just. 561 (2005). From the introduction:

Recent Supreme Court decisions suggest that accommodating disabled workers under the Americans with Disabilities Act (ADA) may impose misrecognition costs on their nondisabled peers. Historically, disabled people have suffered misrecognition through lack of accommodation to their differences. Yet, replacing the misrecognition of disabled people as a group with the misrecognition of individual nondisabled people also is not fair. The possibility that accommodating a disabled employee may withdraw preferment from nondisabled employees could be a defense for an employer sued under Title I of the ADA. By conceptualizing reasonably accommodating disabled workers as a shift of preferment from nondisabled to disabled individuals, the Court not only sets up the disabled for resentment from fellow workers, but also targets for failure the policy of directing employers to respond affirmatively to disabled workers' differences.

This article argues that programs designed to remedy the misrecognition of one group need not discriminate against individuals who are not members of the group. An alternative strategy for dislodging misrecognition exists. Ideas originally developed to address ethnic minorities' rights within the philosophical framework of the politics of recognition provide a framework for differentiating fair from unfair approaches to accommodating disabled people's differences. What is important, from an egalitarian point of view, is determining when differential treatment is privileging and when it is not. What distinguishes fair from unfair remedies, according to this point of view, is whether the remedy redresses bias by sharing recognition among more kinds of people in a more diverse workforce, or instead by shifting recognition from nondisabled to disabled workers. This article argues that the Court's Title VII Civil Rights jurisprudence evokes a similar distinction between sharing and shifting recognition. The distinction between sharing and shifting marks the difference between acceptable and unwarranted affirmative accommodation of minority group differences.

This article extends the distinction between programs that share, and programs that shift, recognition to resolve the dilemmas of resentment and misrecognition costs that an employer otherwise could cite to defend against certain charges of disability discrimination.