Accommodating Everyone

53 Pages Posted: 15 Sep 2017

See all articles by Nicole B. Porter

Nicole B. Porter

University of Toledo College of Law

Date Written: March 6, 2016

Abstract

This article attempts to eliminate “special treatment stigma” by accommodating everyone. Special treatment stigma occurs when some employees (usually individuals with disabilities and workers with caregiving responsibilities) are provided with accommodations in the workplace. This receipt of “special treatment” causes employers and co-workers to resent these employees. This article argues that the best way to ameliorate the stigma that accompanies special treatment in the workplace is to accommodate everyone through a universal accommodation mandate. This mandate would require employers to accommodate all employees who request an accommodation in the workplace, regardless of the reason for the accommodation. As long as the accommodation requested was “reasonable” and did not cause an “undue hardship,” employers would be required to provide it. However, recognizing that some reasons for requesting accommodations are truly more compelling than other reasons, I propose the implementation of a two-tier undue hardship analysis. Thus, for accommodations that are necessary either to allow an employee to perform the essential functions of the job or to allow an employee to attend to unavoidable care-giving obligations, the undue hardship defense would be the more stringent test used under the Americans with Disabilities Act, where “undue hardship” is defined as “significant difficulty or expense.” For all other accommodation requests, the employer would still be required to grant them as long as they do not cause an undue hardship using the more lenient standard used for religious accommodations under Title VII of the Civil Rights Act of 1964, where undue hardship has been defined as anything more than a “de minimis expense.” My hope is that this universal accommodation mandate—which allows all employees to request an accommodation but recognizes at least some hierarchy between necessary accommodations and all other accommodations—will eliminate the harm caused by special treatment stigma while still creating a workable standard.

Keywords: ADA, Gender, Disability, Care-giving, Accommodations, Structural Norms, Universal, Special Treatment, Stigma, Employees, Reasonable Accommodations

Suggested Citation

Porter, Nicole B., Accommodating Everyone (March 6, 2016). Seton Hall Law Review, Vol. 47, No. 85, 2016, Available at SSRN: https://ssrn.com/abstract=3036640

Nicole B. Porter (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-4785 (Phone)

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