Wednesday, December 15, 2010
In this Review Essay, I reveal the considerable contribution made by Professor Samuel Bagenstos in his book, Law & the Contradictions of the Disability Rights Movement, where he acknowledges and tackles most of the contradictions and tensions within the disability law field. Instead of repeating familiar arguments about a backlash against the Americans with Disabilities Act (ADA), Bagenstos recognizes and explains that much of the lack of success of the ADA can be attributed to tensions in the goals and projects of the disability rights movement. He makes a very convincing argument that the anti-discrimination and accommodation model of the ADA, while worthwhile and therefore worth preserving and reinforcing, has limitations that cannot be overcome simply by amending the ADA. Instead, Bagenstos argues that we need to explore social welfare interventions and we need to tailor them in such a way as to avoid “unnecessary paternalism and dependence.”
While Bagenstos does an admirable job exploring and suggesting solutions to most of the tensions in the disability law area, the one that he does not explore is a conflict that I believe will be pivotal as courts begin deciding cases after the ADA Amendments Act of 2008. Because the Amendments have made it easier for individuals to pass the threshold issue of coverage, more courts will be forced to analyze the underdeveloped reasonable accommodation provision in the ADA. Many of these cases will involve the tension that arises when the accommodation needed by an individual with a disability conflicts with the rights or interests of other employees in the workplace. This Review will discuss this conflict, exploring a resolution that draws support from the lessons learned in Bagenstos’s book, while infusing the discussion with a communitarian influence.