This post is part of a symposium on Marta Russell and the Political Economy of Disability. Read the rest of the posts here.
As the disability justice movement gains greater acceptance in the United States, it is helpful to read or re-read the work of Marta Russell, one of the most influential disability justice activists in the 1990s and 2000s in the United States. Among the many insights contained in Capitalism & Disability, her prescient criticism of the American with Disabilities (ADA) Act merits special attention. While it is important for law professors to teach students to use the tool of the ADA to achieve reform, it is also important for us to teach, as Russell has said, “What Disability Rights Cannot Do.” It is important to recognize that “the economic system is a crucial contributing factor to a backlash against civil rights laws (the ADA in particular), the poor enforcement of those laws, and the lack of economic advancement of disabled people.”
Russell appropriately highlights some of the problems with the reasonable accommodation framework built into the ADA. She notes that two different approaches are available to try to attain better economic opportunities for disabled people: a civil-rights remedy approach under which “employers are required to provide access and accommodations as a matter of individual right,” and a subsidy approach under which government provides an “offset to business costs based on the notion that it is in the government’s (and society’s) interest to see that disabled people are employed.” As Russell correctly predicted, the courts have been unwilling to “initiate an economic revolution which forces businesses to provide accommodations.”
While Russell foresaw that the ADA would be unable to move the needle dramatically for the benefit of disabled employees, I believe her analysis could be pushed even further by considering the more structural flaws underlying the ADA. In this post, I will highlight one: the concept of reasonable accommodations itself.
The concept of reasonable accommodation or reasonable modification is basic to the ADA’s structure. In the employment discrimination section of the ADA (Title I), employers are required to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability […] unless such covered entity can demonstrate that the accommodation would impose an undue hardship.” In the public services section of the ADA (Title II), government entities are required not to discriminate against an individual with a disability “who, with or without reasonable modifications to rules, policies, or practices […] meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” And finally, in the section covering accommodations and services provided by private entities (such as hotels and restaurants) (Title III), it is considered to be discrimination to fail “to make reasonable modifications in policies, practices, or procedures … unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services […] or accommodations.”
That statutory language reflects the strong capitalistic perspective underlying the ADA. The primary problem is its intense individual rights perspective. Employers, public entities, and private businesses are allowed to ignore the inaccessible nature of their programs or activities until an individual with a disability seeks (or begs) for access. The problem is not simply that ADA Titles I and III pass the obligation to accommodate to the private sector, or that we have failed to pursue a government subsidy approach; the law also makes enforcement happen on an individualized basis after the program or service has been put in place. In other words, the ADA sets up a reactive rather than pro-active model, which makes it very difficult to seek group-based remedies. The expectation is that reform will happen one person at a time with a multitude of defenses available to avoid making the requested accommodation or modification (unsurprisingly, cost is an available defense). While not all ADA cases involve a request for an accommodation or modification, this structural feature of the ADA reflects its inherent neo-liberal limitations by forcing remedies to occur one person at a time.
While Russell principally focuses on the ADA, this same problem is endemic to the Individuals with Disabilities Education Act (IDEA). The IDEA, like the ADA, only requires modifications or assistance one child at a time after the child has been identified as having a disability that is causing them not to perform at grade-level expectations. Like the ADA, it is a reactive rather than pro-active model. Like the ADA, it does little to achieve structural reform.
To illustrate the shortcomings of such a reactive model, consider the following example. Yasmin Reyazuddin was hired as a full-time employee in Montgomery County in 2002 as an information and referral specialist. Reyazuddin is blind. For six years, she performed her job well using JAWS (Job Access with Speech), which allowed her to use a computer to access the information she needed to resolve client concerns. When the County decided to transition to a centralized call center in 2008 and update their software, she reminded them to use software that would be accessible with JAWS. Rather than comply with this request, the County purchased inaccessible software. With assistance from the National Federation of the Blind, her lawyers filed suit in 2011 to argue that the County should be required to provide her with accessible software. Because the County had purchased software already, she had to make her request as a “reasonable accommodation” after the workplace had become inaccessible. Following years of litigation, and many years spent performing make-work within the County that did not use her skills, she won limited relief in court. The county’s chief defense was that retrofitting the software they had chosen would be too expensive. This argument was available to them only because Reyazuddin had to frame her request as an accommodation in a reactive rather than pro-active lawsuit. Although she attained some success through litigation, her victory means nothing to the employees around the country who are required to perform their job with the inaccessible software that this call center purchased, as use of the software was not discontinued. Reyazuddin’s employer merely had to find a work-around that would allow her to continue to do her job despite the inaccessibility of the software that they purchased through the private marketplace.
The obvious solution to this kind of mass-produced inaccessibility problem is to require all software to meet accessibility standards before it can be made available for purchase in the private marketplace. A pro-active approach, which is often called a universal design approach, would require all entities to assume that their clients, students, or employees are disabled and design their entity in a way that maximizes disability access. But the ADA rarely requires a pro-active, universal design approach.
One might wonder why the ADA and IDEA contain this overly individualized, reactive structure. Russell blames the ADA’s structural flaws on the U.S. capitalist system in which government is not expected to provide the kind of funding that would be needed to radically transform housing, food, education, and employment. In my recently published book, I also discuss how the political right has been able to demonize disabled people (and nearly every other disadvantaged group in society) to justify a limited and elusive set of legal rights. Thus, the ADA and IDEA are enforced through what is called a private attorney general model of enforcement because, as Russell argues, a capitalistic Congress was not willing to fund broad public enforcement of those statutes. But when disabled people manage to find lawyers to take these cases, they are castigated as vultures who are preying on the private sector to gain the right to enter a business to purchase services. In other words, even though Congress has adopted a capitalist model of enforcement, which hands off enforcement to the private sector, when disabled people try to use this model of enforcement, they are criticized as greedy capitalists. What is good for the goose is not good for the gander.
Writing in the decade following the passage of the ADA in 1990, Russell identified the structural limitations of this law. While the ADA was amended in 2008 to respond to some of these flaws, the continuing requirement that individuals sue private entities post-injustice undercuts the efficacy of the law and cannot lead us to a truly inclusive society. Russell’s exhortation to work harder to attain genuine disability justice is as important as ever.