Three Formulations of the Nexus Requirement in Reasonable Accommodations Law
The concept of reasonable accommodation is fundamental to the American disability law regime, yet it has proved as slippery as the concept of disability itself. (1) Underlying much of the difficulty is disagreement over the appropriate relationship between an accommodation and the disability-related obstacles it is aimed at removing. Just as it is not illegal to discriminate against a member of a protected class for reasons unrelated to her protected status, (2) the Americans with Disabilities Act (3) (ADA) does not require accommodations that are not related to a person's disability. But this seemingly simple concept has produced a muddled, often self-contradictory body of case law. Disability statutes provide little guidance to the judges who must decide whether a dog is properly understood as a needed therapy animal or a household pet, (4) whether an alternative examination method is an innovative accommodation for dyslexia or a clever way of gaming the test, (5) and whether a request to transfer to a different work setting is genuinely related to the disabling aspects of posttraumatic stress disorder. (6) This Note seeks to classify the various approaches that courts have brought to the so-called "nexus requirement," to examine the beliefs about disability that are implicit in these approaches, and to offer some ways in which courts might reconcile those beliefs with the realities of disability.
A reasonable accommodation is an alteration to some element of the status quo that is intended to enable a person with a disability to participate in work, higher education, residential living, or public life to the same extent as the nondisabled. The range of possible accommodations is in theory limited only by the human imagination: it can include changes to physical environments and time schedules, adjustment of requirements and policies, and provision of assistive devices, just to cite a few examples. (7) The Supreme Court has held that exceptions to workforce seniority rules are not necessarily off limits, (8) and courts have recently entertained the idea of including commuting-related accommodations as well. (9) Given this seemingly untethered flexibility, perhaps it was inevitable that courts interpreting disability-rights statutes would search for some principle to limit the costs incurred by businesses, landlords, and governments in complying with disability law.
Three major federal statutes require reasonable accommodations in some capacity. The ADA prohibits discrimination against people with disabilities in employment, (10) government services, (11) and places of public accommodation, (12) and its definition of discrimination includes refusal to provide a reasonable accommodation (13) and failure to grant reasonable modifications to rules and practices. (14) The Fair Housing Amendments Act of (1988 (15) (FHAA) forbids discrimination in the sale or rental of housing (16) and likewise includes failure to accommodate in its definition of discrimination. (17) And the Rehabilitation Act of (1973 (18) imposes many of the ADA's regulations on the federal government and its agents. (19) These statutes define disability as an impairment that "substantially limits one or more major life activities." (20) They specify that discrimination is forbidden only if "on the basis of," (2 (1 "by reason of," (22) or "because of" (23) disability, but they do not elaborate on how courts are to determine whether the plaintiff has adequately established a link. Notably, the ADA Amendments Act of (2008 clarifies many of the contentious issues that developed in connection with the original ADA, but it is silent on the nexus question. (24) The Supreme Court has never addressed the nexus requirement directly. (25)
Thus, the lower federal courts have been left largely to their own devices, and many commentators have been unhappy with the results. These scholars have typically treated the nexus requirement as a straightforward binary issue, generally assuming that courts either scrutinize the nexus or do not. …