disability, health, experiential health, functional health, illness, social construction, discrimination, employment discrimination, reasonable accomodation, ADA, ERISA
Despite a decade of litigation, there is no consistent understanding of the reasonable accommodation requirement of Title I of the Americans with Disabilities Act of 1990 (the 'ADA'). Indeed, there are three inconsistent distributive outcomes that appear to comport with the reasonable accommodation requirement: cost-shifting, cost-sharing, and cost-avoidance.
One reason for such inconsistent outcomes is a failure to develop a coherent and consistent theory of disability. Because disability has been and continues to be medicalized, this Article takes a fresh look at the medical literature on health, illness, and disability. It recommends the use of the experiential health model over the currently accepted functional health model to understand disability in the context of the ADA because it captures the contextual, socially-constructed, and political nature of disability.
A second, related reason for inconsistent outcomes is an ambivalent attitude toward the costs of antidiscrimination law, often expressed as a tension between efficiency and rights. This Article examines disability-based discrimination in the workplace in this context, revealing the underlying tension between disability discrimination as a civil rights issue, and the view of disability discrimination as a social safety net issue.
Using a theory of disability informed by an experiential definition of health and the distributive analysis to evaluate the three distributive outcomes demonstrates that, although flawed, cost-shifting is the best outcome because it embodies a social-experiential model of disability and the potential for both socioeconomic and political reconstruction.
Pendo, Elizabeth, Disability, Doctors and Dollars: Distinguishing the Three Faces of Reasonable Accommodation. U.C. Davis Law Review, Vol. 35, No. 5, pp. 1175, June 2002.