Bargaining for Integration

Abstract

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, the scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique the law’s interactive requirements. The process does not appear in the statute, but is an agency’s conceptualization of the mandate as an idealized exchange. By evaluating new empirical evidence relating to race, class, and gender outcomes against the meso-level theories underlying the mandate, this Article argues that the process disempowers employees through deficits of information, individuated design, and employers’ resistance to costs. Nonetheless, there is growing momentum to replicate the mandate to accommodate pregnancy and other workers’ needs.

As the workplace is increasingly deemed essential to societal well-being, this new frame reveals the law’s design flaws and unfulfilled potential. In response, the Article proposes reallocations of power so that the state may: gather and publicize organizational precedent to facilitate structural analysis, regulation, and innovation at scale; legally recognize that dismantling ableist environments and antidiscrimination work are collective endeavors; and expand the social insurance model for accommodations. Perhaps, then, the ADA’s original vision of institutional transformation may become possible.

Keywords: disability law, civil rights, public law, private law, labor and employment, discrit, critical legal studies, regulatory theory

JEL Classification: J08, J15, K31, L22, L51