Friday, March 15, 2013

Student Note on the Nexus Requirement in Reasonable Accommodation Law

Just out: Note, Three Formulations of the Nexus Requirement in Reasonable Accommodations Law, 126 Harv. L. Rev. 1392 (2013).  From the introduction:
The concept of reasonable accommodation is fundamental to the American disability law regime, yet it has proved as slippery as the concept of disability itself.  Underlying much of the difficulty is disagreement over the appropriate relationship between an accommodation and the disability-related obstacles it is aimed at removing. Just as it is not illegal to discriminate against a member of a protected class for reasons unrelated to her protected status, the Americans with Disabilities Act  (ADA) does not require accommodations that are not related to a person's disability. But this seemingly simple concept has produced a muddled, often self-contradictory body of case law. Disability statutes provide little guidance to the judges who must decide whether a dog is properly understood as a needed therapy animal or a household pet, whether an alternative examination method is an innovative accommodation for dyslexia or a clever way of gaming the test, and whether a request to transfer to a different work setting is genuinely related to the disabling aspects of posttraumatic stress disorder.  This Note seeks to classify the various approaches that courts have brought to the so-called “nexus requirement,” to examine the beliefs about disability that are implicit in these approaches, and to offer some ways in which courts might reconcile those beliefs with the realities of disability. 
A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, residential living, or public life to the same extent as the nondisabled. The range of possible accommodations is in theory limited only by the human imagination: it can include changes to physical environments and time schedules, adjustment of requirements and policies, and provision of assistive devices, just to cite a few examples.  The Supreme Court has held that exceptions to workforce seniority rules are not necessarily off limits, and courts have recently entertained the idea of including commuting-related accommodations as well.  Given this seemingly untethered flexibility, perhaps it was inevitable that courts interpreting disability-rights statutes would search for some principle to limit the costs incurred by businesses, landlords, and governments in complying with disability law.
* * * 
Thus, the lower federal courts have been left largely to their own devices, and many commentators have been unhappy with the results. These scholars have typically treated the nexus requirement as a straightforward binary issue, generally assuming that courts either scrutinize the nexus or do not.  But the existing variety of judicial treatments calls for a more comprehensive, nuanced framework. This Note introduces a tripartite scheme for classifying the ways in which courts have attempted to reconcile statutory nexus requirements with the factual uncertainties inherent in disability. The first, discussed in Part I, requires the requested accommodation to bear a direct causal relationship with the substantial limitation of a major life activity that the plaintiff alleges. The second, discussed in Part II, asks whether the requested accommodation is more logically integrated with the disability or with some other aspect of the plaintiff's circumstances. The third, discussed in Part III, conceptualizes disability broadly and defers to the judgments of individuals on issues related to their own intimate life experiences. Each formulation has merit, yet none can resolve every case in a way that satisfies the diverse interests at stake in the American disability law regime. These categories are interrelated and far from mutually exclusive; courts have applied very different reasoning to different areas of disability law, and some have even shifted their analyses within a single opinion. Nonetheless, the framework may serve to illuminate the complexities of the nexus inquiry, and Part IV discusses the ways in which judges might employ its insights to compensate for the shortcomings of their own understandings of disability.
An interesting discussion of an important issue.  I don't think the first theory -- direct causal relationship with the substantial limitation of the major life activity -- can make any sense after the ADAAA, where for a lot of people the substantial limitation will be something entirely internal to the body (because the relevant major life activity will be a "major bodily function").  Of course, I didn't think the first theory made a lot of sense before!

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