"Rational Discrimination," Accommodation, and the Politics of (Disability) Civil Rights

Abstract

In the thirteen years since Congress enacted the Americans with Disabilities Act (ADA), many commentators have sought to draw a strong normative distinction between the statute's mandate to provide reasonable to people with disabilities and the antidiscrimination requirements of the civil rights laws that emerged in the 1960s and 1970s. This move has been most obvious among those who are skeptical of the ADA, but even most supporters of the ADA have taken the same view. The conventional wisdom, as evidenced by a near-consensus in the literature, seems to be that - whatever the descriptive similarities between them - there is a fundamental normative difference between antidiscrimination requirements and accommodation mandates: Antidiscrimination requirements call on employers to forego acting on illegitimate preferences (like aversive prejudice) that they ought not to have in the first place, while accommodation mandates prohibit employers from acting on the normally legitimate desire to save money. One goal of this Article is to challenge that widely held point of view. The Article's basic aim is to demonstrate that the ADA's accommodation requirement is fundamentally of a piece with the core antidiscrimination requirements of Title VII, but the Article also makes a more general argument about the fundamental normative similarity between antidiscrimination and accommodation. It seeks to show that the arguments that have been proffered for a strong normative distinction between antidiscrimination and accommodation are unpersuasive, and that the two modes of civil rights law have a great deal in common both practically and morally. Along the way, the Article contends that the notion of rational discrimination - of which the failure to accommodate is often cited as an example - is a conceptually unstable basis on which to build any normative theory of antidiscrimination law. The Article then engages the question of why so many people from so many perspectives place so much weight on what is ultimately a shaky normative distinction between antidiscrimination and accommodation. The Article contends that the antidiscrimination/accommodation distinction seems to serve an important political function for two somewhat different groups: mainstream liberal supporters of the 1960s civil rights revolution, who hope to protect traditional civil rights laws against the backlash that the ADA has provoked; and more radical leftist critics of identity politics, who hope to preempt liberal challengers by claiming that their critique is not directed at the statutes that emerged from that civil rights revolution. This move ultimately cannot do the work that mainstream liberal civil rights supporters or anti-identitarian leftists hope, but the political uses of the antidiscrimination/accommodation distinction are telling nonetheless.

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