Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [74]
No surprise, then, that progressive lawyers like my friend think of the accommodation principle as legal penicillin. They have sought to extend that principle from religion and disability to race, sex, and sexual orientation. As law professor Linda Krieger puts it, the ADA’s passage raised the hope that “the theoretical breakthrough represented by reasonable accommodation theory would eventually play a role in solving other equality problems, which the more broadly accepted equal treatment principle had proven inadequate to redress.”
Unfortunately, the optimism of these lawyers and scholars has been unfounded. Far from extending the accommodation principle, courts have limited it in the contexts of religion and disability. In 1986, the Court upheld an air force uniform regulation that prohibited a Jewish rabbi from wearing a yarmulke. Because courts must defer to the military, it was unclear whether that analysis would apply in civilian contexts. In 1990, however, the Court upheld a denial of unemployment benefits to two members of a Native American church because they had smoked peyote, even though they had done so for sacramental purposes.
The duty to accommodate was harder to read out of the ADA, given the plain wording of the statute. But the Act requires the “reasonable accommodation” only of individuals who qualify as “disabled.” So the Court ingeniously applied its ethic of assimilation to the definition of disability, holding in the 1999 case of Sutton v. United Air Lines that individuals would qualify as disabled only if their condition was immutable.
That interpretation might seem innocuous, given the common presumption that most people would want to correct their disabilities. But some people with disabilities—like deaf individuals who reject cochlear implants—choose not to correct them. The Court’s interpretation also permits employers to discriminate against people even when they are willing to correct their condition. In Sutton, United Airlines required pilots to have perfect uncorrected vision, rejecting Karen Sutton because she had only perfect corrected vision. If Sutton had triggered the accommodation requirement, United would have had to defend its rule. It may have been able to do so—an anxious flyer myself, I can easily conjure the scene in which the pilot hunts for her dropped contact lens as the plane plummets toward an Alp. But Sutton might have suggested effective safeguards less burdensome on the visually impaired, such as requiring pilots to carry a backup pair of glasses. We don’t know how that conversation would have gone, as the Court preempted it. Once it found Sutton’s condition was mutable, it decided she was not disabled, and hence not entitled to accommodation.
Given that the law protecting religion and disability was crafted to require accommodation, I was initially perplexed by the court’s continued preference for assimilation in these areas. I soon realized the source of that preference lay outside the cases. “The life of the law,” Oliver Wendell Holmes once said, “has not been logic: it has been experience.” What Holmes meant is that doctrinal formulations are less important to the law’s development than the cultural experience in which those laws are embedded.
The Court has bunkered into an assimilationist posture to weather the explosion of identity in the United States. Already the most diverse industrialized democracy on earth, we are in the midst of a pluralism supernova. That explosion has raised the fear that we are seeing, in historian Arthur Schlesinger’s terms, “the disuniting of America.” Schlesinger