Abstract

Although enacted with widespread support, the Americans with Disabilities Act ("ADA") spawned a deluge of litigation and a startling diversity of judicial interpretation on a host of key issues. Disputes concerning the breadth of the statute's definition of "disability" initially garnered the bulk of judicial attention. More recently, the judicial focus has shifted to the ADA's reasonable accommodation requirement. In U.S. Airways, Inc. v. Barnett, the Supreme Court's first foray into reasonable accommodation territory, a slim majority of the Court determined that an employer, in the absence of special circumstances, need not reassign a disabled employee to a vacant position in the face of a longstanding seniority system that would award that position to a more senior, non-disabled employee. The Court's five separate opinions, however, raise as many questions as they do answers. This Article attempts a critical analysis of those questions, many of which go to the heart of just what the ADA is intended to accomplish: questions such as the appropriateness of preferential treatment for the disabled, the burden of proof allocation for establishing the existence of a reasonable accommodation, and whether the reassignment accommodation will also defer to other types of facially neutral employer transfer and assignment policies that negatively impact employment opportunities for the disabled.

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