The greatest contribution of the Americans with Disabilities Act (ADA) to American jurisprudence is defining discrimination on the basis of disability as including the failure to make “reasonable accommodation to the known mental or physical limitations of a qualified individual with a disability.”
Congress defined the failure to accommodate, albeit, reasonably, as unlawful behavior. Instead of merely requiring equal treatment, (i.e., passive nondiscrimination), Congress required employers, state and local governments, and proprietors of places of public accommodation to act (i.e., accommodate disability).
The term “reasonable accommodation” is primarily associated with disability, but it first appeared in Title VII of the Civil Rights Act of 1964, which required that employers reasonably accommodate the religious practices of their employees unless doing so would result in undue hardship.
The Rehabilitation Act of 1973, signed into law by President Nixon, required federal agencies, contractors with those agencies, and recipients of federal funds such as state and local governments to make reasonable accommodations for employees and program participants with disabilities.
Similarly, the Fair Housing Amendments Act of 1988, passed two years before the ADA, defined a discriminatory practice as refusing to allow a person with a disability to make reasonable modifications to existing premises if necessary for full enjoyment.
The term “reasonable” modifies the term “accommodation” so that the ADA doesn’t require optimum accommodation—only reasonable accommodation if optimum accommodation would cause undue hardship.
The ADA will be 35 years old this July and the reasonable accommodation requirement has worked beautifully. Those with more resources have a greater responsibility than those whose resources are limited. Accommodation is reasonable until it becomes an undue financial or administrative burden. What is considered reasonable for a large, wealthy corporation may impose an undue financial burden on a smaller, less profitable company.
The opposite of reasonable is unreasonable and therefore those who fail to accommodate are deemed unreasonable. The drafters of ADA regulations and the agencies and courts that have enforced the ADA strive to enable accommodation in a manner that is not too costly, permits people with disabilities to enjoy the benefits of facilities used by the public, and affords them the opportunity to work effectively and advance in employment.
People with disabilities, their advocates, and the organizations that represent them are reeling from attacks on diversity, equity, and inclusion (DEI) – three words that were benign until the recent backlash. The elimination of governmental and employers’ DEI programs due to the current administration is frightening, but employers and the administration should beware. Unlike kindness and understanding, which are not required by law, reasonable accommodation (i.e., reasonable behavior), is mandatory. It’s the law, not an executive branch program that can be defunded or eliminated.
If the administration, for example, closes the civil rights offices in executive agencies, or lays off so many agency employees that there are not enough workers left to handle complaints, the ADA is still the law. Courts and private litigants will do the work of enforcement. Less will be accomplished, but reasonableness will prevail. As President George H.W. Bush said on the South Lawn of the White House as he signed the ADA into law, “in our America, the most generous, optimistic nation on the face of the earth, we must not and will not rest until every man and woman with a dream has the means to achieve it…let the shameful wall of exclusion finally come tumbling down.”
Opinions expressed are solely those of the writer(s) and do not necessarily reflect the opinions of Able News at The Viscardi Center and/or The Viscardi Center.