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Journal Article

Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination

Michael Ashley Stein
University of Pennsylvania Law Review
Vol. 153, No. 2 (Dec., 2004), pp. 579-673
DOI: 10.2307/4150664
https://www.jstor.org/stable/4150664
Page Count: 95
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Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination
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Abstract

The Americans with Disabilities Act (ADA) was heralded as an "emancipation proclamation" for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this prevalent belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with perceived atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA's transformative agenda.