Anticipating Accommodation

66 Pages Posted: 19 Mar 2020

Date Written: February 24, 2020

Abstract

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act (“ADA”), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved — and may have even worsened — since the Act’s passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA’s failure, but they have lacked sufficient data to discern both what aspect of the mandate is problematic and how to improve it. This Article is the first to supply the missing data, using two experimental vignette studies that test decisionmakers’ willingness to accommodate job candidates and existing employees. The studies find that decisionmakers are more reluctant to accommodate job candidates than existing employees, and cost concerns drive much of this reluctance. Based on these findings, the Article argues that much of the ADA’s ineffectiveness stems from the ambiguity it creates with respect to the reasonable accommodations disabled workers may require. Employers have little information about job candidates, making it difficult to estimate the costs of accommodating a candidate with any accuracy; accommodating an existing employee is inherently less ambiguous because employers have prior experience with that worker. As a result, employers exhibit far more aversion towards accommodating disabled job candidates than disabled existing employees. Because the current structure of the ADA only increases this ambiguity, particularly at the hiring stage, the Article proposes a twofold reform that promotes clarity in employers’ obligations to accommodate: cost caps to limit what an employer must spend to accommodate a given employee and the extension of governmental disability benefits to cover accommodation costs that exceed those caps. These alterations to the ADA will help reasonable accommodation achieve its theoretical promise, not only for workers with disabilities, but also for others disadvantaged by traditionally inflexible working environments, to whom the reasonable accommodation model may one day be extended.

Keywords: disability, reasonable accommodation, weight, pregnancy, ambiguity aversion

JEL Classification: J70, K15, K38

Suggested Citation

Shinall, Jennifer Bennett, Anticipating Accommodation (February 24, 2020). Iowa Law Review, Vol. 105, No. 2, 2020. Available at SSRN: https://ssrn.com/abstract=3543732

Jennifer Bennett Shinall (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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