The Deserving Worker: Decisions about Workplace Accommodation by Judges and Laypeople

• Author: Laura Beth Nielsen,Jill D. Weinberg,Kathryn Albrecht
• DOI: http://doi.org/10.1111/lapo.12133
• Published date: 01 July 2019
• Date: 01 July 2019

The Deserving Worker: Decisions about Workplace

Accommodation by Judges and Laypeople

JILL D. WEINBERG, LAURA BETH NIELSEN and KATHRYN ALBRECHT

Employment civil rights laws require employers to make reasonable accommodations for certain

workers so that they can perform their jobs. The “reasonableness” of an accommodation request

should be based largely on the cost of the accommodation relative to the company’s resources,

but how do people really evaluate such requests? This study examines determinations of the rea-

sonableness of workplace accommodation requests made by trial judges and ordinary people.

Using a 2 ×3×3 between-subjects factorial design, we test the effect of worker identity (nurs-

ing-mother worker, transgender worker, and Muslim worker) and cost on determinations of rea-

sonableness. We find that (1) the identity category of the requesting worker impacts

determinations of reasonableness by both judges and laypeople, (2) the cost of the accommodation

impacts determinations of reasonableness, (3) judges are more likely to think that accommodation

requests are reasonable than are laypeople, (4) there is a complicated relationship between accom-

modation cost and employee identity, and (5) the cost of the requested accommodation mitigates

the effect of identity significantly for judges but less so for ordinary citizens. While judges are less

influenced by the identity category of the employee-requestor than are their lay-counterparts, social

status plays a role in determining what constitutes “reasonable accommodation.”

I. INTRODUCTION

Should a bank be required to allow a Muslim teller to wear her headscarf if it is part of

her religious practice? What if the teller’s headscarf costs the bank important (but

biased) customers? Should the bank be legally required to allow her multiple unpaid

breaks during the day to answer the call to prayer? What about constructing a prayer

room for the employee? Now consider a situation in which relatively low-, medium-, and

high-cost accommodations of this type are requested by a nursing mother or an

employee who is transgender. What kinds of accommodations for protected groups does

antidiscrimination law require, and what does this tell us about the workplace, the use of

the law in the workplace, and about how Americans view the importance of equality for

members of these groups in the workplace?

The Civil Rights Movement of the late 1950s and 1960s brought landmark legislation

that undergirds equality in the United States today, including the Voting Rights Act

(1965), the Fair Housing Act (1968), and, most important for our research, the Civil

We owe a debt of gratitude to the ordinary people and judges who responded to the survey. We are also grate-

ful to our research assistants, Anya Degenshein and David McElhattan, who helped along the way. This

research was supported by the American Bar Foundation, but all results, analysis, and errors are our own.

Address correspondence to: Jill D. Weinberg, Tufts University, Eaton Hall, 5 The Green, Medford, MA

02155. Telephone: 646-226-9716; Email: jill.weinberg@tufts.edu.

LAW & POLICY, Vol. 41, No. 3,

©2019 The Authors

Law & Policy ©2019 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12133

ISSN 0265-8240

Rights Act of 1964, which prohibits discrimination in a varietyof settings, including public

facilities and the workplace. This legislative triumvirate set the United States on a course

to disrupt Jim Crow laws and allow for equal access to public accommodations, housing,

the polls, and the right to discrimination-free employment. These guarantees are largely

enforced via what political scientists have termed “litigious policies”; individuals whose

rights have been violated are expected to bring their claims to a regulatory agency, and

any claims that are not resolved by the regulatory agency are then brought to the courts,

which are expected toensure these rights (Burke 2002). In thecase of employment discrim-

ination, these rightsare secured solely by individuals bringingclaims.

As social movement actors have pressed claims for more classes of protected

employees, other federal legislation has been enacted that works in similar ways, placing

the onus on the discriminated party to file a claim with a regulatory agency and then pur-

sue litigation. More recent protected categories include workers with disabilities

(Americans with Disabilities Act [ADA] 1990), workers with long-term illness or with

family members with long-term care needs (Family Medical Leave Act 1993), and gender

nonconforming workers under Title VII (e.g., Schroer v. Billington 2008).

Within the procedural framework established in US antidiscrimination law, employees

are guaranteed the right to a workplace free from discrimination. The right to a

discrimination-free workplace generally is understood as a “negative” right, meaning that

the law requires employers to refrain from certain actions. For example, the law prohibits

an employer from (among other things) making hiring, firing, pay, and promotion deci-

sions based on an employee’s status as a member of a protected group. However, the

promise of nondiscrimination also confers affirmative obligations on employers under cer-

tain circumstances. In other words, employers must take active steps to ensure workplace

nondiscrimination. For example, employing organizations must take reasonable steps to

prevent some employees from creating a “hostile work environment” for other employees

based on those employees’ protected statuses. Accordingly, accommodation requires that

(where reasonable) employers make adjustments to their workplaces to allow otherwise

qualified employees to do their jobs despite their membership in a protected group.

The Americans with Disabilities Act (1990) is perhaps the most well-known example

of this combination of prohibitions and requirements levied on employers. In addition

to prohibiting employers from taking certain actions, including “limiting, segregating,

or classifying an applicant or employee in a way that adversely affects the opportunities

or status of such applicant or employee because of the disability of such applicant or

employee,” the ADA requires employers to, “mak[e] reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a disabil-

ity who is an applicant or employee,” unless making the “reasonable accommodation”

causes the company undue hardship (ADA 1990: §12112 (b)(5)(A)).

The law treats “reasonableness” as an objective, economic standard. A “reasonable”

accommodation is one that can be accomplished without a cost greater than what the

employing organization can absorb. The “reasonable person” standard makes such a

calculation objective in the eyes of the law. In theory, therefore, what is “reasonable” to

require of a company to accommodate an employee with a disability should be the same

as what is required of a company to accommodate religious beliefs or pregnancy. Work-

place accommodation, according to the law, is an objective economic determination that

should apply to any accommodation request made by a worker regardless of the protec-

ted category of which the employee is a member.

Social science and sociolegal research suggest that deservingness is socially con-

structed and that differences in status are likely to influence what is considered “reason-

able” for accommodating workers. The greater social distance between a worker seeking

©2019 The Authors

Law & Policy ©2019 The University of Denver/Colorado Seminary

Weinberg, Nielsen and Albrecht THE DESERVING WORKER 287