One of the hallmarks of the Americans with Disabilities Act (“ADA”), which prohibits discrimination in the workplace on the basis of disability, is that it defines “discrimination” to include “not making reasonable accommodations to the known mental or physical limitations of an otherwise qualified individual with a disability.” This concept of reasonable accommodation was seen as innovative in two ways. It recognized that employers must sometimes take affirmative steps or make adaptations to afford individuals with disabilities an equal opportunity to apply for and perform jobs. And it identified the failure to take such affirmative steps as a type of discrimination that would be just as actionable under the statute as a refusal to hire or other adverse employment action taken because of a person’s disability. In contrast to the first generation of civil rights laws that simply prohibited unequal treatment based on race, national origin, sex, and age, the ADA recognized that a one-size-fits-all approach does not always yield fair outcomes and that sometimes equity requires treating differently situated people differently.
However, this Article argues that the reasonable accommodations framework, which has transcended employment to dominate nearly every context in which people with disabilities interact with society (including K12 and post-secondary education), has had unintended, harmful consequences. Further, this Article argues that those consequences have hindered the ADA’s goals of integrating people with disabilities “into the economic and social mainstream of American life.”
By requiring that employers and educational institutions consider the accessibility of their work and learning environments only when a person with a disability arrives on the scene, the legal framework of reasonable accommodations reinforces the notion that inaccessible spaces, products, and ways of doing things are the default, to be altered if and only if a “special” person comes along who requires that something be done differently. Unfortunately, this after-the-fact approach to accessibility all too often stigmatizes workers and students with disabilities, has created unhelpful incentives and has led to far more litigation about the reasonableness of particular accommodations than actual progress in reducing the staggeringly high unemployment rate among people with disabilities.
This Article calls for moving beyond the reasonable accommodations framework while not dispensing with it entirely. Part I traces the concept of reasonable accommodations from its origin in the Rehabilitation Act to the Fair Housing Amendments Act to the ADA. Part I will also describe how this concept has come to permeate other areas of law affecting individuals with disabilities. Part II discusses alternative approaches such as universal design and inclusive design that consider how to build accessibility into products and the environment from the beginning and will profile a few successful examples of such “off-the-shelf accessibility.” Part III describes the advantages of “off-the-shelf accessibility” over reasonable accommodations from the perspective of individuals with disabilities in schools and the workforce, from the perspective of employers and educational institutions, and from the perspective of society as a whole. Finally, Part IV offers recommendations for how employers and schools can move from a purely accommodations-based paradigm to embracing more “off-the-shelf accessibility” and suggests law reforms and policy proposals to facilitate and accelerate that shift.