Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act

Source: Michelle A. Travis, University of San Francisco – School of Law, Research Paper No. 2015-17 May 14, 2015

From the abstract:
This Article reveals a new resistance strategy to disability rights in the workplace. The initial backlash against the Americans with Disabilities Act of 1990 (ADA) targeted protected class status by characterizing the ADA’s accommodation mandate as special treatment that benefitted the disabled at the expense of the nondisabled workforce. As a result, federal courts treated the ADA as a welfare statute rather than a civil rights law, which resulted in the Supreme Court dramatically narrowing the definition of disability. Congress responded with sweeping amendments in 2008 to expand the class of individuals with disabilities who are entitled to accommodations and to align the ADA with Title VII of the Civil Rights Act of 1964 by establishing nearly universal impairment-based antidiscrimination protection. While these amendments have largely dismantled the disability status barrier, employers and their attorneys are working to erect a new barrier with the ADA’s “otherwise qualified” provision, which requires plaintiffs to prove the ability to perform all of the “essential functions of the job” as part of a prima facie disability discrimination case. This Article shows how federal courts are using the concept of “essential job functions” to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs to again restrict access to accommodations and undermine the ADA as a universal civil rights law. By replacing “non-disabled” with “non-qualified” as the ADA’s new gatekeeper, this strategy effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.