Mcle Self-study: Putting Intent in Its Place: a New Direction for Title Vii

• Citation: Vol. 28 No. 4
• Publication year: 2014
• Author: By Noah Zatz

MCLE Self-Study: Putting Intent in Its Place: A New Direction for Title VII

By Noah Zatz

Noah D. Zatz is Professor of Law at UCLA School of Law. His teaching and research focus on work and inequality in contexts such as employment discrimination, social welfare policy, and low-wage work. Before beginning his academic career, he practiced at the National Employment Law Project as a Skadden Fellow.

At its fiftieth anniversary, Title VII faces a fork in the road. One path is well-marked—the path of Ledbetter, Wal-Mart, and Ricci.¹ Along that path robust commitments to civil rights are choked off by the stranglehold of discriminatory intent. But what is the alternative? Piecemeal protests at particular results have failed to marshal a compelling competing theory of antidiscrimination law. I propose that we find new direction by taking as our compass the Americans with Disabilities Act of 1990 (ADA), Title VII's younger cousin.

The ADA's signature contribution is to characterize denial of reasonable accommodation ("nonaccommodation") as disability discrimination. Appreciating why that is can cast Title VII jurisprudence in a new light. It highlights the affirmative duties Title VII already imposes on employers, and it reveals how persistent legal puzzles might be solved with new tools.

The Common Injury in Disparate Treatment and Nonaccommodation

Conventionally, disparate treatment and nonaccommodation are thought to be radically different types of discrimination.² Where disparate treatment captures the wrong of discriminatory intent, nonaccommodation imposes liability without it. Moreover, to avoid nonaccommodation liability employers must engage in differential "special treatment."

In contrast, I argue that nonaccommodation and disparate treatment are joined at the hip. In particular, they target the same basic injury. To see why, we must first understand how equality is offended when employers deny reasonable accommodations. Absent a disability, a worker would get or keep her job without accommodation, but absent accommodation, a worker with a disability would lose that job. In this simple causal sense, the unaccommodated worker loses her job because of her disability. That harm, losing a job because of one's membership in a protected class, is no stranger to Title VII. The statutory text speaks to it directly, and disparate treatment claims provide one way—but not the only way—to identify that harm.

Specifics aside, my general suggestion is to displace discriminatory intent as the touchstone for "discrimination." Discriminatory intent is highly relevant, and for good reasons, but it is not fundamental. In contrast, progressive reformers typically seek to expand on discriminatory intent while still accepting a model of discrimination as a "process defect"³ in how employers make decisions. That defect can be expanded from animus to stereotyping to implicit bias.⁴ It can extend beyond decisions about individuals to decisions about policies and practices.⁵ The net can widen what counts as protected status,⁶ as the Pregnancy Discrimination Act of 1978 did by stipulating that acting based on pregnancy constitutes acting based on sex.⁷

The ADA offers an alternative to this search for a process defect. It recognizes that, absent an accommodation, someone will lose a job, or enjoy a lesser one, because of her disability.⁸ Let's say that an employer requires its workers to use some machine, and I cannot use that machine because of a manual disability. Because of my disability, the employer will not hire me. That causal connection remains no matter how evenhandedly the employer applies its requirement and excludes others who, like me, cannot use the machine effectively but for reasons not traceable to disability; perhaps they do not understand how it works or are just a little clumsy. Even without disparate treatment, I suffer harm because of my disability. The ADA calls this discrimination if the employer can avoid inflicting this injury by making reasonable accommodations without undue hardship. The bare fact that I have some disability is insufficient to trigger the employer's duty to accommodate—that would be "special treatment" compared to other workers who would also benefit from, say, additional tools or extra time to complete a task. Instead, the duty only arises when the reason why I need accommodation is to break the causal chain between disability and harm.⁹ Breaking that chain is what antidiscrimination law is all about.

Title VII's Blurred Boundary Between Disparate Treatment and Nonaccommodation

My invocation of the ADA runs afoul of the axiom that Title VII admits only claims of disparate treatment and disparate impact, not nonaccommodation (religion aside). Yet the statute says that unlawful discrimination occurs when someone loses employment outright or suffers related harms "because of such individual's race, color, religion, sex, or national origin."¹⁰ In a disparate treatment case where an employer takes adverse action based on an employee's race or sex, the employee obviously suffers harm at work because of her race or sex, but an employee denied accommodation can suffer this same harm even if the employer acts without discriminatory intent, no matter how broadly construed. The ADA's insight is that this common harm calls for employer redress, at least when an accommodation is reasonable and imposes no undue hardship.

[Page 8]

Once we see how disparate treatment and nonaccommodation liability attack the same underlying problem, it becomes unsurprising that Title VII distinguishes between them less sharply than commonly supposed. Indeed, I assert that Title VII already recognizes some nonaccommodation claims, albeit not by name and in limited contexts.

Hostile work environment law provides the most robust example. The courts uniformly impose Title VII liability on employers that fail to prevent or remedy their employee's harassment by a third party, someone who is not the employer's agent.¹¹ The plaintiff must prove that the harassing customer, patient, or...