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40 Law & Phil. 1 (2021)

handle is hein.journals/lwphil40 and id is 1 raw text is: Law and Philosophy (2021) 40: 1-31 © Springer Nature B.V. 2020 https://doi.org/10.1007/s10982-020-09384-5 JEFFREY M. BROWN* WHAT MAKES DISABILITY DISCRIMINATION WRONG? (Accepted 31 March 2020) This paper concerns the question of what makes disability discrim- ination morally objectionable. When I refer to disability discrimi- nation, I am focusing solely on a failure or denial of reasonable accommodations to a disabled person. I am doing so for two reasons. First, what is foundational about disability law and policy is that a failure to make a reasonable accommodation for a disabled person is illegal discrimination in many contexts unless the employer or other covered entity demonstrates that the accommodation causes an undue hardship.1 Second, many legal scholars argue that a failure or denial of reasonable accommodations constitutes a type of wrongful discrimination.2 Reasonable accommodations are modifications and adjustments to social institutions, public spaces, and jobs that allow a disabled person to enjoy the same benefits and privileges as a nondisabled person within a specific legal context. Accommodations usually take two forms. The first is physical alterations to workplaces or areas of public accommodations, such as installing ramps or elevators. Sec- ond, accommodations alter the structure of social institutions and jobs, such as work schedules, providing sign language interpreters, etc.3 Reasonable accommodation mandates are now a ubiquitous 1 42 U.S.C. § 12112(b)(5)(A). There is also a defense that an individual shall not pose a 'direct threat' to the health and safety of other individuals in the workplace. See 42 U.S.C. § 12113(b). Speaking broadly, the ADA prohibits disability discrimination by employers, state and local governments, and in areas of public accommodation. 2 Many legal scholars have argued that a failure to accommodate is a kind of wrongful discrimi- nation. See Samuel Bagenstos, Law and the Contractions of the Disability Rights Movement (New Haven, CT: Yale University Press, 2009); Christine Jolls, 'Antidiscrimination and Accommodation', Harvard Law Review 115 (2001), pp. 642-699; and Sharon Rabin-Margalioth, 'Anti-Discrimination, Accommodation and Universal Mandates - Aren't They The Same?', Berkeley Journal of Employment and Labor Law 24 (2003), pp. 111-152. 3 Michael Ashley Stein, 'The Law and Economics of Disability Accommodations', 53 Duke Law Journal 79 (2003).

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