Integrating accommodation

University of Pennsylvania Law Review

Volumn 156, Issue 4, 2008, Pages 839-922

  Emens, Elizabeth F ^a  

^a Columbia Law School ^*

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EID: 44849112674     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (294)

1. Cheryl Anderson has called this group the "'not impaired enough' plaintiffs." Cheryl L. Anderson, "Deserving Disabilities": Why the Definition of Disability Under the Americans with Disabilities Act Should Be Revised To Eliminate the Substantial Limitation Requirement, 65 MO. L. REV. 83, 85 (2000).
2. See infra Part II.A (discussing the courts' interpretation of the reasonableness requirement and undue hardship defense as not requiring that benefits exceed costs); infra note 143 and accompanying text (discussing the multiple purposes, and particularly the integrative purpose, set forth in the statutory findings of the ADA).
3. JAN is part of the Office of Disability Employment Policy of the U.S. Department of Labor. JAN's mission is "to facilitate the employment and retention of workers with disabilities." JAN, What Is JAN?, http://www.jan.wvu.edu/english/whatis.htm (last visited Feb. 15, 2008).
4. FRANK B. GILBRETH, JR. & ERNESTINE GILBRETH CAREY, CHEAPER BY THE DOZEN 126 (1948).
5. See supra text accompanying note 1.
6. Cf. 42 U.S.C. § 12111 (9) (A) (2000) (defining "reasonable accommodation" to include "making existing facilities used by employees readily accessible to and usable by individuals with disabilities"); Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 DUKE L.J. 79, 88 (2003) (describing one category of accommodations as including those that "require[] the alteration or provision of a physical plant, such as ramping a stair to accommodate the needs of an employee who uses a wheelchair" (footnote omitted)).
7. Cf. 42 U.S.C. § 12111(9)(B) (defining "reasonable accommodation" to include "the provision of qualified readers or interpreters"); Nelson v. Thornburgh, 567 F. Supp. 369, 382 (E.D. Pa. 1983) (requiring readers for blind employees), aff'd, 732 F.2d 146 (3d Cir. 1984).
8. Cf. 42 U.S.C. § 12111(9) (B) (defining "reasonable accommodation" to include the "acquisition or modification of equipment or devices").
9. Cf. Stein, supra note 6, at 106-07 (including among the broad social benefits of accommodations "placing people with disabilities in a position to exercise the responsibilities of citizenship, acknowledging that capable individuals have either a 'right' or an imperative to work, permitting the disabled to achieve dignity through labor and productivity, and realizing the values of a diverse society" (footnotes omitted)).
10. See, e.g., Cass R. Sunstein, Why Markets Don't Stop Discrimination, 8 SOC. PHIL. & POL'Y 22, 29-30 (1991);
11. cf. JON ELSTER, SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY 109, 125-33 (1983).
12. Anecdotal reports suggest that some parents prefer their children to be in classes with a disabled child who is assisted by an aide, who can help out in other ways and improve the child-teacher ratio.
13. See, e.g., RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 480-94 (1992).
14. See Stein, supra note 6, at 104 ("One federal agency, for example, found that, on average, for every dollar spent on accommodation, companies saved $50 in net benefits. Thus, although more than one-half of accommodations cost less than $500, in two-thirds of those cases companies enjoyed net benefits exceeding $5000." (footnotes omitted)). For the claim that accommodations may also turn out to be good investments for the employer - by increasing productivity for that worker or other workers, or by attracting new customers - see Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1, 23 (1996) ("The cost of reasonable accommodation may pay for itself in the greater productivity of the disabled worker.");
15. J.H. Verkerke, Is the ADA Efficient?, 50 UCLA L. REV. 903, passim (2003) (arguing that the statutory requirement of reasonable accommodation promotes labor market efficiencies by combating scarring and churning).
16. On the overlooked second-party benefits that would have accrued from giving Barnett the accommodation of keeping his mailroom job, see Seth D. Harris, Re-Thinking the Economics of Discrimination: U.S. Airways v. Barnett, the ADA, and the Application of Internal Labor Market Theory, 89 IOWA L. REV. 123, 178-79 (2003), and infra note 78 (discussing Harris on this point).
17. On the business case for accommodation and integrating disabled people into diversity initiatives more generally, see CHARLES A. RILEY II, DISABIUTY AND BUSINESS: BEST PRACTICES AND STRATEGIES FOR INCLUSION (2006).
18. These fall into the category of the less calculable "ripple effects," identified by Peter Blanck and discussed by Stein, that include "purported higher productivity, greater dedication, and better identification of qualified candidates for promotion"; "employers may also enjoy fewer insurance claims, reduced post-injury rehabilitation costs, [and] an improved corporate culture." Stein, supra note 6, at 105 (footnotes omitted) (discussing PETER DAVID BLANCK, COMMUNICATING THE AMERICANS WITH DISABILITIES ACT: TRANSCENDING COMPLIANCE: A CASE REPORT ON SEARS ROEBUCK AND CO. (1994), available at http://www.annenberg.northwestern.edu/pubs/sears/).
19. However, improved attitudes toward people with disabilities might improve teamwork or morale, and thus increase productivity.
20. Stein, supra note 6, at 106-07.
21. See, e.g., MARTHA MINOW, MAKING ALL THE DIFFERENCE 84-86 (1990) (discussing, for example, the benefits to all students if a classroom teacher were to accommodate a deaf student by teaching all students sign language and teaching in sign and spoken language at the same time);
22. Jerry L. Mashaw, Against First Principles, 31 SAN DIEGO L. REV. 211, 223-24 (1994) (noting spillover benefits in public transportation systems, factories, and sidewalk-street interfaces); Stein, supra note 6, at 104-08 (discussing second- and third-party benefits, as explained supra notes 13-16); see also infra notes 26, 74 (discussing important work by Peter Blanck and colleagues on second-and third-party benefits).
23. Douglas Leslie asserts that in a small survey he found only one case in which an accommodation could have benefited multiple employees, but his example - a challenge to an employer's refusal to hire employees who failed a nerve conduction test - does not come from a failure to accommodate case. Douglas L. Leslie, Accommodating the Employment Disabled, 17 LAB. LAW. 143, 151 (2001). Leslie rejects as irrelevant to accommodation analysis the potential third-party benefits to future employees with the same disability, such as future asthma sufferers after an employer grants one accommodation to an asthma sufferer, without considering the relevance of the doctrinal focus on cost-benefit balancing. Id. at 151 n.13.
24. Cf. Penny v. UPS, 128 F.3d 408, 415-17 (6th Cir. 1997) (discussing an employee's request for, inter alia, new equipment to help delivery of heavy packages despite a back impairment, and ultimately dismissing the claim on the basis that his back impairment was not substantially limiting enough).
25. Cf. EEOC, EEOC NOTICE NO. 915.002, ENFORCEMENT GUIDANCE ON THE AMERICANS WITH DISABILITIES ACT AND PSYCHIATRIC D ISABILITIES (1997) [hereinafter EEOC, ENFORCEMENT GUIDANCE ON PSYCHIATRIC DISABILITIES], available at http://www.eeoc.gov/policy/docs/psych.html ("[R]oom dividers, partitions, or other sound-proofing or visual barriers between workspaces may accommodate individuals who have disability-related limitations in concentration.");
26. cf. also JAN, Accommodation Examples: Psychiatric Impairments, http://www.jan.wvu.edu/soar/psych/psychex.html (last visited Feb. 15, 2008) (discussing other accommodations for concentration difficulties caused by psychiatric disabilities, such as quiet time away from other tasks to work toward goals uninterrupted, headphones to listen to music for relaxation during some tasks, weekly goal meetings with supervisors that are recorded for later review and recall, and a more flexible schedule to make time for counseling and exercise).
27. Cf. Webb v. Clyde L. Choate Mental Health & Dev. Ctr., 230 F.3d 991, 994, 998-99 (7th Cir. 2000) (discussing requests by an asthmatic employee for, inter alia, a ventilated office and prior notice of use of chemicals, and ultimately dismissing the case on the basis that, inter alia, the plaintiff is not substantially limited in the major life activity of working); Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 207, 209 (E.D.N.Y. 1997) (declining to award summary judgment to an employer, on the grounds of lack of disability or insufficient evidence of a hostile work environment, in a case involving an asthmatic plaintiff who had been promised a smoke-free work environment). By contrast, in a move that is relevant to the upcoming Section on designing accommodations, an accommodation that involves merely transferring the asthmatic employee to another work space with less allergens may create third-party costs by requiring another coworker to work in the more allergenic space. Cf. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634-35 (6th Cir. 1998) (discussing an employee's request for a transfer to an allergen-free work area and rejecting this request as too vague to be reasonable or as unavailable). Also, of course, a no-smoking rule may be a health benefit to all, but it is nonetheless a hedonic cost to those who wish to smoke, as the allegedly harassing comments in the Hendler case reflect. See 963 F. Supp. at 202.
28. See, e.g., RILEY, supra note 13, at 82. Riley notes that "one-fourth of all disabilities are incurred by those who are sixty-five and older." Id. Riley is not specifically referring to the ADA's narrow definition of disability (as interpreted by the courts), so surely many older folks are also among the sub-ADA disabled. They may constitute an even greater fraction of the sub-ADA group, to the extent that many of their disabilities develop gradually with age.
29. According to Beth Loy and John Greer, Ergonomics is the science of fitting jobs to people. The discipline encompasses a body of knowledge about physical abilities and limitations as well as other human characteristics that are relevant to job design. Essentially, ergonomics is the relationship between the worker and the job and focuses on the design of work areas to enhance job performance. Ergonomics can help prevent injuries and limit secondary injuries as well as accommodate individuals with various disabilities, including those with musculoskeletal disorders . . . . Beth Loy & John Greer, JAN, Ergonomics in the Workplace: A Resource Guide, http://www.jan.wvu.edu/ media/ergo.html (last visited Feb. 15, 2008).
30. See 534 U.S. 184, 202-03 (2002) (reversing the lower court decision that the plaintiff's carpal tunnel syndrome was a disability and remanding for a reevaluation of the facts under a standard requiring that her impairment substantially limit her in tasks that are of central importance to most people's daily lives).
31. Interview with Lauren B. Gates, Senior Research Scientist & Research Dir., Ctr. for Soc. Pol'y & Practice in the Workplace, Columbia Univ. Sch. of Soc. Work, in N.Y., N.Y. (Nov. 21, 2006).
32. See infra Part I.F (discussing how the design of accommodations can affect the extent of third-party benefits as opposed to costs).
33. See, e.g., Interview with Lauren B. Gates, supra note 24; see also Susan Sturm & Howard Gadlin, Conflict Resolution and Systemic Change, 2007 J. DISP. RESOL. 1, 22-27 (discussing, in an empirical study of the work of the Ombudsman's Office at the NIH, systemic interventions in response to individual conflicts surrounding mental illness).
34. On improved interactions with coworkers and other indirect benefits of accommodations, see Helen A. Schartz, D.J. Hendricks & Peter Blanck, Workplace Accommodations: Evidence Based Outcomes, 27 WORK 345 (2006), who find the following: The most frequently reported indirect benefits were improved interactions with co-workers (69.3%), increased overall company morale (60.7%), and increased overall company productivity (57.0%). Other reported indirect benefits included improved interactions with customers (42%), increased workplace safety (42.3%), and increased overall company attendance (36.0%). Increased profitability was reported by more than a quarter of the respondents (29.4%). Increased customer base (15.5%) and other indirect benefits (9.0%) were reported.
35. Id. at 349. See also Helen A. Schartz et al., Workplace Accommodations: Empirical Study of Current Employees, 75 MISS. L.J. 917, 943 (2006) (concluding from an empirical study that although most accommodation costs are low, the resultant benefits are relatively high).
36. See, e.g., Harlan Hahn, New Trends in Disability Studies: Implications for Educational Policy, in INCLUSION AND SCHOOL REFORM: TRANSFORMING AMERICA'S CLASSROOMS 315, 327 (Dorothy Kerzner Lipsky & Alan Gartner eds., 1997) ("Many young people with disabilities have displayed capacities to respond successfully to unusually difficult challenges that are similar to the traits educators have increasingly identified as the hallmark of students who are perceived as especially talented or gifted. People with disabilities also may acquire unusual adaptation skills as a result of their continuous efforts to cope with an inhospitable environment.").
37. See, e.g., Schartz, Hendricks & Blanck, supra note 26, at 349 ("The vast majority of employers reported that the accommodation allowed the company to retain (87.1%), hire (16.7%), or promote (11.5%) a qualified or valued employee. Almost three-quarters (73.8%) reported that the accommodation increased the affected employee's productivity. More than half (55.4%) reported that the accommodation eliminated the cost of training a new employee. More than half (50.5%) reported it increased the accommodated employee's attendance. Other common direct benefits reported include saving on workers' compensation and other insurance (41.8%), and increased diversity of the company (43.8%)."); Stein, supra note 6, at 104-05 (discussing research indicating that "the provision of accommodations [is] often profitable for employers"); see also Verkerke, supra note 13, at 935 (contemplating the conditions where the ADA's accommodation requirements may help to avoid the costs associated with churning and scarring).
38. See, e.g., RILEY, supra note 13, at 126 (quoting a publicist for Sears on the "element of loyalty" drat can be created by accommodating new or existing employees); see also supra note 28 (quoting relevant findings by Schartz, Hendricks & Blanck).
39. See generally supra note 28 and accompanying text.
40. See, e.g., RILEY, supra note 13, at 81; Eric A. Taub, The Blind Leading the Sighted, N.Y. TIMES, Oct. 28, 1999, at G1.
41. For an entertaining example, see A Small, Belated Step for Grammarians, N.Y. TIMES, Oct. 3, 2006, at A19, which recounts how a computer programmer found evidence that Neil Armstrong said "one small step for a man" rather than "one small step for man," resolving a longstanding dispute, by using software designed to allow people with certain disabilities to communicate through computers using nerve impulses.
42. See Stephen Jay Gould & Elisabeth S. Vrba, Exaptation - A Missing Term in the Science of Form, 8 PALEOBIOLOGY 4, 6 (1982).
43. Id. at 8.
44. Like the example in the Introduction, closed captioning is another accommodation that may be useful to many audience members at conferences and in other learning environments. Only a fraction of people learn well aurally; others learn better in other ways, such as visually. On this basis, one author has argued that disability accommodations in law school classrooms - which sometimes involve professors changing their teaching methods - can benefit many students. Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities: Law Students with Disabilities, Nontraditional Learners, and the Law Teacher as a Learner, 6 NEV. L.J. 116, 146-55 (2005).
45. Thanks to Ben Liebman for this point.
46. See, e.g., MONTA Z. BRIANT, BABY SIGN LANGUAGE BASICS (2004);
47. JOSEPH GARCIA, SIGN WITH YOUR BABY 18 (1999).
48. See, e.g., Patricia Silver, Andrew Bourke & K.C. Strehorn, Universal Instructional Design in Higher Education: An Approach for Inclusion, EQUITY & EXCELLENCE IN EDUC., Sept. 1998, at 47, 49 (describing the views of UID held by university professors, admittedly UID-friendly enough to be involved in this pilot study, who thought that "their diverse teaching methods may benefit all students" and that "they have been informed of the diverse learning styles by the presentation of diverse learners in their classes (e.g., students with learning disabilities)"); see also Jolly-Ryan, supra note 34 (discussing Jolly-Ryan's work urging law professors to improve their teaching methods for all students by accommodating disabled students). Exciting work in a similar vein is the effort, spearheaded by Martha Minow, to forge the legal and technological innovations necessary to produce textbooks and other curricular materials in a format that is accessible to children with a wide range of disabilities.
49. For a description of this effort, see Emily Newburger, Book Smart, HARV. L. BULL., Summer 2004, available at http://www.law.harvard.edu/alumni/bulletin/2004/summer/feature_5-1.php.
50. See also CAST Universal Design for Learning, National Center on Accessing the General Curriculum (NCAC), http://www.cast.org/policy/ncac/index. html (last visited Feb. 15, 2008) (describing the NCAC, which seeks to "create practical approaches for improved access to the general curriculum by students with disabilities").
51. See The Center for Universal Design, About UD: Universal Design Principles, http://www.design.ncsu.edu/cud/about_ud/udprincipleshtmlformat.html (last visited Feb. 15, 2008) (defining Universal Design as "the design of products and environments to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design," and setting out seven principles for Universal Design: "equitable use"; "flexibility in use"; "simple and intuitive"; "perceptible information"; "tolerance for error"; "low physical effort"; and "size and space for approach and use");
52. see also Ronald L. Mace, Founder, Ctr. for Universal Design, A Perspective on Universal Design, Presentation at Hofstra University for Designing for the 21st Century: An International Conference on Universal Design (excerpt from remarks given June 19, 1998), available at http://www.design.ncsu.edu/cud/about_us/usronmacespeech.htm ("I have never seen a building or facility I would say is universally usable. I don't know that it's possible to create one. . . . It's not that there's a weakness in the term. We use that term because it's the most descriptive of what the goal is, something people can live with and afford.").
53. See Dorothy Kerzner Lipsky & Alan Gartner, The Third Wave of School Reform, in INCLUSION AND SCHOOL REFORM, supra note 27, at 235, 235-41; see also Personal Communication with Shael Polakow-Suransky, Chief Academic Officer, Empowerment Sch., N.Y. City Dep't of Educ, in N.Y., N.Y. (Oct. 17, 2006).
54. It is difficult to determine precisely which types of accommodation for psychiatric disabilities are most common, since, as others have noted, there is no consistent mode of categorization of accommodations for psychiatric disabilities, making it difficult to compare studies of these accommodations to one another. See Kim L. MacDonald-Wilson et al., An Investigation of Reasonable Workplace Accommodations for People with Psychiatric Disabilities: Quantitative Findings from a Multi-Site Study, 38 COMMUNITY MENTAL HEALTH J. 35, 36 (2002). But it seems fair to say that accommodations for people with mental illness more often involve changes to policies or practices. Cf. 42 U.S.C. § 12111(9) (B) (2000) (defining "reasonable accommodation" as including "job restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . appropriate adjustment or modifications of examinations, training materials or policies, . . . and other similar accommodations for individuals with disabilities"); Stein, supra note 6, at 88 (noting that "[r]easonable accommodations" can involve not only the physical alteration of the workplace, but also "the alteration of the way in which a job is performed"). For instance, three representative accommodations requested for psychiatric disabilities are (1) modifying an employee's schedule - e.g., allowing an employee to leave one hour early one day a week for therapy; (2) changing supervisory practices - e.g., allowing a job coach to participate in meetings with supervisors, or modifying how a supervisor gives criticism or assignments; and (3) changing where or how an employee works - e.g., allowing an employee to telecommute.
55. See supra note 26 and accompanying text (discussing relevant findings by Sturm and Gadlin, among others); see also infra Part IV.B (discussing Gates's work on this topic in more detail).
56. See SIMI LINTON, MY BODY POLITIC: A MEMOIR 221 (2006) (noting that "hands-on" art has been a recent movement and has encouraged the view that physical engagement with art "results in enhanced learning");
57. see also Nick Paumgarten, Do Not Touch, NEW YORKER, Nov. 27, 2006, at 90 (describing how visually-impaired museum visitors are occasionally encouraged to touch the art, which enhances their experience). Even more controversially, as Linton notes, in 2000 a Pussycat Club in East Sussex, England, requested a variance from its no-touching policy to permit blind patrons to touch the dancers. The dancers themselves were involved in the proposal, as the owner of the club explained in his letter to the council seeking the variance: I have conducted a "straw poll," and eleven of the fifteen dancers consulted would possibly agree to controlled touching in special circumstances. The consensus among the eleven was that any touching should be voluntary, restricted to the breasts, and should occur only when the dancer is wearing a bra (i.e., not topless). Furthermore, it would be acceptable only where the dancer had full control, and the proposal is that she would take one hand/arm of the blind customer and place it on her breast(s), whilst dancing, for an agreed time.
58. Letter from Kenneth McGrath, Dancer in the Dark, HARPER'S MAG., Oct. 1, 2001, at 19, 22. To some, a reconsideration of no-touch policies in museums, or in strip clubs, may be a cost - threatening whatever those rules were meant to protect - while for others this rethinking may be an instance of disability creating welcome pressure to reconsider path-dependent practices that may or may not be well justified. As Linton puts the latter view, "Maybe, though, blind people are forcing the rest of us to reconsider the social conventions and rules that govern breast touching, bronze and otherwise." LINTON, supra, at 218.
59. See Stein, supra note 6, at 105-06 (citing BLANCK, supra note 14).
60. See infra Part III.B.
61. See RUTH O'BRIEN, BODIES IN REVOLT 2, 135 (2005) (arguing that the ADA's employment provisions "create a model for interjecting a notion of workplace need that is based on our individuality").
62. In addition, there may be greater up-front costs in a systemwide change.
63. See, e.g., Gary Blasi & John T. Jost, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, 94 CAL. L. REV. 1119, 1119 (2006) (discussing, as the focus of "system justification theory," "the motive to defend and justify the social status quo, even among those who are seemingly most disadvantaged by it");
64. Russell Korobkin, The Endowment Effect and Legal Analysis, 97 NW. U. L. REV. 1227, 1228-29 (2003) (explaining "status quo bias" as the tendency of "individuals . . . to prefer the present state of the world to alternative states, all other things being equal");
65. Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 WASH. & LEE L. REV. 3, 19-21 (2005) (using "system justification theory" to explain the "workplace essentialism" that prompts courts to treat the status quo in the workplace - especially the "full-time face-time norm" - as essential and thus impervious to ADA and Title VII claims that would involve considering alternative ways to do the same jobs).
66. Martha Minow, The Supreme Court, 1986 Term - Foreword: Justice Engendered, 101 HARV. L. REV. 10, 55 (1987).
67. See, e.g., Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decision-making, and Accountability in the Administrative State, 56 DUKE L.J. 377, 417-20 (2006).
68. See generally Diane Vaughan, The Dark Side of Organizations: Mistake, Misconduct, and Disaster, 25 ANN. REV. SOC. 271 (1999).
69. See Bamberger, supra note 49, at 420-23.
70. John J. Donohue III, Commentary, Opting for the British Rule, or If Posner and Shavell Can't Remember the Coase Theorem, Who Wilt?, 104 HARV. L. REV. 1093, 1115 (1991).
71. For some examples of where markets fail to produce benefits that would be internalized in the environmental context, see generally RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (forthcoming 2008).
72. See also infra Part I.F (discussing curb cuts as an example from the public accommodations context).
73. Many people have made the point about curb cuts, including, for example, Mashaw, supra note 17, at 223-24. On the other hand, curb cuts may create costs for people with vision impairments, who cannot feel where the curb ends (though ridges can help with this); they may also invite the nuisance of cyclists cycling on sidewalks (though the curb cuts are surely a boon to the cyclists).
74. Mary Anne Case, How High the Apple Pie? A Few Troubling Questions About Where, Why, and How the Burden of Care for Children Should Be Shifted, 76 CHI.-KENT L. REV. 1753, 1770 (2001) (footnote omitted)
75. (quoting Joan C. Tronto, Who Cares? Public and Private Caring and the Rethinking of Citizenship, in WOMEN AND WELFARE: THEORY AND PRACTICE IN THE UNITED STATES AND EUROPE 65
76. (Nancy J. Hirschmann & Ulrike Liebert eds., 2001), and Sylvia Ann Hewlett & Cornel West, Caring for Crib Lizards, AM. PROSPECT, Jan. 1-15, 2001, at 17, 19).
77. Id.
78. For an interesting discussion of reports on how the broader public informally enforces the rules restricting designated parking spaces to people with disabilities, see Geoffrey P. Miller, Norm Enforcement in the Public Sphere: The Case of Handicapped Parking, 71 GEO. WASH. L. REV. 895 (2003).
79. See J. Bichard, J. Hanson & C. Greed, Away from Home (Public) Toilet Design: Identifying User Wants, Needs and Aspirations, in DESIGNING ACCESSIBLE TECHNOLOGY 227 (John Clarkson et al. eds., 2006) (discussing debates in Britain surrounding the use of disabled restrooms by nondisabled people); VivaCity2020 Publications, http://www.vivacity2020.eu/publications/ (last visited Feb. 15, 2008) (providing "Toilet Paper Newsletters" discussing the same); see also infra note 216 and accompanying text (quoting a British wheelchair user's complaint on the subject).
80. All Things Considered: The Ethicist: When Imperatives Collide: Handicap Bathrooms (NPR radio broadcast Jan. 22, 2006), available at http://www.npr.org/templates/story/story.php?storyId=5167453.
81. A caller to The Ethicist indicated that she would ordinarily never "use the handicapped stall," and would instead "wait for one of the regular stalls," but on one occasion she was in a big hurry, the "regular" restroom was overcrowded, and she didn't see "any handicapped people or any families," so she used the "handicapped- slash-family restroom" in the hall. Id. Cohen then draws a contrast to parking spaces, which drivers leave for a long or unknown amount of time, and which are legally designated as exclusively for the use of people with disabilities. Id. With a bathroom stall, "no one is explicitly forbidden to use it," and "even if you are a person that uses a wheelchair, you can often wait a moment or two." He therefore concludes that "if you actually see a handicapped person, then you should defer to them" because "you've got multiple stalls or multiple restrooms, but they've just got one," but "unless you actually see someone in a wheelchair waiting to use it," then you can use any stall. Id. Interestingly, in a follow-up program, the one letter they chose to read considered the subject too trivial to be an ethical dilemma: "I know you were being humorous with your discussion of tihe use of the family bathroom and public restrooms as urgent, but shouldn't The Ethicist be addressing much more ethically urgent issues?" All Things Considered: Letters: Job Safety, Washroom Ethics (NPR radio broadcast Feb. 4, 2006) (relating a letter from Joan Mittendorf), available at http://www.npr.org/templates/ story/story.php?storyId=5189915.
82. This norm was, for instance, agreed upon both by the questioner and by Cohen in the episode of The Ethicist referred to above. See supra notes 59-60.
83. See infra Part III.C.
84. For cases discussing some of these options, see, for example, Mays v. Principi, 301 F.3d 866, 868 (7th Cir. 2002) (accommodating a nurse's back injury by reassigning her to positions (first the temporary position of light-duty nurse and then to a clerical position) where no heavy lifting is required); Deane v. Pocono Med. Ctr., 142 F.3d 138, 141 (3d Cir. 1998) (discussing a nurse's request for light-duty work to accommodate a cartilage tear in her wrist); Penny v. UPS, 128 F.3d 408, 410 (6th Cir. 1997) (involving a UPS employee who requested, as accommodations for back and shoulder injuries, a shorter route with fewer boxes to deliver, a truck with power steering, and "rollers and 'two wheelers,'" described as "aids" to help "handle heavy packages").
85. See supra note 182 and accompanying text (discussing relevant agency guidance on third-party costs and undue hardship). Compare Deane, 142 F.3d at 147-48 (concluding that lifting is not an essential function of a nurse's job), with Mays, 301 F.3d at 869, 871 (concluding that lifting more than ten pounds is an essential function of a nurse's job, and noting, in dicta, that being able to lift more than ten pounds is probably not a major life activity).
86. See supra note 22 (discussing how ergonomics not only accommodates individuals with disabilities, but also helps prevent primary and secondary injuries).
87. See supra note 28 (quoting relevant findings by Schartz, Hendricks & Blanck).
88. See supra Part I.A (discussing the terms generalizability and durability).
89. See supra note 38 and accompanying text (explaining Universal Design); see also Mace, supra note 38 ("Universal design broadly defines the user. . . . Its focus is not specifically on people with disabilities, but all people." (emphasis omitted)).
90. Indeed, permitting or inviting nondisabled people to use apparently zero-sum accommodations in a limited way might even create cachet or desire in place of stigma. Exclusive or limited access to something can make people want to join it; one might think here of exclusive clubs or roped-off VIP sections. Ruth Colker, in criticizing Kelman and Lester for assuming that separate classrooms for disabled students must be stigmatizing, tells a story that might suggest some of the kinds of accommodations that could create these effects. She describes a special education classroom called the "Teddy Bear" room, which a few nondisabled students were routinely invited to join, and which the select nondisabled students volunteered to join, presumably because of its name and atmosphere. Ruth Colker, Anti-Subordination Above All: A Disability Perspective, 82 NOTRE DAME L. REV. 1415, 1462 n.264 (2007) (discussing MARK KELMAN & GILLIAN LESTER, JUMPING THE QUEUE: AN INQUIRY INTO THE LEGAL TREATMENT OF STUDENTS WITH LEARNING DISABILITIES (1997)). Colker, however, does not see the "Teddy Bear" room as having positive effects on attitudes toward disability since the students were unaware that the room had anything to do with disability. Id. at 1463 n.264. But if the disability connection were known, then perhaps something like the "Teddy Bear" room (i.e., with its intensive resources and appealing connotations) could help to create positive attitudes toward disability.
91. 44 F.3d 538, 542-43 (7th Cir. 1995) (emphasis added).
92. See, e.g., Alexander v. Choate, 469 U.S. 287, 295 (1985) ("Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of dioughtlessness and indifference - of benign neglect.").
93. 63 F.3d 131, 140 (2d Cir. 1995).
94. 42 U.S.C. § 12112(b) (5) (A) (2000). The employment tide of the ADA prohibits "discriminat[ing] against a qualified individual with a disability because of the disability of such individual." Id. § 12112(a). The definition of disability under the statute is as follows: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Id. § 12102(2). To fail to accommodate a disability is to "discriminate," under the fifth prong of the statutory definition ofthat term: [T]he term " discriminate" includes . . . not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the
95. Blanck's early work on accommodations at Sears from 1978 to 1997 indicated that most accommodations (72%) cost nothing, and that average accommodation costs ranged from $45 to $121. Peter David Blanck, The Economics of the Employment Provisions of the Americans with Disabilities Act: Part I - Workplace Accommodations, 46 DEPAUL L. REV. 877, 902 & n.122 (1997). As Michael Stein notes, these results probably did not adequately reflect the potential costs of all accommodations, since they do not include "soft" costs, nor do they include the costs of accommodations that were not granted (which may have been especially costly). Stein, supra note 6, at 108-09. More recently, Blanck, Helen Schartz, and D.J. Hendricks have done further work interviewing the varied employers who contact JAN to seek advice about accommodations. They have found that the employers deem nearly half (49.4%) of the accommodations to have no direct costs, and employers estimate that most (74.1%) cost less than $500 in the first year. Schartz, Hendricks & Blanck, supra note 26, at 348.
96. See, e.g., Kevin Schartz et al., Employment of Persons with Disabilities in Information Technology Jobs: A Literature Review for "IT Works," 20 BEHAV. SCI. & L. 637, 645 (2002) (reporting on studies suggesting that employer concerns about the cost of accommodations are a barrier to employment for disabled people).
97. See Schartz, Hendricks & Blanck, supra note 26, at 350. The authors report that, for those employers for whom net calendar-year effect could be calculated, the mean benefit was $11,335 and the median $1000. The net effect was positive for more than half of this group (59.8%); a wash for just over one-fifth (21.8%); and negative for just under one-fifth (18.4%). The authors do not report whether these results are significant. Id.
98. See id. at 348 ("In almost half of the cases . . . employers reported that there was zero direct cost associated with the accommodation.").
99. See infra notes 80-112 and accompanying text (discussing key cases). Seth Harris has rightly noted the emphasis on costs in Barnett, before going on to show the potential first- and second-party benefits of accommodating in that case. See Harris, supra note 13, at 178-79 (observing that in Barnett Justice Breyer neglects to discuss "the costs of failing to accommodate" Barnett, such as the benefits to the employer as well as Barnett of accommodation (emphasis added)). Harris further notes that reading Barnett's silence to suggest that the benefits of an accommodation are not relevant would amount to treating Robert Barnett and, by extension, all workers with disabilities as costs to be avoided rather than economic contributors to be valued. The desire to change this stereotype was an important motivation when Congress enacted the ADA. Id. As Harris points out, broader benefits were imagined by the statute's supporters in Congress: The ADA is a major step in the elimination of the barriers that limit full participation. Indeed, elimination of barriers is not always without cost to businesses. But, it is a cost that I believe that should be incurred, considering the benefit to those with disabilities, the benefit to business, and the benefit to our entire society. 135 CONG. REC. S11,718 (1989) (statement of Sen. Harkin), quoted in Harris, supra note 13, at 178. Michael Stein and Peter Blanck also discuss forms of third-party benefits that will not be completely internalized by employers. See supra notes 13-16, 28.
100. I know of only one case that explicitly incorporates third-party benefits into its reasoning; it is not an employment case, but a schools case, in which the court noted that an accommodation of sensitivity training could have benefits to other disabled students. Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1402 (9th Cir. 1994). Even that case made no mention of the possibility that an accommodation could benefit nondisabled others.
101. 44 F.3d 538 (7th Cir. 1995). For a thoughtful discussion of the Vande Zande opinion and the numerous ways in which it fails to compare costs and benefits adequately, see Cass Sunstein's contribution to the Special Issue Commemorating Twenty-Five Years of Judge Richard A. Posner, Cost-Benefit Analysis Without Analyzing Costs or Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms, 74 U. CHI. L. REV. 1895 (2007).
102. Vande Zande, 44 F.3d at 544.
103. Id. at 543.
104. Id. at 544.
105. Id. at 544-46.
106. Id. at 545-46.
107. See 42 U.S.C. § 12112(b)(5)(A) (2000) (defining "discriminate" to mean "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee").
108. See id. § 12111(10)(A) ("The term 'undue hardship' means an action requiring significant difficulty or expense, when considered in light of [several enumerated factors].").
109. Vande Zande, 44 F.3d at 542.
110. Id.
111. See US Airways, Inc. v. Barnett, 535 U.S. 391, 399-402 (2002) (rejecting the argument that "reasonable" simply means "effective").
112. Vande Zande, 44 F.3d at 542.
113. 42 U.S.C. § 12111(10)(A).
114. See infra Part IV.C (discussing the relevance of third-party benefits to the undue-hardship analysis).
115. Vande Zande, 44 F.3d at 543 (interpreting 42 U.S.C. § 12111(10)(B)(ii)-(iii)).
116. Id.
117. Id. (emphasis added).
118. Id. at 542-43 (emphasis added). The full context for this passage is as follows: It would not follow that the costs and benefits of altering a workplace to enable a disabled person to work would always have to be quantified, or even that an accommodation would have to be deemed unreasonable if the cost exceeded the benefit however slighdy. But, at the very least, the cost could not be disproportionate to the benefit. Even if an employer is so large or wealthy - or, like the principal defendant in this case, is a state, which can raise taxes in order to finance any accommodations that it must make to disabled employees - that it may not be able to plead "undue hardship," it would not be required to expend enormous sums in order to bring about a trivial improvement in the life of a disabled employee. Id. at 542-43.
119. Id. at 543 (emphasis added).
120. Id. (emphasis added).
121. Id. at 546.
122. 63 F.3d 131 (2d Cir. 1995).
123. Id. at 134.
124. Id.
125. Id. at 140.
126. Id. at 141.
127. See id. at 138 n.3 ("In evaluating the costs and benefits of a proposed accommodation, it must be noted that Section 504 does not require that the employer receive a benefit commensurate with the cost of the accommodation.").
128. Id. at 139 (emphasis added).
129. Judge Newman, in his concurrence, also speaks in terms of "many disabled persons" benefiting from accommodation, but read in context he does not seem to be addressing the possibility of a single accommodation benefiting more than one employee. Newman interprets Posner's position in Vande Zande as saying that "an accommodation is not reasonable, even if would it enable many disabled persons to become employed, if the aggregate cost of making it at numerous installations exceeds the costs that would result if these disabled persons were not employed." Id. at 146 (Newman, J., concurring) (emphasis added). Here, Newman is speaking about Posner's comment that the statute aims to save public money by reducing welfare dependency (and interpreting it incorrectly, I think, though not without basis); his reference to "many disabled persons" might seem to suggest the possibility of an accommodation helping more man one person, but his phrase "numerous installations" perhaps qualifies that, suggesting that he means only that the same accommodation could be implemented multiple times, each time for a different disabled employee, by different employers.
130. See, e.g., Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999) (quoting Borkowski, 63 F.3d at 139, for tire proposition that "[o]n the issue of reasonable accommodation, the plaintiff bears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits"); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997) (citing Vande Zande for the point that an employee is not entitled to any accommodation, but is limited to a reasonable accommodation).
131. 535 U.S. 391, 403 (2002).
132. Id. at 400-01.
133. See supra note 78 (discussing Harris's commentary on Barnett).
134. See EEOC, EEOC NOTICE NO. 915.002, ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT (2002) [hereinafter EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION], available at http://www.eeoc.gov/policy/docs/ accommodation.html; see also infra notes 120, 182, and accompanying text (discussing the EEOC's Enforcement Guidance on Reasonable Accommodation).
135. See, e.g., EEOC, THE AMERICANS WITH DISABILITIES ACT: A PRIMER FOR SMALL BUSINESSES (2004), http://www.eeoc.gov/ada/adahandbook.html#reasonable;
136. EEOC, SMALL EMPLOYERS AND REASONABLE ACCOMMODATION (1999), http://www.eeoc.gov/facts/accommodation.html;
137. EEOC, YOUR RESPONSIBILITIES AS AN EMPLOYER (2005), http://www.eeoc.gov/facts/ada17.html;
138. JAN, EMPLOYERS' PRACTICAL GUIDE TO REASONABLE ACCOMMODATION UNDER THE AMERICANS WITH DISABILITIES ACT (n.d.), http://www.jan.wvu.edu/ Erguide/Erguide.pdf; JAN, Accommodation Toolbox, http://www.jan.wvu.edu/links/ #Tool (last visited Feb. 15, 2008).
139. See EEOC, WORK AT HOME/TELEWORK AS A REASONABLE ACCOMMODATION (2005), http://www.eeoc.gov/facts/ telework.html.
140. For instance, the webpage of the Office of Disability Employment Policy (which is part of the Department of Labor) emphasizes benefits to employers and contains a link to a piece making the "business case" for hiring people with disabilities. See Office of Disability Employment Policy, Employer: Building a Competitive Edge, http://www.dol.gov/odep/categories/ employer/ (last visited Feb. 15, 2008). Even a recent publication by the EEOC that looks like it might consider third-party benefits - a fact sheet on reasonable accommodation for attorneys with disabilities - fails to achieve this promise.
141. See EEOC, REASONABLE ACCOMMODATIONS FOR ATTORNEYS WITH DISABILITIES (2006), http://www.eeoc.gov/facts/ accommodations-attorneys.html. This source advocates "thinking ahead" about "major changes in the work environment that affect all employees but may have a particular impact on attorneys with disabilities." Id. But then it proceeds to talk only about accommodations' costs and how to avoid them. Id. The section's focus on costs is aptly captured by its tide, "Thinking Ahead Can Avoid Future Problems." Id.
142. For examples of those who argue that the ADA is different because it goes beyond the antidiscrimination requirement of Title VII to mandate a distinctive form of affirmative action, see Samuel Issacharoff & Justin Nelson, Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act?, 79 N.C. L. REV. 307 (2001); Karlan & Rutherglen, supra note 13;
143. Mark Kelman, Market Discrimination and Groups, 53 STAN. L. REV. 833 (2001);
144. S. Elizabeth Wilborn Malloy, Something Borrowed, Something Blue: Why Disability Law Claims Are Different, 33 CONN. L. REV. 603, 627-28 (2001);
145. Amy L. Wax, Disability, Reciprocity, and "Real Efficiency": A Unified Approach, 44 WM. & MARY L. REV. 1421 (2003).
146. For the contrary argument that antidiscrimination requirements under Title VII, like ADA accommodation, require employers to absorb many costs unrelated to any obviously illegitimate action on the employer's part (including costs of not catering to discriminatory customer or coworker preferences, of banning rational stereotyping, and of changing rules that disparately impact protected groups), see Samuel R. Bagenstos, "Rational Discrimination," Accommodation, and the Politics of (Disability) Civil Rights, 89 VA. L. REV. 825 (2003);
147. Christine Jolls, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642 (2001);
148. and Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579 (2004).
149. 42 U.S.C. § 12112(b)(5)(A) (2000); cf. infra note 119 (comparing the accommodation requirement for religion under Title VII with accommodations under the ADA). The ADA's duty to accommodate was lifted from the EEOC's regulations implementing the Rehabilitation Act of 1973, codified in scattered sections of 29 U.S.C., which applied only to federal agencies and contractors. See 29 C.F.R. § 32.13 (2007); S. REP. NO. 101-116, at 31 (1989).
150. See 42 U.S.C. § 2000e(j) (2000) ("The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."); see also H.R. REP. NO. 101-485, pt. 3, at 40 (1989) (distinguishing the "significant" duty to accommodate under the ADA from the lesser duty for religion under Title VII as interpreted by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), to extend only to those accommodations that impose no more than a de minimis cost on the employer); Karlan & Rutherglen, supra note 13, at 6-7 (commenting on the different treatment of "accommodation" in Title VII and the ADA); Malloy, supra note 117, at 627-28 (noting that Congress intended for accommodation to have a broader meaning in the ADA than in Title VII). One could certainly analyze the third-party effects of accommodations in the religion context in interesting ways, and part of the narrowness of the accommodation requirement in this context is due to the greater solicitude of courts toward complaints of third-party costs. See generally 1 KENT GREENAWALT, RELIGION AND THE CONSTITUTION 333-48 (2006).
151. The regulations state the need for the interactive process permissively: "To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation." 29 C.F.R. § 1630.2(o)(3) (2007). The EEOC's Enforcement Guidance on Reasonable Accommodation is more adamant: "The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability." Id. § 1630.9 app.; EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 113.
152. Cf. Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell," 108 YALE L.J. 485 (1998);
153. Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002) [hereinafter Yoshino, Covering]. Yoshino in fact argues that the assimilationist demand persists in the disability context, asserting that the statute also requires people with disabilities to mitigate their disability as a prerequisite of obtaining coverage and accommodation under the statute.
154. KENJI YOSHINO, COVERING 175 (2006). This overlaps with the argument, made by Jill Hasday, that Sutton's holding that employees should be considered in their post-mitigation state to determine if they are ADA disabled, implies that employees must mitigate in order to be protected under the statute.
155. See Jill Elaine Hasday, Mitigation and the Americans with Disabilities Act, 103 MICH. L. REV. 217, 230-34 (2004). This is a contested claim about the statute, as Hasday appreciates, and one with which I disagree, for reasons too lengthy to set out here. Note, though, that even if mitigation were required of those with the capacity to mitigate, this would not change the fact that the statute still requires accommodation by the workplace where mitigation is not possible or has already been completed. That said, my claim is not that the ADA makes no assimilation demands - it surely does - but only that the ADA seems different from Title VII in how it allocates the pressure to change.
156. See Christine Jolls & J.J. Prescott, Disaggregating Employment Protection: The Case of Disability Discrimination 18 (Harvard Public Law Working Paper No. 106, 2005), available at http://ssm.com/abstract=580741.
157. Id.
158. Id. at 20-21.
159. Jolls and Prescott suggest that the difference between the short-term and long-term effects may be due to any of the following: the fact that "many accommodations, including physical alterations to the workplace and modification of workplace policies, impose obvious but often one-time costs on employers - costs that may well have been exaggerated or particularly salient in employers' minds just after the ADA's passage"; the fact that part of the short-term effects were in the period between enactment and the effective date, so declining to hire people with disabilities because of accommodation costs would not yet have been illegal; enforcement after the effective date; possible changes in attitudes over time in response to the statute's symbolic effect; increased investment in educational qualifications by individuals with disabilities; and declining costs of accommodations due to technological innovations and legal refinements. Id. at 21-22. In light of the discussion herein, we might add to this list a realization of unanticipated benefits.
160. Compare 42 U.S.C. § 12102(2) (2000) (defining the protected class under the ADA as those who have "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment"), with id. § 2000e-2(a)(1) (prohibiting, under Title VII, the discharge of "any individual" because of "such individual's race, color, religion, sex, or national origin"), and McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976) (holding that Title VII protects "white persons").
161. For a discussion of some of these implications, see Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 GEO. L.J. 399, 464-65 (2006).
162. Of course, nondisabled people could in theory see the statute as a potential benefit to them if they ever became disabled, creating a feeling of what we might call "existential insurance" - a kind of counterforce to what Harlan Hahn calls the "existential anxiety" that disabled people can inspire in nondisabled people. See Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, 44 J. SOC. ISSUES 39, 43-44 (1988) (defining "existential anxiety" for nondisabled people as "the perceived threat that a disability could interfere with the functional capacities deemed necessary to the pursuit of a satisfactory life," a feeling resulting from "a sense of personal identification with the position of a disabled person"). But the number of people who are likely to make such a prediction about themselves is questionable; and regardless, the effect on a nondisabled person of seeing the statute as really a benefit to herself is still likely to be different than if she had the present-day ability to bring a claim under it.
163. See, e.g., McDonald, 427 U.S. at 286-87 (holding that Title VII protects white persons).
164. 42 U.S.C. § 12102(2). The record-of and regarded-as prongs broaden the protected group and help to soften the statute's asymmetrical structure without fundamentally altering it.
165. See infra note 229.
166. Seth Harris's empirical work on EEOC mediation suggests that mediation is a more difficult task in ADA disputes, which he attributes in part to employers' resistance to accommodations as potentially costly. Seth D. Harris, Disabilities Accommodations, Transaction Costs, and Mediation: Evidence from the EEOC's Mediation Program (N.Y. Law Sch. Legal Studies, Research Paper No. 06/07-5, 2007), available at http://www.ssrn.com/abstract=920110, 12 HARV NEGOT. L. REV. (forthcoming 2008).
167. This is particularly true of third-party benefits that can be internalized by the employer (i.e., second-party benefits), explained earlier. See supra notes 13-14.
168. In addition, as discussed in relation to disclosure in Part IV.B, an employer may have an incentive not to credit the ADA for improvements to workplace life for third parties.
169. See generally ROSEMARIE GARLAND THOMSON, EXTRAORDINARY BODIES (1997).
170. See supra Part V.B.
171. As a prefix, "dis" denotes "the lack or absence" of the thing that follows it. 3 THE OXFORD ENGLISH DICTIONARY, at 391 (2d prtg. 1961).
172. Though disability is particularly associated with lack, note that there are other legal contexts in which costs, but not benefits, are salient, as part of our legal culture's tendency to focus on remedying harms more than recognizing benefits. Cf. Douglas G. Lichtman, Irreparable Benefits 16 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 305, 2006), available at http://ssrn.com/abstract_id=928907.
173. LINTON, supra note 42, at 120.
174. ADA Standards for Accessible Design, 28 C.F.R. ch. 1, pt. 36, app. A, § 5.4 (1994); see infra note 144 (quoting the passage in full).
175. I thank Adam Samaha for this turn of phrase. Concerns that attending to third-party benefits will shift the focus of the statute away from disabled people are discussed directly in Part V.
176. See, e.g., Mark C. Weber, Home and Community-Based Services, Olmstead, and Positive Rights: A Preliminary Discussion, 39 WAKE FOREST L. REV. 269, 278-79 (2004) (describing integration as the central "promise" of the ADA); David Strauss, Disability Discrimination (unpublished manuscript, on file with author);
177. cf. Jacobus tenBroek, The Right To Live in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841, 843-47 (1966) (claiming that integration should be the goal of policymaking in this area). But cf. Colker, supra note 69, at 1419-23 (arguing that the integrative purpose is sometimes given too much deference, particularly in the education context, to the detriment of the goal of antisubordination).
178. See 42 U.S.C. § 12101(a)(2) (2000) ("[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem . . . ." (emphasis added)); id. § 12101(a)(5) ("[I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities . . . ." (emphasis added)); id. § 12101(a)(7) ("[I]ndividuals with disabilities [have faced restrictions, limitations, and other forms of discrimination], based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. . . ." (emphasis added)); id. § 12101(a)(8) ("[T]he Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals . . . ." (emphasis added)). On the multiple goals of the statute more generally, see Emens, supra note 127, at 481-82.
179. 28 C.F.R. ch. 1, pt. 36, app. A, § 5.4 (1994). The relevant passage reads: 5.4 Dining Areas. In new construction, all dining areas, including raised or sunken dining areas, loggias, and outdoor seating areas, shall be accessible. In non-elevator buildings, an accessible means of vertical access to the mezzanine is not required under the following conditions: 1) the area of the mezzanine seating measures no more than 33 percent of the area of the total accessible seating area; 2) the same services and decor are provided in an accessible space usable by the general public; and, 3) the accessible areas are not restricted to use by people with disabilities. In alterations, accessibility to raised or sunken dining areas, or to all parts of outdoor seating areas is not required provided that the same services and decor are provided in an accessible space usable by the general public and are not restricted to use by people with disabilities. Id.
180. OFFICE OF ENTREPRENEURIAL DEV., U.S. SMALL BUS. ADMIN., ADA GUIDE FOR SMALL BUSINESSES 13 (1999), available at http://www.sba.gov/ada/smbusgd.pdf. The full context for this quote is as follows: If it is not readily achievable to provide the minimal number of accessible tables in all areas where fixed tables are provided, then the services must be provided in another accessible location, if doing so is readily achievable. However, these alternate location (s) must be available for all customers and not just people with disabilities. It is illegal to segregate people with disabilities in one area by designating it as an accessible area to be used only by people with disabilities. Id.
181. CYNTHIA ESTLUND, WORKING TOGETHER: HOW WORKPLACE BONDS STRENGTHEN A DIVERSE DEMOCRACY (2003).
182. See infra notes 151-152 (citing literature showing the positive effects of "contact" between disabled and nondisabled persons).
183. The Seventh Circuit rejected the relevance of these expressive considerations. The relevant passage in Judge Posner's opinion is this: Her argument rather is that forcing her to use the bathroom sink for activities (such as washing out her coffee cup) for which the other employees could use the kitchenette sink stigmatized her as different and inferior; she seeks an award of compensatory damages for the resulting emotional distress. We may assume without having to decide that emotional as well as physical barriers to the integration of disabled persons into the workforce are relevant in determining the reasonableness of an accommodation. But we do not think an employer has a duty to expend even modest amounts of money to bring about an absolute identity in working conditions between disabled and nondisabled workers. The creation of such a duty would be the inevitable consequence of deeming a failure to achieve identical conditions "stigmatizing." That is merely an epithet. Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 546 (7th Cir. 1995). The plaintiff's claim might be read to rest principally on the fact that the sink she was to use for food and drink purposes was in the bathroom, which might seem problematic because the bathroom is less sanitary or salubrious than the kitchen. But her claim as described in the district court further emphasizes the separateness as independently problematic: "Plaintiff argues that the failure to make the entire kitchen accessible violates the ADA because forcing her to use the bathroom sink amounts to a 'separate but equal' facility that cannot rise to [the] level of a reasonable accommodation and violates the ADA's prohibition against classifying or segregating disabled employees in a manner that would 'affect' their 'employment opportunities or status.'" Vande Zande v. Wis. Dep't of Admin., 851 F. Supp. 353, 362 (W.D. Wis. 1994) (quoting 29 C.F.R. § 1630.5 (1994)). Title I defines "discriminate" to include "limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee." 42 U.S.C. § 12112(b).
184. Lisa Schur et al., Corporate Culture and the Employment of Persons with Disabilities, 23 BEHAV. SCI. & L. 1, 3-20 (2005)
185. (citing Adrienne Colella, Organizational Socialization of Newcomers with Disabilities: A Framework for Future Research, 14 RES. PERSONNEL & HUMAN RESOURCES MGMT. 351 (1996)
186. and Dianna L. Stone & Adrienne Colella, A Model of Factors Affecting the Treatment of Disabled Individuals in Organizations, 21 ACAD. MGMT. REV. 352 (1996));
187. see Peter David Blanck & Mollie Weighner Marti, Attitudes, Behavior and the Employment Provisions of the Americans with Disabilities Act, 42 VILL. L. REV. 345 (1997);
188. Adrienne Colella, Coworker Distributive Fairness Judgments of the Workplace Accommodation of Employees with Disabilities, 26 ACAD. MGMT. REV. 100 (2001);
189. Adrienne Colella et al., The Impact of Ratee's Disability on Performance Judgments and Choice as Partner: The Role of Disability - Job Fit Stereotypes and Interdependence of Rewards, 83 J. APPLIED PSYCHOL. 102 (1998);
190. see also DAVID M. ENGEL & FRANK W. MUNGER, RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES OF AMERICANS WITH DISABILITIES 244-45 (2003) (observing, in a qualitative study of employees with disabilities and the ADA, that most were not inclined to assert their rights direcdy, but, rather, "depended almost exclusively on rights becoming active in some other way - through the support of coworkers, through the unilateral actions of their supervisors, through corporate decisions to alter workplace environments or practices, or through more diffuse attitudinal changes or cultural and discursive shifts").
191. See Stone & Colella, supra note 149, at 372, 380-81 (1996).
192. See, e.g., Patrick W. Corrigan & David L. Penn, Lessons from Social Psychology on Discrediting Psychiatric Stigma, 54 AM. PSYCHOLOGIST 765, 772-73 (1999);
193. Donna M. Desforges et al., Effects of Structured Cooperative Contact on Changing Negative Attitudes Toward Stigmatized Social Groups, 60 J. PERSONALITY & SOC. PSYCHOL. 531 (1991);
194. Monika E. Kolodziej & Blair T. Johnson, Interpersonal Contact and Acceptance of Persons with Psychiatric Disorders: A Research Synthesis, 64 J. CONSULTING & CLINICAL PSYCHOL. 1387 (1996);
195. Elaine Makas, Positive Attitudes Toward Disabled People: Disabled and Nondisabled Persons' Perspectives, 44 J. SOC. ISSUES 49 (1988); Stone & Colella, supra note 149, at 383; see also Emens, supra note 127, at 445 n.192, 481 n.344 (citing sources).
196. For a recent large-scale demonstration of the benefits of contact across studies and categories, see Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of Intergroup Contact Theory, 90 J. PERSONALITY & SOC. PSYCHOL. 751 (2006).
197. See, e.g., Bagenstos, supra note 117, at 843-44 & n.55 (2003) (discussing how working together in "circumstances of relative equality can reduce prejudice and stereotyping"); Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89 GEO. L.J. 1, 23-24 (2000) (summarizing research indicating that the "contact hypothesis" is best supported by situations of "cooperative interdependence" involving an "equality of status" and "normative support for friendly" interactions);
198. Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 CAL. L. REV. 1063, 1101-02 (2006) (discussing the conditions that contribute to a debiasing environment, including the need for equal status, cooperation, and nonsuperficial contact);
199. see also Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 CAL. L. REV. 1251, 1331 (1998) (stating that "simple integration" alone is not sufficient to reduce "intergroup conflict" and that competitive contact will actually worsen "intergroup bias").
200. See Stone & Colella, supra note 149, at 372.
201. Cf. supra note 69 and accompanying text (distinguishing Universal-Design accommodations from apparently zero-sum accommodations and discussing Ruth Colker's story of the "Teddy Bear" room).
202. See supra text accompanying note 139 (comparing the medical and social models of disability).
203. Susan Daniels, a former Social Security Commissioner for Disability, was apparently fond of pointing out that only those with disabilities bring their own chairs, and that lights, microphones, and loudspeakers are accommodations for people who get their sensory input that way. See Adrienne Asch, Critical Race Theory, Feminism, and Disability: Reflections on Social Justice and Personal Identity, 62 OHIO ST. L.J. 391, 402 (2001) (citing Susan Daniels, Address at the Conference of the Association for Higher Education and Disability (July 14, 1999)).
204. Or, alternatively, others may be persuaded by the point that being able to lift more than ten pounds is likely to be a major life activity in some contexts and milieus (e.g., in communities of laborers) and not in others (e.g., among judges and law professors), making an impairment in lifting a disability in one world and not in the other. Cf. Mays v. Principi, 301 F.3d 866, 869 (7th Cir. 2002) (noting, in dicta, that "[w]e doubt whether lifting more than 10 pounds is [a major life] activity").
205. I agree with Adam Samaha that the social model - as a descriptive account of how disability is created - does not necessarily require any normative prescriptions. See Adam M. Samaha, What Good Is the Social Model of Disability?, 74 U. CHI. L. REV. 1251, 1253 (2007) ("The social model . . . has essentially nothing to say about which [normative] framework to use."). But the social model does, I believe, have real rhetorical and imaginative power to challenge assumptions about disability - and the radical social model possibly even more so.
206. For further discussion, see Elizabeth F. Emens, Against Nature, NOMOS (forthcoming 2008).
207. Cf. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY (2002) (discussing race as a lens through which to identify broader societal problems).
208. See supra text accompanying note 53.
209. See, e.g., Kvorjak v. Maine, 259 F.3d 48, 58 (1st Cir. 2001) (concluding that "the essential functions of a claims adjudicator cannot be performed at an individual employee's home"); Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 544 (7th Cir. 1995) (citing teamwork and supervision concerns as rationales for concluding that "[g]enerally . . . an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home"); Misek-Falkoff v. Int'l Bus. Machs. Corp., 854 F. Supp. 215, 228 (S.D.N.Y. 1994) (citing the inability to train the plaintiff at home as a rationale for rejecting telecommuting as a "reasonable accommodation"), aff'd, 60 F.3d 811 (2d Cir. 1995); Kristen M. Ludgate, Note, Telecommuting and the Americans with Disabilities Act: Is Working at Home a Reasonable Accommodation?, 81 MINN. L. REV. 1309, 1325-30 & nn. 104-34 (1997) (collecting and summarizing cases that presume that telecommuting is not a "reasonable accommodation"). But see, e.g., Langon v. Dep't of Healdi & Human Servs., 959 F.2d 1053, 1061-62 (D.C. Cir. 1992) (acknowledging that not allowing an employee to work from home may constitute a failure to reasonably accommodate).
210. See, e.g., Lori D. Bauer, Telecommuting Tradeoffs: Freedom and the Law, BUS. L. TODAY, Mar.-Apr. 2002, at 17, 17 ("[N]ew capabilities have launched telecommuting as . . . an attractive option for both employers and employees . . . .");
211. Robert Ingle, Telecommuting: "Taking Your Work Home with You" Will Never Be the Same Again, MD. B.J., Nov.-Dec. 2000, at 3, 4.
212. See EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 113 (indicating that, in some instances, telecommuting is a "reasonable accommodation" that employers must allow).
213. Exec. Order No. 13,217, 66 Fed. Reg. 33,155 (June 18, 2001). President Bush's New Freedom Initiative for People with Disabilities includes the Telework Program, which provides federal funds to twenty states to guarantee low-interest loans for people with disabilities to purchase computers and other equipment so that they may work from home. See Press Release, Office of Press Sec'y, White House, President Bush Highlights Commitment to Americans with Disabilities (June 19, 2001), available at http://www.whitehouse.gov/ news/releases/2001/06/20010620.html (announcing a $20 million budget for the Access to Telework Fund);
214. see also RESNA NAT'L ASSISTIVE TECH. ASSISTANCE P'SHIP, INCREASING EMPLOYMENT OPPORTUNITIES FOR PEOPLE WITH DISABILITIES: A REPORT ON THE FIRST TWO YEARS OF PROGRAM OPERATIONS OF THE TELEWORK PROGRAM FY 2004-FY 2005, at 1-2 & tbl.A (2006). Combined federal and state funds for the Telework Program total $21.9 million (with states providing one for every nine dollars of federal funds). Id. As of 2005, however, only 78 applications had been submitted, mostly from entrepreneurs, at a value of $349,535.
215. U.S. DEP'T OF EDUC., ACCESS TO TELEWORK FUND, at G-50 (2001), available at http://www.ed.gov/pubs/AnnualPlan2002/rV215-TeleworkFund-0412.pdf.
216. See, e.g., Ludgate, supra note 161, at 1321-22 ("Benefits to employers include savings on office overhead, lower employee absenteeism, increased productivity, improved employee morale, and higher employee retention. Telecommuting also provides significant public policy benefits, including reduced traffic congestion, air pollution, and energy consumption." (footnotes omitted)). Note, as a caveat to the claim of third-party benefits, that Michelle Travis has made a compelling argument that telecommuting, like any other new workplace technology, may effectively benefit those with power and burden those without it, and may do so in a particularly gendered way. Specifically, Travis argues that women are more likely to be pushed into working from home, where their home responsibilities may overwhelm them furiher. See Michelle A. Travis, Telecommuting: The Escher Stairway of Work/Family Conflict, 55 ME. L. REV. 261, 265 (2002).
217. See Figure 4, supra Part I.F.
218. See Kvorjak, 259 F.3d at 56 n.15 ("[T]he State maintains that such research would be difficult for an at-home employee to manage without imposing an undue burden on employees at the office because it requires physical access to paper files, as well as access to the unemployment insurance database. An at-home employee thus would have to rely on others to find, copy, and mail needed documents."); see also Timothy Golden, Co-Workers Who Telework and the Impact on Those in the Office: Understanding the Implications of Virtual Work for Co-Worker Satisfaction and Turnover Intentions, 60 HUM. REL. 1641, 1660 (2007) (commenting on the greater workload experienced by coworkers of telecommuters, in a study of 240 professional employees (of one organization) that found that a greater prevalence of teleworking was correlated with greater dissatisfaction with coworkers, but that this correlation was diminished for employees with greater job autonomy).
219. See infra note 182 and accompanying text.
220. President Bush's NFI Telework Program could help support the purchase of such equipment, though it provides little incentive for employers, as opposed to employees or entrepreneurs, to apply for the loans, because employers who apply must do so in the name of a particular employee who retains legal title to the equipment. Letter from Joya Banerjee to author (Oct. 4, 2006) (on file with the University of Pennsylvania Law Review) (reporting on a conversation with Nancy Meidenbauer of the Rehabilitation Engineering & Assistive Technology Society of North America (RESNA) Technical Assistance Project).
221. Cf. Duda v. Bd. of Educ., 133 F.3d 1054, 1056, 1059-60 (7th Cir. 1998) (finding that the employer violated the ADA because it "segregated [Duda] from others at the school" by forcing him to transfer to another site).
222. On the latter, see, for example, Jerry Kang, Cyber-Race, 113 HARV. L. REV. 1130, 1186-1205 (2000).
223. MINOW, supra note 17, at 20.
224. See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999).
225. Samuel R. Bagenstos, Subordination, Stigma, and "Disability, " 86 VA. L. REV. 397, 418, 418-67 (2000).
226. Id. at 466-84.
227. See supra Part III.
228. RILEY, supra note 13, at 110-11.
229. Riley seems to be talking about passing, to the extent that he wants the accommodations to be concealed. His reference to "screaming," however, implies an interest in that milder sister of passing - covering. Covering involves not concealing an identity, but making it possible for others to disattend that identity. See generally Yoshino, Covering, supra note 121 (developing a theory of covering building on ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 102-04 (1963)). What effect covering, or declining to cover, has on others' attitudes would be an interesting topic for empirical study. But it seems reasonable to think that making others aware of positive changes to the environment due to disability would help encourage favorable attitudes toward disability. See supra Part III.
230. 42 U.S.C. § 12112(d)(3)(B) (2000).
231. The EEOC's Guidance on Reasonable Accommodation and Guidance on Psychiatric Disabilities contain similar, though slightly different, discussions of the issue. In addition, because the EEOC Guidance on Reasonable Accommodation specifically states merely that the employee can disclose, so long as there is no coercion by the employer, a cautious employer could reasonably infer that it may not disclose even if the employee gives permission. See infra notes 182-183, 189.
232. See, e.g., Lisa E. Key, Co-Worker Morale, Confidentiality, and the Americans with Disabilities Act, 46 DEPAUL L. REV. 1003, 1039-40 (1997).
233. EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 113 ("An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward the individual's disability. Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees'[] ability to work." (footnote omitted)). Of course, one may also read Barnett as articulating a broader notion of undue hardship based on coworker morale, where job entitlements are at stake. See supra text accompanying notes 110-111 (discussing US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)).
234. For instance, the Guidance on Psychiatric Disabilities says that, while an employer may not disclose medical information or the fact that an accommodation has been provided (because it implies that there is a disability), the employer may respond to coworker questions by explaining "that it is acting for legitimate business reasons or in compliance with federal law." EEOC, ENFORCEMENT GUIDANCE ON PSYCHIATRIC DISABILITIES, supra note 19. The Guidance on Reasonable Accommodation goes further, saying that [a]n employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons.
235. EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 113.
236. See, e.g., Lauren B. Gates, Workplace Accommodation as a Social Process, 10 J. OCCUPATIONAL REHABILITATION 85, 85 (2000) (arguing that a carefully designed disclosure plan can help disclosure lose "its status as a taboo topic");
237. see also Rose A. Daly-Rooney, Designing Reasonable Accommodations Through Co-Worker Participation: Therapeutic Jurisprudence and the Confidentiality Provision of the Americans with Disabilities Act, 8 J.L. & HEALTH 89 (1993) (suggesting that a "group brainstorming approach" to designing reasonable accommodations, which would require disclosure to coworkers, can lead to better accommodations, increased focus on the disabled employee's abilities rather than limitations, and improved communication with coworkers).
238. See Gates, supra note 184, at 91-95; see also Interview with Lauren B. Gates, supra note 24 (providing the detailed observations that follow).
239. For any number of reasons, people with disabilities, physical or mental, may sometimes prefer not to have to tell their own stories. Cf. Elizabeth F. Emens, Shape Stops Story, 15 NARRATIVE 124, 130-31 (2007). This may mean a desire not to have their stories told at all, or it may sometimes mean a desire not to have to be the one doing the telling.
240. See, e.g., Manuela Barreto, Naomi Ellemers & Serena Banal, Working Under Cover: Performance-Related Self-Confidence Among Members of Contextually Devalued Groups Who Try To Pass, 37 EUR. J. SOC. PSYCH. 337, 349 (2006) (reporting on a study of an invisible, contextually devalued trait and showing that concealers thought their partners had more positive expectations of their ability to perform while the concealers themselves had lower performance-related self-confidence);
241. John E. Pachankis, The Psychological Implications of Concealing a Stigma: A Cognitive-Affective-Behavioral Model, 133 PSYCH. BULL. 328, 328-29 (2007) (discussing researchers' recent development of a more nuanced view of concealable stigmatized traits, from a view that bearers of such traits escaped the negative consequences of stigma to a view that appreciates the potentially negative consequences of concealing the traits);
242. Belle Rose Ragins, Romila Singh & John M. Cornwell, Making the Invisible Visible: Fear and Disclosure of Sexual Orientation at Work, 92 J. APPLIED PSYCH. 1103, 1114 (2007) (reporting that fear of disclosure of gay identity at work, among those who had not disclosed or fully disclosed their sexual orientation, "had an overwhelmingly negative relationship with their career and workplace experiences and their psychological well-being" but finding little relationship between range of disclosure and outcome variables).
243. See EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 113.
244. The EEOC Enforcement Guidance on Reasonable Accommodation says merely that "[a]s long as there is no coercion by an employer, an employee with a disability may voluntarily choose to disclose to coworkers his/her disability and/or the fact that s/he is receiving a reasonable accommodation." Id.
245. See Interview with Lauren B. Gates, supra note 24. According to Gates, disclosure can have the following benefits for a person with a mental health condition: it allows her to be protected by the ADA and to request accommodation; it relieves her of the burden that can come from hiding this aspect of herself; and since others at work can usually tell that there is a problem, disclosure prevents them from making up an explanation for the problem (such as substance abuse or incompetence) that is probably worse for the person. Id.
246. See, e.g., Key, supra note 181, at 1009-11 (discussing how employers often deal with complaints from employees regarding the special treatment of a coworker with a disability); see also Jessica Zeldin, Note, Disabling Employers: Problems with the ADA's Confidentiality Requirement in Unionized Workplaces, 73 WASH. U. L.Q. 737, 741 n.20 (1995) (asserting that favoritism shown to the disabled employee may damage employee morale).
247. The fact that employers should be able to adjust wages and prices in response to such benefits parallels the point that, to the extent that accommodations cost money, the employers would presumably pass these costs on to employees or customers in the form of lower wages or higher prices. See Christine Jolls, Accommodation Mandates, 53 STAN. L. REV. 223, 230-33 (2001) (observing that the costs of accommodation mandates tend to affect wages generally, rather than just those of the accommodated group);
248. Lawrence H. Summers, Some Simple Economics of Mandated Benefits, 79 AM. ECON. REV. 177, 179-82 (1989) (describing the effect of mandated benefits on wages and prices);
249. Cass R. Sunstein, Human Behavior and the Law of Work, 87 VA. L. REV. 205, 236-40 (2001) (describing how the burden imposed by various employment measures can be offset by lower wages). Thus, while accommodations designed for individuals may have positive externalities for third parties, they may simultaneously create costs for those or other third parties. That said, this can be true for any accommodation - whether or not it creates benefits for third parties - so this does not diminish (and in fact may increase) the impetus to consider the potential third-party benefits of different accommodations.
250. I am bracketing in this Article the question of whether the courts' cost-benefit approach to reasonableness and undue hardship is sound as a matter of statutory interpretation or social policy. What I argue requires no fundamental change in the statute or the broad doctrinal contours of its interpretation by courts.
251. Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995).
252. Id. at 543.
253. Borkowski seems to open the door to this by referring to multiple employees in its undue hardship discussion, as discussed in Part II.A, supra, though I have found no cases that follow this through.
254. In addition, the House Report accompanying the ADA includes the following passage: The Committee also intends that the factors set forth in 101 (9) (B) are not exclusive and that in appropriate circumstances courts and the administrative agencies may use other relevant factors . . . . For example, the number of employees or applicants potentially benefiting from an accommodation may be a relevant consideration in determining undue hardship where use by more than one person with a disability would reduce the relative financial impact of an accommodation. For example, a ramp installed for a new employee who uses a wheelchair not only benefits that employee but will also benefit mobility-impaired applicants and employees in the future. Assistive devices for hearing and visually-impaired persons may be shared by more than one employee so long as each employee is not denied a meaningful equal employment opportunity caused by limited access to the needed accommodation. On the other hand, the Committee wishes to make clear that the fact that an accommodation is used by only one employee should not be used as a negative factor counting in favor of finding an undue hardship. By its very nature, an accommodation should respond to a particular individual's needs in relation to performance of a specific job at a specific location. It is not the Committee's intent that the individualized nature of the accommodation process be undermined when considering whether other employees may be benefited by the accommodation requested by a single individual. H.R. REP. NO. 101-485, at 69 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 351. Note that the House Report makes no mention of possible benefits to nondisabled employees.
255. See, e.g., Ludgate, supra note 161, at 1322 n.82, 1333-34 (citing research studies suggesting that telecommuting may actually increase worker productivity).
256. See supra Part III.B.
257. But cf. Kvorjak v. Maine, 259 F.3d 48, 57 (1st Cir. 2001) (claiming that one worker's telecommuting would pose an undue burden on coworkers).
258. See infra Part V.
259. US Airways, Inc., v. Barnett, 535 U.S. 397, 400-01 (2002); see also Part II.A.
260. See, e.g., Sunstein, supra note 80.
261. See supra text accompanying note 195.
262. See infra note 229 (discussing the narrowing effect of the statutory definition of disability). For example, an employee's request for better ventilation in a workplace involving chemical fumes would look more promising if other workers' health were taken into account. But the case on this point that came before the Seventh Circuit failed because the asthmatic plaintiff was determined not to be substantially limited in a major life activity. See Webb v. Clyde L. Choate Mental Health & Dev. Ctr., 230 F.3d 991 (7th Cir. 2000).
263. See supra Part I.D.5.c.
264. See, e.g., Sunstein, supra note 80.
265. The JAN is a free service of the Office of Disability Employment Policy, U.S. Department of Labor. See JAN Homepage, http://www.jan.wvu.edu (last visited Feb. 15, 2008).
266. For important research asking employers about the extent to which their accommodations have indirect as well as direct benefits, see the work of Peter Blanck and colleagues, supra notes 26, 28.
267. See supra note 114 (providing examples of EEOC and other websites that do not acknowledge the third-party benefits of accommodations).
268. There are few studies of which groups are included in diversity initiatives, but what I have found supports what anecdotal observation suggests - the existence of a disability gap. See, e.g., WILLIAM ERICKSON ET AL., WEB-BASED STUDENT PROCESSES AT COMMUNITY COLLEGES: REMOVING BARRIERS TO ACCESS 2 (2007), http://digitalcommons.ilr. cornell.edu/cgi/viewcontent.cgi?article=1241&context=edicollect (reporting that "slightly over half of the schools (57%) [responding to the survey] had a student diversity plan and about half (48%) of those with a plan included students with disabilities in the plan").
269. See supra Part II.
270. See supra Part III.C.
271. See, e.g., Susan P. Sturm, The Architecture of Inclusion: Advancing Workplace Equity in Higher Education, 29 HARV. J.L. & GENDER 247, 249, 250 (2006).
272. See generally RILEY, supra note 13.
273. This quote is provided in Jo-Anne Bichard, Our Toilets: Access Dilemmas in U.K. Public Washrooms, Presentation at the Association of American Geographers Annual Meeting (Mar. 9, 2006) (on file with author).
274. Asch, supra note 156, at 401.
275. Derrick A. Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT 20, 22 (Kimberlé Crenshaw et al. eds., 1995). Bell continues by observing that "the Fourteenth Amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle- and upper-class whites." Id.;
276. see also Richard Delgado, Introduction to CRITICAL RACE THEORY: THE CUTTING EDGE, at xiii, xiv (Richard Delgado ed., 1995) ("Because racism is an ingrained feature of our landscape, it looks ordinary and natural to persons in the culture. . . . [W]hite elites will tolerate and encourage racial advances for blacks only when they also promote white self-interest.").
277. Asch, supra note 156, at 401.
278. See supra notes 58-61 and accompanying text (discussing disputes over accessible-toilet usage in the United States and Britain).
279. Asch, supra note 156, at 401.
280. See generally Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 VAND. L. REV. 849, 851-52 (2007) (describing "a growing sense in America that employment discrimination laws have become little more than employer-funded subsidies" and arguing that while this may be true for disability accommodation in many cases, the conflation of accommodation and antidiscrimination elides the notion of employer wrongdoing that justifies a broader scope for antidiscrimination efforts).
281. See supra Part III. For an example of how attitudes can themselves affect the successful implementation of accommodations, consider the following hypothetical, like the one that opens this Article, from a disability studies conference: At one panel, three filmmakers present visual work related to disability. As is typical at disability studies conferences, the speakers were asked to make their presentations in a manner accessible to all audience participants, including those who are visually impaired. One panelist begins her talk by presenting her visuals, with no narration or description, until an audience member asks if she would provide description. The panelist seems startled and frustrated. From then on, she occasionally provides intrusive and distracting words that inadequately convey the visual representations. By contrast, the other two filmmaker-panelists have created films with a thoughtful attention to accessibility. Their films integrate carefully crafted voice-overs, which elegantly yet sparely describe the visual images. Their films use words, tone, and cadence to create an effect that enhances the overall experience for all audience members, both those who can, and those who cannot, see the visuals. Third-party benefits, or third-party costs, it seems, can thus be created, depending in part on the attitude of the person implementing the accommodation.
282. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 45 (2006).
283. RICHARD T. FORD, RACIAL CULTURE: A CRITIQUE 213 (2005).
284. Cf. GUINIER & TORRES, supra note 159, at 117 ("Those who focus on changing particular first-dimension outcomes within the existing hierarchy produce very real short-term gains, especially to the immediate beneficiaries. But they often limit themselves to challenging outcomes only as they affect women and people of color. They do not mount a sustained critique of the rules that shape those outcomes for everyone, and they fail to imagine a larger - rather than merely reallocated - quantum of benefits." (emphasis added)).
285. See infra note 229 (providing sources that discuss the effects of the evernarrowing definition of "disability"); supra note 121 (discussing the argument that the ADA requires mitigation).
286. Indeed, the legislative history indicates that the fact that an accommodation assists only one person should not support a finding of undue hardship. See supra note 197; see also Steven B. Epstein, In Search of a Bright Line: Determining When an Employer's Financial Hardship Becomes "Undue" Under the Americans with Disabilities Act, 48 VAND. L. REV. 391, 403 (1995) ("[T]he fact that an accommodation benefits only one person does not weigh in favor of a finding of undue hardship.").
287. For discussions of the ways courts have narrowed the scope of the ADA, see Anderson, supra note 1, at 91-109; Bagenstos, supra note 174; and Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 BERKELEY J. EMP. & LAB. L. 91 (2000).
288. I call this a "schematic" version because courts are so rarely comparing actual dollar estimates on one or both sides of the balance. See Sunstein, supra note 80.
289. Vande Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995).
290. See US Airways, Inc. v. Barnett, 535 U.S. 391, 404-05 (2002); EEOC, ENFORCEMENT GUIDANCE ON REASONABLE ACCOMMODATION, supra note 113; see also text accompanying supra notes 110-111 (discussing Barnett).
291. See supra Part II.
292. See supra Part II.A.
293. See supra note 173 and accompanying text.
294. See supra note 197 and accompanying text.