Analyzing Social Impairments Under Title I of the Americans with Disabilities Act
66 Pages Posted: 19 Mar 2016 Last revised: 20 Jun 2016
Date Written: March 17, 2016
Although a large literature addresses psychosocial disability under Title I of the ADA generally, little of it specifically focuses on “social” impairments — namely, how an employee’s social functioning may constitute an element of her disability. Yet impairments in social functioning are a potential feature of many disabilities covered under the ADA. This Article offers a comprehensive analysis of how Title I of the ADA should apply to social impairments. First, it asks under what circumstances employees with social impairments should be eligible for the ADA’s protections. Congress’s enactment of the Americans with Disabilities Act Amendments (ADAAA) in 2008 made important statutory changes that render obsolete the pre-2008 case law on social impairments, which was highly problematic for plaintiffs. Courts and commentators have yet to appreciate this, however. Second, this Article investigates how the ADA’s reasonable accommodations analysis should be handled for social impairments. Courts in ADA cases usually accept the need for physical modifications of the workplace, but are less likely to approve modifications in the socially constructed aspects of that space, even when modifications in the social landscape may be necessary to accommodate employees with social challenges. And even when the need for a particular type of accommodation may apply equally for employees with physical and social impairments, courts show far more skepticism towards employees in the latter group. Relying on extensive canvassing of reported cases, this Article evaluates what accommodations courts are most and least likely to approve and offers suggestions for how accommodations requests might best be cast to increase their likelihood of being accepted by an employer and/or court. Finally, this Article explores the great yet vastly underutilized potential of the “regarded as” prong of Title I of the ADA — which protects employees against discrimination if they are “regarded as” having a disability — in social impairment cases. The “regarded as” prong illuminates the manner in which an impairment may arise precisely because of the attitudes of others rather than because of any relevant limitation in the functioning of the person herself. A focus on social impairment illustrates the insights of the social theory of disability discrimination: in many cases it may be the social order in the workplace, by shunning those perceived to behave differently, that creates the very impairment at issue. By prohibiting impairment discrimination, the ADA has the potential to lower barriers to employment for persons perceived to be different in a wide range of ways. Exploring the “regarded as” theory of discrimination thus helps expose why courts, lawyers, scholars, commentators and the public should care deeply about accommodating social impairments in the workplace on the same basis as other disabilities. As societal understandings of the benefits of human difference evolve these benefits will be better seen; at this point, social impairment poses a new frontier in theorizing about disability that opens new insights about the meaning and proper extent of non-discrimination values.
Keywords: Americans with Disabilities Act, social impairment, employees with disabilities
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