Tuesday, November 29, 2005
Over on the AALS Employment Discrimination Listserv, there has been a fascinating exchange concerning the relationship between reasonable accommodation and anti-discrimination law. Below are highlighted some of more thought-provoking comments put forward by Chai Feldblum (Georgetown), Sam Bagenstos (Washington University), Stephen Clark (Albany), and Noah Zatz (UCLA).
"[T]he strong support for liability based on non-EE harassment of EEs, the awarding of damages in even non-supervisory [hostile work environment] cases, and the failure in these cases to invoke any of the trappings of [disparate impact] all suggest that harassment law has, once again, been an important site of doctrinal innovation, including the creeping incorporation of [reasonable accommodation] into Title VII." - Noah Zatz
"If the Court in Hardison is to be believed, the EEOC's 1967 guideline requiring accommodation of religion was consistent with Title VII before the 1972 amendment adding explicit religious accommodation language, so that provides you at least one weak precedent for [reasonable accommodation] in Title VII despite the absence of accommodation language for race and sex." - Steve Clark
"My sense is that [Judge] Easterbrook would deny that he's incorporating an accommodation principle into harassment law. But the analytic continuity between antidiscrimination and accommodation, which Christine [Jolls] and I tried to show different aspects of in our respective articles on the subject, means that even people who think the two concepts are very different will at times read antidiscrimination laws in ways that require what many of us would call accommodation." - Sam Bagenstos
"I think analytically we should certainly presume that any rich understanding of antidiscrimination against a group of people that has needs different from the norm requires a pro-active accommodation requirement . . . . To the extent this has not been carried over instinctively with regard to race and sex has to do, I think, more with the complications attendant on seeing those characteristics as necessarily deviating from a background norm — rather than from a limitation in what 'antidiscrimination' requires. My sense is that we will always need accommodations, in this society, for religion, disability and caregiving responsibilities — because it’s really difficult to change the background norms enough so that all folks with such characteristics will always be treated equally. But perhaps we will not need similar accommodations for sex and race if and when we really manage to get rid of sexism and racism." - Chai Feldblum
All comments and thoughts on these comments are welcome!
Posted by: Paul M. Secunda