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The Torah of the ADA: A Reflection

The Torah of the ADA: A Reflection

Man scribbling the words Americans with Disabilities Act onto glass

I am a lawyer. I graduated Harvard law school and have practiced law for major corporations and large law firms. It shouldn’t, therefore, have been much of a challenge when the Union for Reform Judaism’s Inclusion Working Group asked if I would give a talk about the law of disability discrimination and accommodation.

When I protested, having never practiced ADA law or its application to religious organization, I was gently reminded that I was not being asked to provide legal advice. Rather, I was being asked to look at the law and take lessons from it for people trying to develop best practices.

It’s not Harvard law but 37 years of being a Reform Jew that prepared me for this. Isn’t that what we do? We learn the corpus of Jewish law and tradition and wring from it the essence of what it means to live a Jewish life.

That’s what I’ve done with my knowledge of ADA law. The ADA and its jurisprudence are a bit like Torah and Talmud: I created the precepts of my own inclusion business based on these teachings and my experience applying them.

The ADA says we must not deny a job to an applicant who can capably perform the essential functions of that job, provided that they applicant has the appropriate accommodations, if any, and so long as those accommodations are not unduly burdensome upon a business.

Let’s unpack a few basic concepts: The first is that every job has essential functions, things that are core to it; the corollary is that every job has inessential functions. There are parts of your job that comprise the reason you were hired, and without you or someone doing those things, the job would have no reason to exist. These are the essential functions of your job.

In most jobs, though, there is a bunch of work that has just landed with particular people. Sometimes it’s because they stepped up; often, it’s because no one else did. Nothing wrong with that, but hardly essential to the job.

So, the first thing the ADA teaches is that we have to identify essential functions of every job. Sometimes organic structures in businesses or organizations are quite efficient, and sometimes not. The exercise of figuring out what each person actually does every day – and whether that’s essential to their job or just happened that way – gives us opportunity to seriously think about the division of labor and responsibility in our workplaces.

Maybe we could be doing it better. Maybe certain tasks should rotate or devolve to someone less busy this is a valuable exercise long before we reach the question of disability. How often do we make jobs untenable because we didn’t think about whether a particular function was essential or not? This has implications far beyond reasonable accommodation

The next part of the ADA analysis teaches us to focus on the abilities of the person. Can they perform these essential functions, and what help, if any, do they need to do so? What an important question to learn to ask instead of to assume.

We all assume so much about each other – which is both normal and human. The ability to make snap judgments based on our own perceptions helped us survive in more violent days, and it helps us organize our social perspectives. We might think it makes us more compassionate now – to assume that a wheelchair user would have trouble in a job with a lot of travel, or that a blind person would struggle in a role based on Hebrew text – but in fact, using those assumptions can be terribly harmful.

Consider this legal case. A terminated police officer sued his employer for failure to accommodate, leading to termination. The officer had suffered trauma in the line of duty, and his resulting mental illness precluded carrying a firearm. At some point, his supervisors mistakenly understood his limitations to mean that he could not be in the presence of firearms. He was terminated because there were no jobs that could accommodate that need in the police station.

One of the things so interesting about this case was the fact that nobody ever asked this officer if he could be around firearms. Their assumptions added a limitation he didn’t have and which they couldn’t accommodate, so he was fired.

How often might we allow our well-meaning compassion and preconceptions to get in the way of just asking the question? Could you look at me using my power wheelchair, and assume I couldn’t attend a party on your front lawn, not knowing I spent more than 20 summers involved with Jewish summer camps? How many law firms passed me over because they assumed I couldn’t work the necessary hours? What limitations do our assumptions place on people’s lives ?

It takes 30 seconds to ask. The harder part is realizing that what we perceive to be compassion – i.e. not making someone explain their limitations – is anything but. When we’re confronted with another person in either a social or employment situation, it’s far more compassionate to assume that they have developed strategies for leading full and complete lives, than to assume that they cannot.

Over time, the experience of working with talented people who can do things we didn’t think they could do might change our perceptions – but for now, following the ADA method removes our perceptions from the picture.

In Judaism, we "build a fence around the Torah,” meaning that in those places where human nature and the ability to get confused are such that we are likely to screw up, with significant consequences, we create broader, simpler prohibitions to take the subjectivity out of it. Here, it’s only consequential if you mistakenly assign someone a limit they do not have – but if you create the default rule of never assuming someone’s limits, but rather always asking, you will never run the risk that your assumptions will unnecessarily put someone out of a job or social setting.

February is Jewish Disability Awareness, Acceptance, and Inclusion Month (JDAIM), a unified initiative to raise disability awareness and support efforts to foster inclusion in Jewish communities worldwide. The Union for Reform Judaism is proud of its Presidential Initiative on Disabilities Inclusion, an ongoing effort to ensure full inclusion and participation of people with disabilities in every aspect of Reform Jewish life. Visit the Disabilities Inclusion Learning Center to learn more.

Matan A. Koch is a lawyer teacher, consultant and thinker, who advocates universal inclusion, the idea that the best approach to inclusion of everyone is the same for those with and without disabilities, i.e. helping to eliminate barriers so that everyone can share their light. He developed these ideas as an Obama appointee to the National Council on Disability. A graduate of Yale College and the Harvard Law School, Matan practiced law both in-house at Procter & Gamble and as an associate in the New York office of Kramer Levin Naftalis and Frankel, LLP. More recently, Matan founded and is the principal and CEO of Capitalizability LLC, working with organizations in the Jewish and secular world to promote their inclusion goals. For more about Matan, visit matankoch.com.

Matan A. Koch
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