Thursday, August 28, 2008

Basas on Reasonable Accommodation and Resistance

Up on SSRN: Carrie Griffin Basas, Back Rooms, Board Rooms -- Reasonable Accommodation and Resistance Under the ADA, 29 Berkeley J. Emp. & Lab. L. 59 (2008). The abstract:

Reasonable accommodations under the Americans with Disabilities Act (ADA) are at the center of the integration of people with disabilities into mainstream work environments. Responses on the part of employers, however, have couched many feasible accommodations as excessive, burdensome, and costly. Employers resist hiring people with disabilities and accommodating existing disabled employees. This position is affirmed by societal and legal messages about the inferiority of disabled workers. Courts have tended to take a pro-employer point of view, deciding that some accommodations are unreasonable without specifically unpacking that concept in relation to the language and spirit of the ADA. Meanwhile, one of the most important parts of the ADA remains largely undefined and employers and courts can take cover behind a vague notion of reasonableness whenever any request seems like too much. While scholars have debated whether or not the ADA goes too far in requiring employers to adapt to the needs of disabled individuals, the latter are cast aside in the reasonable accommodation process by employers, courts, and scholars themselves. As a result of this exclusion, people with disabilities struggle to get even the most basic and achievable accommodations granted, such as those related to transportation and assistance with arriving at work. This Article advocates for the involvement of people with disabilities in the accommodation process, not only from a place of cooperation but also in the form of resistance to subjugation. This participation must happen at all levels for any meaningful change to happen in the American workforce. The realization of it depends not on the generosity of employers, jurists, or scholars, but on people with disabilities' active confrontation of unjust and irrational interpretations of the ADA. Relying on disability studies approaches and a social model of disability, the author places prospective and current workers with disabilities at the center of the reasonable accommodation process. She suggests that those models can go even farther - and be replaced by a resistance model - to recognize and respond to the biases and prejudices about people with disabilities that lead to their marginalization at work and in communities.

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