THE ANTICIPATORY REASONABLE ADJUSTMENT DUTY: REMOVING THE BLOCKAGES?

The anticipatory reasonable adjustment duty, introduced by the Disability Discrimination Act 1995 and now found in the Equality Act 2010, has been hailed as an innovative and proactive tool for embedding disability equality in services and public functions. Despite important successes, the duty has had a surprisingly low profile in academic scholarship and has struggled to fulfil its practical potential. We seek to understand how this has happened, identifying a range of factors that may operate as blockages to the success of the duty. Whilst these factors are interrelated, we group them under three main headings – visibility, uncertainty and enforcement. We reflect critically on whether, and if so how, relevant blockages can be tackled to enable the duty to embed disability equality more effectively within services and public functions and whether new supplementary measures (particularly concerning accessibility) are also needed.

Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws

Critics have long maintained that the rights revolution and, by extension, the postwar turn to litigation as a regulatory tool, are the product of a cynical legislative choice. On this view, legislators choose rights and litigation over alternative regulatory approaches to shift costs from on-budget forms (for example, publicly funded social provisions, public enforcement actions by prosecutors or agencies) to off-budget forms (for example, rights-based statutory duties, enforced via private lawsuits). This “cost-shift” theory has never been subjected to sustained theoretical scrutiny or comprehensive empirical test. This article offers the first such analysis, examining a context where the cost-shift hypothesis is at its most plausible: disability discrimination laws, which shift costs away from social welfare programs by requiring that employers hire and “accommodate” workers with disabilities. Using a novel dataset of state-level disability discrimination laws enacted prior to the federal-level Americans with Disabilities Act (ADA) and a range of archival and other materials drawn from state-level legislative campaigns, we find only limited support for the view that cost shifting offered at least part of the motivation for these laws. Our findings offer a fresh perspective on long-standing debates about American disability law and politics, including judicial interpretation of the ADA and its state-level analogues and the relationship of disability rights activism to other rights-based political movements.