Cass R. Sunstein, Cost-Benefit Analysis Without Analyzing Costs or Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms, 74 U. Chi. L. Rev. 1895 (2007).
Abstract: Is an accommodation "reasonable" under the Americans with Disabilities Act if and only if the benefits are roughly proportional to the costs? How should benefits and costs be assessed? Should courts ask how much disabled employees are willing to pay to obtain the accommodation, or instead how much they would have to be paid to forego the accommodation? How should stigmatic or expressive harms be valued? This Essay, written for a celebration of the work of Judge Richard A. Posner, engages these questions in a discussion of an important opinion in which Judge Posner denied accommodations involving the lowering of a sink in a kitchenette and a request for telecommuting. The problem with Judge Posner's analysis is that it does not seriously investigate either costs or benefits. A general lesson is that while cost-benefit balancing can helpfully discipline unreliable intuitions about the effects of requested accommodations, it can also incorporate those intuitions. Other lessons are that stigmatic harms and daily humiliations deserve serious attention as part of the inquiry into whether requested accommodations are reasonable, and that the removal of those harms and humiliations can create real benefits. Adequate cost-benefit analyses must attempt to measure and include those benefits.