Unreasonable Accommodation and Due Hardship

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.” (2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; it is also subject to increase over time. (3) The accommodation duty entails mandatory departure from neutral workplace rules, effectively creating a preference for workers with disabilities, but one not to be confused with the affirmative action concept found in other anti-discrimination regimes. These conclusions are in some respects consistent with, and in other respects quite inconsistent with, leading judicial interpretations, including the single Supreme Court case on accommodations in employment, U.S. Airways v. Barnett. The Article will suggest avenues by which courts may be led back to the correct interpretation of reasonable accommodation by looking to the text of the statute and its legislative history, interpretations by the enforcing agency, judicial construction of analogous language elsewhere in the ADA, and precedent from other jurisdictions. For twenty years, judicial and scholarly attention focused on who is a person with a disability entitled to the protections of the ADA. Narrow readings of coverage kept many cases with accommodations claims from reaching decision on the merits. Recently, Congress enacted the ADA Amendments Act, vastly expanding the range of covered individuals. After the Amendments, attention will turn to what accommodations employers must provide. This Article is the first to return to the original sources to determine what Congress required and to analyze both Barnett and the lower court cases in light of that understanding