Mass Accommodations

Abstract

In the early phases of the COVID-19 pandemic, a profusion of modifications to workplaces, classrooms, and other commons created new forms of access at unprecedented scale. They belied our conventional understanding of whether and how institutions can dismantle structures and practices that create exclusion and harm. As decisionmakers improvised around traditional disability accommodations doctrine, these mass accommodations represented tens of millions of Americans problem-solving and experiencing structural access and safety over a concerted period. Notwithstanding the sheer diversity of access needs, by acknowledging them as mass accommodations we may advance theories of justice through critical organizational theory and competing models of political economy, thereby enabling policymakers, scholars, and advocates to counteract the trend of courts undermining laws that address disability and systemic discrimination.

This Article uncovers a new way to address structural exclusion: by raising and exploring the precedential value of mass accommodations within two normatively important institutions—worksites and schools. It demonstrates how we can gain theoretical ground in the changes experienced at scale in ways that must also account for institutional stratification along race and class that, catastrophically, excluded and ravaged millions as well. By studying mass accommodations through the lenses of universal design theory, the theory of racialized organizations, and aggregate litigation, I demonstrate how we may decenter doctrine and litigation and their often constricting effects, and tackle the complex relationships between race, disability, and work.

Keywords: civil rights; organizational theory; law and political economy; Critical Race Theory; DisCrit; disability studies; work law; labor and employment law

JEL Classification: J01, J11, J14, J15, J16, J20, J28, J32, J47, J48, J5, J52, J6, J7, J81, P48