The ADA Anti-Backlash

Michelle Travis (San Francisco) has just posted on SSRN her article (forthcoming Tennessee L. Rev.) Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans without Disabilities.  Here's the abstract:

This Article applies Professor Derrick Bell's "interest convergence hypothesis" to the disability context. By identifying how the ADA benefits nondisabled workers, this Article challenges the notion that advancing equality for individuals with disabilities necessarily comes at the expense of the nondisabled workforce.

Many scholars have documented the socio-legal backlash against the ADA, particularly the ADA's reasonable accommodation mandate. This backlash is fueled in part by a belief that the ADA is a form of social welfare, rather than an antidiscrimination law, and that the accommodation mandate requires affirmative action or preferential treatment, rather than merely ensuring equal employment opportunities. More specifically, there is a growing sentiment that the ADA divides workers into two categories - those with disabilities and those without - and that workers with disabilities are benefiting at the expense of the nondisabled workforce.

Scholars have explored several strategies for unsettling this "us versus them" mentality. Some have proposed educating judges and the public that accommodation is really a form of equal employment opportunity, while others prefer embracing the affirmative action or preference labels and instead demonstrating that such legal protection is warranted. Others have attempted more directly to prove that accommodations impose lower costs on nondisabled workers than most people assume. This Article adds another strategy that thus far has been missing from this list: demonstrating to ADA opponents how the ADA affirmatively benefits them.

Identifying these benefits requires looking not just at the ADA's text and case law, but also at the workplace practices that the statute has required, inspired, or incentivized, which sociologists in the "new institutionalism" tradition have shown is crucial in assessing a law's impact. In taking an institutional approach, this Article demonstrates the variety of ways in which the ADA aligns the interests of workers with and without disabilities, rather than pitting them against each other in a zero-sum game, thereby giving all workers a stake in the ADA's future.

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