Bargaining for Integration

Shirley Lin (New York University), Bargaining for Integration, 96 N.Y.U. L. Rev (Forthcoming, 2021):

The Americans with Disabilities Act (“ADA”) accommodations mandate requires employers to restructure exclusionary environments to enable their employees with disabilities to continue working. Under a virtually unexamined aspect of the mandate, however, the law requires employers and employees to negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis. Although the very existence of the mandate has been heavily debated, the scholarship yet to acknowledge that the ADA is actually ambivalent to the parties’ relative power to effect organizational change through bargaining. This Article is the first to critique the law’s interactive requirements. By evaluating new empirical evidence relating to race, class, and gender and the theories underlying its approach, it argues that the interactive process disadvantages employees through deficits of information, its individuated design, and employers’ resistance to costs. Nonetheless, there is growing momentum to replicate the mandate to accommodate pregnancy and other workers’ needs. Even if these proposals are enacted, their effectiveness in integrating additional workers may be similarly stymied. As the workplace is increasingly understood as essential to societal well-being, this alternative framework for evaluating accommodation law’s potential suggests new structural approaches to publicize organizational precedent, enhance collective approaches to dismantling ableist work environments, and expand the social insurance model to replace cost-shifting for accommodations onto employers.