Cost-benefit analysis without analyzing costs or benefits: Reasonable accommodation, balancing, and stigmatic harms

University of Chicago Law Review

Volumn 74, Issue SPEC. ISS., 2007, Pages 1895-1909

  Sunstein, Cass R ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 38049039311     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (48)

1. A small story: in my first year at The University of Chicago Law School, I was invited to a little dinner party at the house of Frank Easterbrook (not yet a federal judge). The party was dominated by George Stigler, a Nobel Prize winner-to-be and a major figure at the University at the time. Stigler asked me what I taught, and I responded that I taught Social Security and Welfare Law, at which point Stigler began to cast cheerful, contemptuous ridicule on the subject. In Stigler's view, no one in America was poor, because even a little money ($7 a week, if memory serves) could go a very long way. This position seemed to me not only preposterous but also offensive, and I tried to respond; but Stigler was of course Stigler, and in addition to being a terrific debater, he wasn't always a very nice man. Seeing my distress, Posner came to the rescue and made some strong points, against his long-time friend Stigler, on my behalf - less from conviction, I'm sure, than out of kindness and sympathy for a floundering and somewhat humiliated young colleague, whom he barely knew at the time. (I bet that Posner won't remember this, and if he does, I bet he'll deny that it happened just that way. But it did.)
2. Vande Zande v Wisconsin Department of Administration, 44 F3d 538, 542-43 (7th Cir 1995) (construing the ADA's "reasonable accommodation" requirement to entail consideration of the accommodation's cost, given the ADA's stated purpose of reducing employers' productivity losses). The decision has been cited almost 400 times. LEXIS search, Apr 2007. (Posner taught me, among many other things, to pay careful attention to citation counts.)
3. Americans with Disabilities Act of 1990, Pub L No 101-336, 104 Stat 327, codified as amended at 42 USC § 12101 et seq (2000) (defining the failure to make "reasonable accommodations" for disabled individuals, which may include changes to facilities and job restructuring, as one form of discrimination).
4. See Vande Zande v Wisconsin Department of Administration, 44 F3d 538, 543-44 (7th Cir 1995).
5. See id at 545.
6. See id at 544.
7. 44 F3d 538 (7th Cir 1995).
8. 42 USC § 12112(b)(5)(A).
9. 42 USC § 12111(10)(A).
10. 42 USC § 12111(10)(B)(ii)-(iii).
11. See Vande Zande, 44 F3d at 543.
12. See id at 542.
13. See id at 542-43.
14. See US Airways, Inc v Barnett, 535 US 391, 400-01 (2002) (rejecting the view that "reasonable" means "effective" and declaring that "a demand for an effective accommodation could prove unreasonable because of its impact, not on business operations, but on fellow employees").
15. See, for example, Gaul v Lucent Technologies Inc, 134 F3d 576, 580-81 (3d Cir 1998) (characterizing a requested accommodation as unreasonable because it would "impose extraordinary administrative burdens" on the employer); Borkowski v Valley Central School District, 63 F3d 131, 138 (2d Cir 1995) (reasoning that cost-benefit considerations are implicit in the term "reasonable accommodation," as used in regulations pursuant to § 504 of the Rehabilitation Act, a precursor to the ADA).
16. It is a nice question how courts might obtain such information. Perhaps contingent valuation studies might be used. I return to this issue below.
17. See Richard A. Posner, Economic Analysis of Law 50 (Aspen 6th ed 2003) ("If the value of the right is a large fraction of the wealth of either party, where the right ends up may depend on the initial assignment.").
18. See, for example, Russell Korobkin, The Endowment Effect and Legal Analysis, 97 Nw U L Rev 1227, 1256-59, 1262-63 (2003) (describing how the endowment effect complicates the standard economic approach to efficient allocation and redistribution of entitlements).
19. See generally Daniel Kahneman, Jack L. Knetsch, and Richard H. Thaler, Experimental Tests of the Endowment Effect and the Coase Theorem, 98 J Polit Econ 1325 (1990).
20. For an emphasis on the normative priority of welfare to monetized costs and benefits, see Cass R. Sunstein, Willingness to Pay versus Welfare, 1 Harv L & Policy Rev (forthcoming 2007) (questioning the use of WTP to measure welfare);
21. Matthew D. Adler and Eric A. Posner, New Foundations of Cost-Benefit Analysis 63-68 (Harvard 2006) (characterizing overall welfare as a moral criterion, and cost-benefit analysis as a decisionmaking technique that may be useful in maximizing overall welfare).
22. Vande Zande, 44 F3d at 542.
23. Id.
24. Id at 543.
25. Id.
26. Id.
27. Id at 546.
28. Id.
29. Id.
30. Id.
31. Note too that an accessible kitchenette would have created benefits for other people in wheelchairs. On third party benefits and the ADA, see generally Elizabeth F. Emens, Integrating Accommodation (Apr 2007) (unpublished draft, 2007).
32. For a valuable attempt to respond to this problem in the context of environmental, health, and safety agencies, see Matthew D. Adler, Fear Assessment: Cost-Benefit Analysis and the Pricing of Fear and Anxiety, 79 Chi Kent L Rev 977, 985-89 (2004).
33. See 42 USC § 12101(b) (stating that the ADA's purpose is to "provide a clear and comprehensive mandate for the elimination of discrimination against people with disabilities").
34. See generally Emens, Integrating Accommodation (cited in note 29).
35. To be sure, it would be possible to worry over a slippery slope problem. Perhaps individually small accommodations would be expensive in the aggregate. But there was no such problem in Vande Zande.
36. See Vande Zande, 44 F3d at 544.
37. See id.
38. Id at 545.
39. Id.
40. See id.
41. See id at 546.
42. For relevant discussion, see Brian S. Prestes, Disciplining the Americans with Disabilities Act's Direct Threat Defense, 22 Berkeley J Empl & Labor L 409, 418-22 (2001).
43. And perhaps to employees more generally. See generally Emens, Integrating Accommodation (cited in note 29).
44. See Lochner v New York, 198 US 45, 75 (1904) (Holmes dissenting) ("The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."). Of course Kaldor and Hicks were two different economists, not one, but perhaps we can merge them to echo Holmes as faithfully as possible.
45. See Borkowski v Valley Central School District, 63 F3d 131, 142 (2d Cir 1995).
46. See Cass R. Sunstein, Why Markets Don't Stop Discrimination, 8 Soc Phil & Policy 22, 24-29 (1991) (observing that market mechanisms do not eliminate discrimination because, among other reasons, some customers and coworkers prefer that firms discriminate, and firms employ stereotypes to reduce transaction costs).
47. If a firm does in fact organize employees into supervised teams, we might think that the firm values their physical presence. But we do not know if Vande Zande was part of any team, and in any case the employers' practice cannot be conclusive on the question whether a requested accommodation is reasonable.
48. See note 3.