Citation: 157 U. Pa. L. Rev.

PENNumbra 21 2008
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CASTE AND DISABILITY: THE MORAL
FOUNDATIONS OF THE ADA
CASS R. SUNSTEIN
t
In response to Elizabeth F. Emens, Integrating Accommodation, 156 U.
PA. L. REV. 839 (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 the 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.
1 See the discussion of the "natural lotteiy" in JOHN RAWLS, A THEORY OF JUSTICE
64-65 (rev. ed. 1999).
2 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, The Anticaste 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).
5 Id.
at 2429.
6 See Vande Zande v. Wis. Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir 1995)
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 are not required to "expend enormous sums in order to bring
about a trivial improvement in the life of a disabled employee").
7 See Elizabeth Emens, InlegmtingAccommodalion,
156 U. PA. L. REV. 839 (2008).
Id. at 846-59.
Id. at 851.
10
Id.
11 Id. at 848.
12 Id. at 916-19 (acknowledging and answering this objection).
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23 UNIVERSITY OFPENNSYLVANIA LAWPEVIEW [Vol. 157:21
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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.
13
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. at 869-75 (discussing the failure of judicial opinions to consider third-party
benefits).
15 Id. at 845-59 (identifying the variety of third-party benefits that might be created
by accommodations).
1 Id. at 861-66 (providing a basic spectrum for the weighing of third-party costs
and benefits created by ai accommodation).
CASTE AAD 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 her argument have every-
thing to do with an anticaste principle of a Rawlsian kind-indeed, I
17 See sulna text accompanying
note 2.
Is See Adam M. Samaha, What Good is the Social Model (I Disability?, 74 U. CHI. L.
REv. 1251 (2007) (claiming that the social model of disability assumes no policy or
normative considerations).
1 See Emens,
suIna note 7, at 889 n.158.
20 Samaha, suna note 18, at 1253-54 ("The social model ... has essentially nothing
to say about which [normative] framework to use.").
21
See soturce cited stipra niote 1 and accompanying text.
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25 UNIVERSITY OFPENNSYLVANIA LAWPEVIEW [Vol. 157:21
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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. Emens is concerned with two kinds of third-
party benefits: usage benefits and attitudinal benefits..
2 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
22 Emens, supia note 7, at 848.
CASTE AAD 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. at 842-43, 851-52.
24 Wi. at 912-13.
2, i. at 896.
26
Id.
27
Id.
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27 UNIVERSITY OF PENNSYLVANIA LAW PEVIEW
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[Vol. 157: 21
Preferred Citation: Cass Sunstein, Response, Caste and Disability: The
Moral Foundations of the ADA, 157 U. PA. L. REV. PENNUTMBRA 21
(2008), http://www.peinnnbra.coin/responses/10-2008/
Stmstein.pdf.