The Law & Political Economy of Disability Accommodations

PUBLISHED

Shirley Lin is Acting Assistant Professor of Lawyering at NYU Law School and incoming Assistant Professor of Law at the Elisabeth Haub School of Law at Pace University

PUBLISHED

Shirley Lin is Acting Assistant Professor of Lawyering at NYU Law School and incoming Assistant Professor of Law at the Elisabeth Haub School of Law at Pace University

Photo credit: Getty Images

Disability rights have reenergized equality discourse in recent decades by advancing a frame that unifies discrimination and material well-being. Its central innovation is the law of accommodations, which requires institutions to guarantee equal access to people with disabilities. But as I argue in a forthcoming article, accommodations law undermines itself by relying upon individuated bargaining and market logic to remedy structural subordination in the workplace. It ignores the power disparities inherent to this task, and denies the state a direct role in dismantling ableism. Thus, when the pandemic ravaged our lives and produced staggering racial and social disparities, workers found no precedent for collective action around disability or large-scale strategies to preserve wellbeing.

The political economy of disability has been shaped over successive periods in which our ideas about disability and sources for political support evolved. U.S. law first defined disability under a medical model, classifying it as the inability to work when administering a pension system for soldiers injured in the Civil War. Social insurance and the medical model remained core aspects of disability policy, but this framing complicated efforts to mobilize for new interventions. As of the 1970s, social movements led by people with disabilities advanced a model of disability as a social construct contingent on physical and social conditions. Under this “social model,” whether a condition makes someone unable to perform a certain task is largely a matter of how society sets up the task. Valuing dignified participation in society for all meant access for the full complement of physical and mental abilities.

The touchstone of contemporary disability law, the Americans with Disabilities Act of 1990, was a victory of the militant disability rights movement, and was drafted with the social model in mind. Remarkably from today’s perspective, the ADA was a bipartisan bill. Conservatives aligned with civil rights advocates by reasoning that the cost of removing barriers to employment would be offset by a reduction in public safety-net benefits. However, Congress essentially delegated the design for this mandate to the Reagan-era EEOC, which in turn operationalized accommodations through private exchanges between employees and employers. Market logic further limited its redistributive work and society’s ability to critique its effectiveness.

Private Procedure and Private Substance

The accommodations mandate requires employers to remove barriers to integrate people with disabilities who would otherwise be able to work. It attracted the most controversy during and after the ADA’s passage. Congressional debate remained at a high level of generality, but ultimately conceded to a form of market-based proportionality. Lawmakers approved an “undue hardship” defense that excused small, less-resourced, or purportedly inflexible operations from providing accommodations based upon statutory factors such as cost, overall size and financial resources of the employer, impact on operations, and the composition or structure of the workforce. By statute, regulation, and Court interpretation, accommodations law enshrines zero-sum analysis and presumes competition between one who receives an accommodation and all others, permitting contractual bargaining to trump hard baselines that reflect collective values.

In a 1991 rule, the EEOC unveiled the “interactive process” by which it would implement the broad accomodations mandate. The process envisions an idealized exchange in which individual workers and employers would collaborate to determine eligibility and identify an accommodation once the worker disclosed a disability. To bring this negotiation about, the EEOC regulations simply instruct parties to identify limitations and potential solutions, and then to choose an accommodation that would be effective for both parties. It does nothing to account for the unequal power of employer and employee to effect organizational change and even to access information, let alone the ways that race, class, gender, and other characteristics can intersect with disability to compound these inequalities. In our non-idealized world, such negotiations are far from simple, as the undue hardship defense can raise a thicket of substantive legal issues the parties must also resolve privately and informally. Meanwhile, state-facilitated avenues for collective action through unions and worker organizations have narrowed, making individual bargaining the only option for most workers.

Courts, traditionally loathe to grant any deference to EEOC interpretive positions, made an enthusiastic exception for this procedure. Indeed, they have gone further than the agency.  While the regulations and supplemental interpretive guidance present the interactive process as “informal” and optional, since the late 1990s a majority of circuits declared the interactive process to be mandatory. The ADA’s sole guardrail for the interactive process, the employer’s statutory defense of “good faith,” apparently drew inspiration from a labor law requirement that employers and unions bargain with each other in good faith. Yet courts have also begun to use findings of bad faith by individual employees during the interactive process to preclude them from raising a failure-to-accommodate claim. Their reformation is backfill, further constructing the process of implementing civil rights as common-law enforcement of “private” bargaining.

A private bargaining frame is unsettling precisely because the ADA—like other civil rights statutes—are supposed to replace private ordering. Unlike legal settlement talks where parties “bargain in the shadow of the law”, the interactive process requires parties to bargain over the very content of the law. As a result, the EEOC moved the ADA away from a vision of broad access toward a model of making each employee bargain for the narrowest possible individualized accommodation.

In leaving accommodations up to individual bargaining, the process gives no consideration to the third-party benefits from a change to the environment or policy. As Elizabeth Emens previously argued, providing a ramp, air filter, or remote work environment to remove barriers identified by the person with a disability is an innovation that irreducibly benefits many others. The undue hardship factors do not require society to count these benefits. Instead, they rest on short-term, zero-sum assumptions about cost to the employer in providing the accommodation.

Intersecting Disability, Organizational Exclusion, and Collective Public Knowledge

It is well established that the ADA has failed to increase the overall employment rate of people with disabilities, raising serious concerns about its ability to undo ableist norms. Less well explored, but no less concerning, is how effectively the ADA facilitates accommodation after hire. A 2019 study found that 47-58% of respondents with a work-limiting condition lacked an accommodation that would benefit them; among workers who requested an accommodation, 26% were denied one entirely. 

What is worse, available evidence indicates denials are not evenly distributed. As organizational theory predicts, disability, race, class, and gender, are constitutive of institutions, which amplify majoritarian practices absent systematic intervention. One study showed that white employees were three times as likely as black employees to have their employer affirmatively suggest an accommodation for their disabilities. Critical race theorists, notably Beth Ribet and Jamelia N. Morgan, observe that social identities are co-constructed in which marginalization, stereotyping, and other resistance to dismantling white supremacy shapes interactions as disabling.

Here, the more hierarchical the organization the greater the likelihood decisionmakers may devalue a physical or mental condition in tandem with racial, gender, and other subordinate identities. They may perceive the requester to be undeserving, unproductive, or cheaper to replace than to accommodate, particularly if white colleagues characteristically occupy higher-level positions. Many high-level employees are able to avoid the interactive process entirely by using their influence to reshape the organization in a way that accomodates them. But the perceived audacity of lower-ranked workers who attempt to negotiate their integration correlates to higher denials of an accommodation and the risk of unemployment, injury, or death.

New Approaches to Dismantling Barriers

Recent political ruptures have created new opportunities to demand the reallocation of power through law and regulation, and this power should be leveraged to reshape the meaning of accommodation. To start, the state must facilitate intelligent governance and collective action. The Census Bureau could expand national data collection to include accommodations granted or denied by position, industry, employer, and any disability anonymously to level the informational playing field and publicize innovation. The state should consolidate its structural anti-discrimination and health mandates under the ADA, Title VII, Family and Medical Leave Act, and OSHA so that it can establish comprehensive minimum standards for accommodations, as it already does for wages, and eliminate bargaining from most accommodations. While such infrastructure must be insulated against the risk of political abuse by the state, it enhances the ability of social movements and local governments to exercise political judgment and explore tripartite governance to improve norms at scale.

Moreover, accommodations law should recenter collective action and reject the privatization of public law. We must mend the schism between labor and employment law. Congress can settle the question that opposing discrimination is a form of protected concerted activity, even if initiated alone. Furthermore, given the extent to which law shapes labor priorities, Congress must also make clear that workplace contracts—such as the seniority policy upheld in U.S. Airways v. Barnett, and collective bargaining agreements—cannot supersede anti-discrimination law. Lead labor law reform proposals around structural injustice must also incorporate a disability justice lens. For example, safety reforms or sectoral advocacy should not be limited to on-the-job hazards but recognize disabilities as universally prevalent and accommodations as a powerful positive right. Teachers’ unions have amplified this understanding on the ground during the ongoing pandemic, as a possible exemplar for organizing.

Finally, the state must go farther to subsidize the minority of accommodations that do incur a cost through social insurance. Because tax law is one of the most redistributive tools available, a modest payroll tax (much like universalized paid family and medical leave) could fully realize the social model: shifting responsibility for eliminating ableism to society and the corporations that benefit as a matter of course. 

All of these reforms cultivate positive, normative understandings of disability that remain contested. Disability accommodations play a pivotal role in changing social norms and architecture; a welfare state alone cannot achieve these goals. By exploring new ideas for structural transformation perhaps, then, we can imagine a state meaningfully engaged in disability justice.

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