Washington Law Review


The Americans with Disabilities Act (ADA) creates and protects employment opportunities for disabled persons by prohibiting adverse employment actions in the form of disparate treatment and disparate impact. Additionally, subparts (A) and (B) of § 12112(b)(5) of the ADA place distinct duties on employers to accommodate disabled persons, protecting, respectively, existing and future employment opportunities. Because the ADA protects both existing and future opportunities, the duty to accommodate may be breached in two distinct manners. When a plaintiff alleges failure to accommodate, a court must determine which section of the ADA applies and select an appropriate analytical framework for the claim. One commonly used framework is the McDonnell Douglas framework, which was created to enable Title VII plaintiffs to prove discriminatory intent using indirect, circumstantial evidence. The McDonnell Douglas framework has been extended to the analysis of discrimination claims arising under the ADA. While the federal circuit courts of appeals approve of the use of the McDonnell Douglas framework for ADA disparate treatment claims, the circuits are split regarding the applicability of the framework to ADA failure to accommodate claims. This Comment argues that McDonnell Douglas is applicable to failure to accommodate claims arising under subpart (B) but not to claims arising under subpart (A). First, there is a critical distinction between the subparts: whereas the proscribed discrimination under subpart (A) results from a failure to accommodate, the proscribed discrimination under subpart (B) results in a failure to accommodate. Second, unlike claims arising under subpart (A), an employer's intent is the central issue in claims arising under subpart (B). Third, unlike claims arising under subpart (A), claims under subpart (B) are analogous to disparate treatment claims. By distinguishing between the two types of claims, a court is able to select an analytical framework consistent with the protection afforded by the ADA.

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