Discrimination with a Difference: Can Employment Discrimination Law Accommodate the Americans with Disabilities Act?

Abstract

This paper analyzes the three recent ADA employment cases in the Supreme Court to highlight the unique features of the ADA. While all civil rights statutes have both an antidiscrimination command and a redistributive norm, the ADA is unique in that its definition of discrimination is based in large part on the failure to redistribute. Unlike the customary model of antidiscrimination law, which at its heart compels that similarly situated persons be treated similarly, the ADA begins with a premise of difference and then defines discrimination as the failure to reasonably accommodate those difference. Thus, despite the fact that Congress drafted the ADA to fit the model of Title VII, the ADA uniquely carries a cost burden for employers who, even if they act entirely without animus, may be forced to hire employees with discernibly different skills or abilities.

This article argues that the Court's oftentimes tortured analysis of the ADA in the 1999 employment trilogy stems from this basic dilemma: The Court had to make wealth-redistributive value judgments sub silentio under a statutory scheme that obscures the scope of its redistributive mandate with the time-tested language of antidiscrimination. The article begins with an analysis of the divisions between the majority and dissents in these cases that turns on the need to craft rules of judicial administration. While the dissent would allow cases to proceed to the employer's duty to accommodate, and would allow a case-specific analysis to follow, the majority opts for a more restrictive view of the Act that would allow the earlier termination of claims. Under the majority's view, the appropriate threshold is whether an employee is disabled or regarded as disabled in a "major life activity." The court holds that seeking a particular job when other, less desirable positions in related lines of work might be available does not render an individual disabled in such a major life activity. More shockingly, the Court suggested that working is not even a major life activity.

This article concludes by asking how this statute is different from other vaguely-worded statutes. The differences between the ADA and other statutes are its unfunded mandate quality, its lack of a bright-line standard, and its inability to spread the costs evenly across society. Ultimately, these difficulties can be traced to the incongruence of a primarily wealth-redistributive statute being imposed on to the form of a but-for discrimination statute.

JEL Classification: J71, J78, K30, K41