One Not like the Other: An Examination of the Use of the Affirmative Action Analogy in Reasonable Accommodation Cases under the Americans with Disabilities Act

This Article discusses the debate within the courts regarding the employer\u27s affirmative obligations under the ADA\u27s reasonable accommodation clause by focusing on the use of the affirmative action analogy. The purpose of this Article is to examine the evolution of the affirmative-action analogy in reasonable-accommodation case law over time and to decipher its meaning and relevance. At the onset, it is important to establish a few definitions and assumptions. First, the affirmative-action analogy refers to cases where courts liken or compare the plaintiff\u27s reasonable-accommodation request to affirmative action. Specifically, the Article examines cases where the term affirmative action explicitly appears in the text of a court opinion where a reasonable accommodation claim is at issue in the case. Second, the Article does not present a stance on whether reasonable accommodation is a type of affirmative action. Instead, the Article presents an overview of case law and legal scholarship to support both sides of the debate regarding that question. Rather than contribute to what is already an extensive debate on that question, this Article seeks to demonstrate that there are several different definitions of affirmative action at play in the reasonable accommodation case law, and not all uses are based on the preferential treatment definition-a focus of much of the commentary on the matter. Although these different definitions of affirmative action are present in court opinions, they are regarded as one monolithic definition, which confuses the analysis across cases an