Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities

This Article explores the marginalization of two groups of employees—individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the idealworker norm. The need for accommodation causes both groups of employees to suffer from “special-treatment stigma,” which manifests itself in resentment by coworkers about the special benefits these employees receive, and in employers’ reluctance to hire these employees because of the real or perceived costs of employing such individuals. Despite these similarities, the law deals with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities. This Article explores why the law treats these groups of employees differently. It addresses many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and that are therefore used to justify their different treatment under the law. But this Article ultimately concludes that these distinctions, once unpacked, do not justify the law’s different treatment of the two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together—special-treatment * Nicole Buonocore Porter, Professor of Law, University of Toledo College of Law; Visiting Professor of Law, University of Denver Sturm College of Law (2012–2013). I would like to thank Rachel Arnow-Richman, Chai Feldblum, Beto Juarez, Helen Norton, Nantiya Ruan, and Michelle Travis for their helpful thoughts and comments. I would also like to thank participants at the Rebranding Disability Rights Law Symposium at Berkeley Law School in March 2012 and the Seventh Annual Colloquium in Labor and Employment Law in Chicago in September 2012 for their helpful comments and suggestions on prior drafts of this Article. Finally, I would like to thank Amy Knapp, at the University of Denver Sturm College of Law, for her valuable research assistance. 1 Porter: Mutual Marginalization: Individuals with Disabilities and Workers Published by UF Law Scholarship Repository, 2015 1100 FLORIDA LAW REVIEW [Vol. 66 stigma. Thus, this Article explores whether a combined legal and theoretical approach to eliminating the special-treatment stigma is feasible and defensible. Specifically, this Article seeks to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities. INTRODUCTION 1101 I. COMMON BOND 1103 A. Cannot Conform to Ideal-Worker Norm 1104 B. Special-Treatment Stigma 1108 1. Employers’ Reluctance to Hire and Accommodate 1109 2. Resentment by Coworkers 1111 II. UNJUSTIFIED DIFFERENCES? 1116 A. Difference in the Law 1116 B. Justifying These Differences? 1119 1. Conservatives and the Private Sphere 1120 2. The Goal of Independence Under the ADA 1121 3. The Numbers Problem 1123 4. The Rhetoric of Choice 1124 a. Some Disabilities Are Caused by Voluntary Actions 1124 b. The Myth of the Caregiving Choice 1125 5. Stigma 1127 III. ENDING MUTUAL MARGINALIZATION 1131 A. No Special Treatment 1131 B. Universal Accommodation 1133 C. Justification for Accommodating Individuals with Disabilities and Caregivers 1138 1. The Workplace Community 1141 2. The ADA Benefits Nondisabled Employees 1143 3. Accommodating Caregivers Also Benefits Non-Caregivers 1148 4. Logistics of Accommodating Caregiving 1151 CONCLUSION 1152 2 Florida Law Review, Vol. 66, Iss. 3 [2015], Art. 4 http://scholarship.law.ufl.edu/flr/vol66/iss3/4 2014] INDIVIDUALS WITH DISABILITIES AND WORKERS WITH CAREGIVING RESPONSIBILITIES 1101