The ADA was passed at a time where there was a very simplistic idea of what disability was. The ADA worked to expand the idea of what is defined as a disability. The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity, a person who has a history of such an impairment, or a person who is perceived as having such an impairment. In my opinion, this definition shifted away from the medical model that many people were using at the time and created a shift towards a social model understanding of disability. By including “a person who is perceived as having such a disability” in the definition of a person with a disability, the ADA is recognizing that it is not necessarily an “impairment” that causes a person to suffer from discrimination but it is society’s reaction to how it perceives a person. The legislation considered the social aspects of disability and began to see the way in which disability is a social construct in which a person could suffer from disability discrimination without ever actually having an impairment because of the way in which society “disables” any person it suspects of having a disability. While I praise the legislation for its expanded understanding of who should be considered in the definition of a person with a disability, I must critique the language commonly used in conjunction with the ADA.
The language of “reasonable accommodation” and “undue burden” is troublesome because of the way it evaluates a person’s experience in being discriminated and weighs it against the cost to society. This ultimately sets limits on the inclusion of people with disabilities in society and says that inclusion is only worth so much.
The “undue burden” language perpetuates the stereotype that people with disabilities are burdens to society. While I understand why a utilitarian analysis is used (by adopting an economic analysis of the cost and the benefit), I also recognize problems not only with this type of thinking, but also with the term used to refer to the analysis. By society commonly referring to this defense under the ADA and the “undue burden” defense, society is stressing the burden portion of the analysis.
Perhaps, this is reflective of the view on disability that much of society has. Often times, people with disabilities are seen as burdensome to society. The ableist mode of thinking that many people throughout society use includes an assumption that people with disabilities must rely on other people and cannot be self-sufficient. People who think like this tend to believe that people with disabilities are burdensome to those friends and family members without disabilities who have to take care of the person with the disability. Not only is this way of thinking dangerous because of the way in which it relies on underlying stereotypes and assumptions related to disabilities, but it is also dangerous in that it overlooks the benefits that people with disabilities bring to society. Yet, we included this type of language in the law. By focusing on the defense of “undue burden,” the language in the ADA is focusing on the burden to society of including people with disabilities. While the law technically includes an analysis as the benefits as well, the language commonly used (“the undue burden defense”) demonstrates that although the benefit is to be considered, it should not be the focus. Perhaps, the language should say something similar to “evaluating the positive effects” or “benefit analysis” if the defense is to continue to be included.
While the ADA cause some progress towards creating equality for people with disabilities in society, the ADA also could improve on some aspects. As a society, we should strive not only to change the law to make it better, but also to change society’s perceptions so that a civil rights law, such as this one, is not needed.