Jamie Leonard on the Ineffectiveness of the ADA

New on Westlaw: James Leonard, The Equity Trap: How Reliance on Traditional Civil Rights Concepts Has Rendered Title I of the ADA Ineffective, 56 Case W. Res. L. Rev. 1 (2005). From the introduction:

Title I has been rendered ineffective because of reliance on traditional civil rights mechanisms. My thesis is that the integrationist goals of Title I are so different from those of traditional civil rights statutes that it was a mistake to use the latter's concepts and mechanisms in the disability setting. To put the matter glibly, Title I has fallen into the equality trap.

The paradigmatic civil rights statute, Title VII of the Civil Rights Act, rests on the assumption that immutable characteristics such as race, gender, or national origin are irrelevant to valid workplace decisions; consideration of such traits is therefore irrational, whether or not tainted with hostile attitudes. With regard to the inalterable traits addressed by Title VII, we are all equal in the sense that membership in a particular group, ideally, should bear no adverse consequences. Disparate treatment claims under Title VII seek to secure our equality interest in being free from racial or gender biases or stereotypes by promoting even-handed treatment. Disparate impact claims, which attempt to eliminate neutral workplace practices with an unjustifiably greater impact on protected classes, are a partial exception to Title VII's view that immutable traits are irrelevant.

The ADA's great innovation is the adoption of an active, integrationist plan in a civil rights context. By traditional standards it is hardly a theory of equality at all. While Title I of the ADA forbids consideration of irrelevant disabilities, its principal tool is the reasonable accommodation requirement. The command that employers alter working environments in favor of persons with disabilities, recognizes that the defining characteristic of the protected class is relevant to the statutory goals. Beneficiaries of the statute can be deemed equal only in an arcane sense, as proposed by the social model of disability, that their exclusion from society has been caused artificially by third-party attitudes. To be effective, moreover, the accommodation mandate must abandon the traditional focus on improper group-directed intentions and concentrate instead on the objective reasonableness of the employer's conduct in denying an individualized benefit to a particular worker. In my view, carryover provisions from the Title VII model that focus on the employer's state of mind interfere significantly with Title I's ability to meet its integrationist goals.

I elaborate this thesis as follows. Part II of this Article analyzes the three concepts of equality found in Title I of the ADA. Two of these concepts, disparate treatment and disparate impact, are borrowed directly from the Civil Rights Act's Title VII. The former forbids personnel actions that are based on active consideration of disability when the disability is irrelevant to job performance. Similar to Title VII, disparate impact under Title I of the ADA prohibits work rules and qualification standards having an exclusionary effect on persons with disabilities that cannot be justified on legitimate business grounds. The accommodations mandate completes the equality trilogy but bears little--if any--relationship to the Title VII rule structure. Title I requires that employers make "reasonable accommodations," that is, alterations of work rules or conditions, in favor of individual workers that permit them to perform their jobs. Given the ADA's focus on achieving integration through positive workplace outcomes, its desire to alter indifferent attitudes towards persons with disabilities, and the fact that manifestations of disability vary among individuals, it is difficult to see how the Act could achieve its integrationist goals without an accommodations rule. Workplace adjustments, nevertheless, are conceptually distinct from both disparate treatment and impact rules since they require individualized redistributions of employer resources or privilege based on status.

In Part III of this Article, I address the question of compatibility of concepts. An optimist would argue that the accommodations mandate serves a supplementary function, creating enhanced opportunities for workers with disabilities when traditional disparate treatment and impact analysis fail to make a difference. I do not share this view. Rather, I perceive that certain fundamental assumptions of the disparate treatment model are so deeply embedded in the structure of the ADA that they interfere with the integrationist agenda represented by the accommodations mandate. Specifically, that the Act's definition of disability (Part III.A) and its procedural approach to hiring decisions (Part III.B) give controlling influence to the disparate treatment model's view that defining traits are irrelevant and should be filtered out of the personnel process. The ironic effect is to exclude persons from the workplace who might benefit from accommodations once hired. Similarly, I argue in Part III.C that an overly idealistic and moralistic view of accommodation costs has left Title I without an effective mechanism to gauge the consequences of costs of employment. I offer concluding remarks in Part IV.