Caste and Disability the Moral Foundations of the ADA

8/11/2019 Caste and Disability the Moral Foundations of the ADA

1/8

Citation: 157 U. Pa. L. Rev. PENNumbra 21 2008

Content downloaded/printed from

HeinOnline (http://heinonline.org)

Sat Apr 26 11:44:36 2014

-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license

agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from

uncorrected OCR text.


2/8

CASTE AND DISABILITY:

THE

MORAL

FOUNDATIONS

OF THE ADA

CASS R. SUNSTEIN

t

In response

to

Elizabeth

F. Emens, IntegratingAccommodation

156 U.

PA.

L. REV.

39 (2008).

The

Americans

with Disabilities Act

(ADA) combats

certain forms

of

social

exclusion, which produce

second-class

citizenship for many

millions

of

Americans. The ADA appears

to

reflect

a judgment that

the physical

and cognitive

impairments

that produce

disability are

irrelevant

from the moral

point

of view,

in

he sense that

they result

from

an accident

of

nature;' people should not

be blamed for being

blind,

deaf, wheelchair bound,

or depressed. But because

of those

impairments, disabled people are excluded

from multiple

domains,

including the workplace. The

duty

of

reasonable accommodation

is

the ADA's statutory

response. On this account, the ADA should

be

regarded

as

the clearest reflection,

in American law,

of

an anticaste

principle

4

-a

principle that

raises

questions

about

social and legal

practices that turn a

morally

irrelevant difference into a

systematic

source

of

social disadvantage.'

Of

course,

the

duty of reasonable

accommodation is

not absolute.

As

it

is

now

understood, that

duty

embodies

a

requirement of

cost-

benefit analysis, at least in the loose sense that employers

are not re-

quired

to

undertake measures

whose

costs

are

grossly disproportion-

ate

to their benefits. But what

are

the costs

and

benefits of accom-

*Felix

Frankfurter

Professor

of Law, Harvard Law School;

Harry

Kalven Visiting

Professor of

Law,

University of

Chicago

Law

School,January

2009.

See the

discussion

of the

natural

lotteiy

in JO N

RAWLS, A

THEORY

O USTI

64-65 rev. d 1999).

See

e.g.

42

U.S.C.

12101(a)

7)

(2000)

(finding

that

individuals

with

disabilities

face

restrictions and limitations based upon characteristics that are beyond

their

con-

trol .

See42

U.S.C. 12112(b)(5)

(2000).

4

See Cass

R.

Sunstein,

he

nticaste

Privcipce

92

MICH.

L.

REV.

2410,

2428-33

(1994) (asserting that there is

an underlying principle in American society that no

members

of any one

group should

be treated

as

second-class citizens).

Id

at

2429.

6

ee

Vande

Zande

v.

Wis.

Dep't

of

Admin.,

44

F.3d

538,

542-43

(7th

Cir

1995


3/8

CASTE AAD DISABILITY

modation? Perhaps the most significant contribution of Elizabeth

Emens's important

and imaginative article'

is

the

suggestion that

thus

far, too little attention has been paid to the existence of

third-party

benefits -benefits

to

those,

including

able-bodied

people,

who did

not

request

the

accommodation

in question. If,

for example,

an

em-

ployer

is required to accommodate asthmatic

workers

by providing

a

smoke-free environment, many

nonasthmatic

employees will also

benefit.9 Similarly, if

an employer

is

required

to purchase

lifting

equipment

that accommodates workers

who

cannot lift, other workers

are

likely to gain from

the reduced physical

strain.

In

this

brief

Response, I want

to sketch a

tempting objection to

Enens's

argunent one

that she herself recognizes- and then to

show

that the objection

is unconvincing, in a way

that helps to

illumi-

nate the moral

and

political

foundations of her argument and,

in-

deed,

of

the

ADA

itself. In

brief, I

think that Emens's

claims

can be

seen as

being animated

by a

suggestion

that it is not merely

crude, but

damaging,

to

divide

the world into two

kinds : those who

are able-

bodied and those

who

are

not.

Her emphasis

on

third-party

benefits

and her distinction between usage

benefits

and

attitudinal

benefits

should

be taken

as

an

effort

to

deepen

our

understanding of the ADA

by showing how conventional divisions

between kinds

help

to

create

the

very

problem that the ADA

is

intended to eliminate. By recogniz-

ing

third-party

benefits, particularly benefits to

those who are not dis-

abled, we can take a significant step toward eliminating

those

divi-

sions.

The

tempting objection to Emens's argument, in

a

nutshell,

is

that

because the

goal

of

the

ADA

is

to

reduce

the

exclusion-and

hence

the

subordination-of disabled people,

an emphasis

on third-party

benefits is

a distraction,

and potentially

a

damaging

one.

2

Suppose

that an employee asks for an accommodation

in the form of telecom-

muting; perhaps

the employee

is being treated for depression

or

an

anxiety disorder and needs to

spend significant time away from the

workplace.

It

is

possible

that

if

the

employer adopts

a

new

policy

that

(holding that employers

re

not required to expend enormous sums in order to bring

about a

trivial improvement

n the

life

of a disabled

employee ).

7

See Elizabeth

Emens,

InlegmtingAccommodalion

156

U.

PA.

L.

REV

39

(2008).

Id at 846-59.

Id t 851

1

Id

d t 848.

12

Id

t 916-19 (acknowledging

and answering this objection .

2 81


4/8

23 UNIVERSITY

OFPENNSYLV NI

L WPEVIEW [Vol. 157:21

PENNu

mbra

allows people to work at home, numerous employees will benefit. But

if courts emphasize

this point, the objection

continues, they

would

seem to be

construing the ADA

in

a way that loses sight of and even

obscures

its

fundamental

goals. Why

should

the rights

of

disabled

people

depend

on the

extent

to which

third

parties

benefit

from rec-

ognition of

those

rights?

As

Emens emphasizes,

we

are dealing with

the

Americans

with

Disabilities

Act,

not

the

Americans

Act.

1

3

At

the

same time,

Emens's

suggestion

would

seem

to require

courts

to

undertake an inquiry for which they lack

adequate tools;

how can judges assess, in a

meaningful way,

the overall

or

aggregate

benefits

of a large-scale

change in attendance

policy?

The same ques-

tion

might be raised

about any requested

accommodation that

confers

benefits on third parties.

The

initial response

to this

objection

is

straightforward:

so

long

as

the idea of reasonable accommodation is

taken

to call

for an

assess-

ment

of

both

costs and

benefits, courts

should

take

account

of third-

party benefits,

simply

because those benefits are part

of

what matters

to that

assessment.

If courts neglect

third-party

benefits, their assess-

ment will be

partial and distorted. As Emens demonstrates, an analy-

sis

that focuses only on the benefits to the disabled person, neglecting

other benefits,

will

be badly incomplete

4

For this reason, it is mis-

leading to ask whether

the

rights

of

disabled people should

depend,

in

part,

on the benefits

of

accommodation for those who are able-

bodied.

The

statutory

question

is

whether

an

accommodation is

rea-

sonable-and

an accommodation that would not

be reasonable if only

a few

people benefit from it might

well be

reasonable

if

many do so .

It is true

that

an assessment of

costs and benefits may

strain

judi-

cial

capacities. But

as

Emnens

shows, there are situations in

which

the

benefits to third parties are

significant,'5

and when deciding whether

an accommodation is reasonable, it is foolish and

inconsistent

with

the statute to

disregard them. Courts might well be able to develop

rules of thumb

that

enable them to decide whether the third-party

benefits

are

substantial

or

trivial.

Indeed,

Emnens s

own analysis goes

a

long

way

toward

supplying

the

foundations

of

such

rules.'6

11I.

at

883.

14

1I

t

869-75

(discussing

the

failure

of

judicial

opinions

to

consider

third-party

benefits).

15

d at

845-59

(identifying

the

variety

of

third party

benefits

that

might

be

created

by

accommodations).

Id

at

861-66

providing

a

basic

spectrum

for

the

weighing

of

third-party

costs

and benefits created

by

i

accommodation).


5/8

CASTE D

DISABILITY

But there are more fundamental issues in the background.

Workplace

practices are constructed by

and for

people

with

certain

physical and

mental characteristics.

We can

easily

imagine alternative

worlds in which

human

beings

had

very

different

physical

and mental

characteristics

and

in

which workplaces

were

constructed

for those

people. Imagine, for example,

a world

consisting

solely

of blind peo-

ple, or deaf

people,

or people facing serious anxiety issues, or people

unable to

lift

more than ten

pounds,

or people without

legs. In these

imaginable worlds, workplaces would be

constructed

in a way that

would fit their needs. Indeed, we could easily imagine alternative

worlds

in

which human capacities, both physical and cognitive, were

far beyond the

current

norm. In

such

worlds, practices and expecta-

tions would be radically different, and those with existing capacities

would find

themselves

at

a

systematic

disadvantage.

I have urged that

the

ADA

is best taken to

suggest that that

in

our

world,

morally

irrelevant

differences have been

turned,

without

suffi-

cient justification, into

a systematic

source

of social

disadvantage.

7

This

is the sense in

which

it

is

true that many

of the disadvantages

produced

by disability are socially constructed-under different social

arrangements, those

disadvantages

could

be

reduced

or

even elimi-

nated. Indeed, the

ADA attempts to

do exactly that.

But as

Adam

Samaha has

argued,s

and as Emens recognizes,' the social construc-

tion

of disadvantage

is a

mere fact,

rather

than

a political

or moral

ar-

gument,

and an argument

of

that sort is necessary to make

sense

of

the

ADA.

2

The most convincing such

argument

is

Rawlsian in spirit

2

'

it

stresses

the need to ensure that unfortunate outcomes in the natu-

ral

lottery

(blindness, deafness,

impaired mobility)

are

not translated

into very

bad

or tragic outcomes.

For

her part,

Emens is largely agnostic

on the moral foundations

of

the ADA. In arguing for recognition of

third-party benefits, she

does

not attempt

to

take any

particular stand

on

the foundational

is-

sues.

But I believe that the

moral roots

of

h r argument have every-

thing

to

do

with

an anticaste

principle of

a

Rawlsian

kind-indeed,

I

7

See

sulna

text

accompanying

note

2.

Is

See

Adam

M. Samaha,

What

ood

is

the

ocial

Model

I

Disability?

74

U.

CHI.

L.

REv. 1251 (2007) (claiming that the social model of disability assumes no policy

or

normative considerations).

See

Emens,

suIna

note

7

at

889

n.158.

20

Samaha,

sun

note

18

at 1253-54

( The

social

model

has

essentially

nothing

to

say about

which [normative] framework to use. ).

21

See

sotur e

cited stipra niote

1 and

accompanying text.

2 8


6/8

25 UNIVERSITY

OFPENNSYLV NI

L WPEVIEW

[Vol. 157:21

PENNu

mbra

believe

that

Emens's claims offer

an

intriguing and novel twist on how

that

principle

should be

understood, at

least in the context

of

the

ADA

Let

me

elaborate.

mens

is

concerned

with

two

kinds

of third-

party

benefits:

usage benefits and attitudinal benefits..

2

If

for

exam-

ple,

an employer adopts a broad-based

telecommuting policy, many

workers

will gain

simply

because they can

take

advantage

of that

pol-

icy.

Alternatively, coworkers'

experience with

the accommodation

might

alter

their

attitudes

toward disabled

people and

the ADA

They

might,

for

example, think

of disabled

people

not

as

abstract, frighten-

ing, or contemptible others, but instead

as

fellow

human

beings

struggling with a

difficult

(but not

insuperable)

condition.

Indeed,

they

might

even

come to

think

that

disabled people struggle in part

because

of

social

practices

that might

be

otherwise-they

might

come

to

see how the

practices,

and not the

condition, help to

constitute the

disability. Or

they

might come to conclude that

the

ADA is not an

il-

legitimate and somewhat confusing

imposition into

the workplace but

is instead

an

effort

to ensure

that

those who are, in

relevant

respects,

similarly situated are

given

a

decent

chance to work

on similar

terms.

When

accommodations

produce usage and attitudinal

benefits,

they promote the integrationist goals of

the ADA in a

way

that we

would not see

if

we were to

focus

solely

on

the benefits

to

the disabled

person.

Most

people benefit from cleaner air or from reduced physi-

cal strain. If

nondisabled people gain from an

accommodation, then

they should be able

to see

that

disabled people are less fundamentally

different

than

they

might

have thought.

Too many able-bodied

peo-

ple

do not know or do not work with people who

are blind, deaf, or in

wheelchairs. Too many nondisabled people

do not

know,

or at least

do not know that they know, people with serious psychological prob-

lems. If nondisabled people are actually

working

with

disabled peo-

ple,

the

very

fact of

integration should help to combat

the

establish-

ment of second-class

citizenship. To the

extent that accommodations

are made

and

are

visible,

and

to

the

extent that

they

benefit

a wide

range

of

people,

the

anticaste

goals

of

the

ADA will

be

significantly

promoted-not in spite of the emphasis on third-party benefits but be-

cause

of

that

very

emphasis.

As I

read Emens,

her

exploration

of third-party benefits is ani-

mated in large part

by

a

sense that the ADA should be

understood

to

combat

the idea that

disabled people

and

able-bodied

people

are

Emens, supi not 7

at

848.


7/8

CASTE D

DISABILITY

fundamentally

different

from one another. Consider, for example,

her emphasis

on those

who have

some kind of impairment, but not

enough to obtain the protection of the statute;

2

her

emphasis on the

importance

of

publicizing

third-party benefits;

2

her

rejection

of

the

idea

that the

ADA is a

kind

of one-way redistribution;,

2 5

and

her

ob-

jection to a view that would accept the baseline

set

by existing prac-

tice When Einens stresses the effort to interrogate the world as it

is

currently

structured,

2

I

think

that what she

wants to challenge

is

a set

of structures

that separates the world

into

two distinct kinds: those

who

are

able and

those

who

are

not.

A recognition of third-party

benefits

breaks

down that

distinction.

It suggests that there is a

con-

tinmln here, not

a

sharp dichotomy, and that the perception of

a

di-

chotony is

not a reflection of brute facts but itself a product of social

and

legal

practices

that

could be

otherwise.

Of course, it is true that because of the natural lottery, some peo-

ple are

bound to have a harder time

than others

and that for

certain

purposes,

it

makes

sense

to

think

in terms of dichotomies.

Those who

cannot hear, see, or walk

lack

certain

capacities; those who

suffer

from

chronic depression or from acute anxiety face obstacles that no re-

structured workplace

can

eliminate.

Emphasizing

this

point

a

famil-

iar understanding

of

the ADA-rooted in the idea

of

a natural

lottery

and a commitment to charity-says there but for the grace of God

go I.

But

there is

a

less familiar understanding which questions the

familiar

one,

which does not invoke charity at all. For those

who hold

this

different

understanding,

the purpose of

the

ADA, rightly con-

ceived, is to break down distinctions that

have

their current force

only

because

of

social

practices

that have

been

so

taken for granted that

they

are often unseen

as

practices

at

all.

I believe

that the

less

familiar

understanding is the better one and

that Emens is speaking firmly on its

behalf. In my view, her emphasis

on

third-party

benefits,

and her insistence

on their importance,

is best

seen not as a diversion from the fundamental goals

of the ADA, but as

an effort

to

reconceive

and

deepen

them.

23

Wi

t

842-43, 851-52.

4

Wi

t 912-13.

2

i t

896.

6

Id

27

Id.

2 8


8/8

27

UNIVERSITY

OFPENNSYLVANIA

LAW PEVIEW

PENNumbra

[Vol.

57: 21

Preferred

Citation:

Cass

Sunstein, Response,

Caste

and

Disability

The

Moral Foundations

of

th ADA 57 U. PA L REV PENNUTMBRA 21

2008), http://www.peinnnbra.coin/responses/10-2008/

Stmstein.pdf.

Caste and Disability the Moral Foundations of the ADA

Documents

Transcript of Caste and Disability the Moral Foundations of the ADA