Why Incorporate Disability Studies into Teaching Discrimination Law?

• Date: 01 February 2010
• DOI: http://doi.org/10.1111/j.1744-1722.2010.01068.x
• Published date: 01 February 2010
• Author: Ramona L. Paetzold

Why Incorporate Disability Studies

into Teaching Discrimination Law?

Ramona L. Paetzold

n

I. INTRODUCTION

Those of us who teach employment discrimination law, particularly as a

separate course or part of a course on employment law,

1

are used to cov-

ering a broad range of legal models and issues pertaining to the protected

classes under Title VII of the Civil Rights Act. The disparate treatment,

disparate impact, and hostile environment models of discrimination apply

broadly and are often discussed within a framework of feminist, critical

race, or other perspectives. For example, I engage the class in a discussion

of whether Title VII is color-blind or, indeed, if it makes sense to have a

discrimination law that is color-blind.

2

We engage in a discussion of racial

identity status as distinct from, but related to, racial identity performance

and what it means for Title VII to have difficulty protecting individuals on

the basis of performance of racial identity. We also engage in similar dis-

cussions about the performative nature of gender identity, noting that

gender identity is complicated because gays, lesbians, and transgenders

lack explicit coverage on the basis of their sexual orientation or gender

identity under Title VII but also noting that they may receive protection

for nontraditional performance of gender itself. And, of course, we note

that race and gender are not distinct issues but part of a more complex and

r2010 The Author

Journal compilation r2010 Academy of Legal Studies in Business

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Journal of Legal Studies Education

Volume 27, Issue 1, 61–80, Winter/Spring 2010

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Professor and Mays Research Fellow, Department of Management, Texas A&M University.

1

For example, I teach a senior-level course in employment discriminationlaw and a graduate-

level course in employment law in the Management Department at Texas A&M University.

The undergraduate course is much more social policy–oriented than the graduate course, but

both courses incorporate scholarly, theoretical critiques of employment discrimination law.

2

The issue of color-blindness appears in, for example, Jerome McCristal Culp, Jr., Colorblind

Remedies and the Intersectionality of Oppression: PolicyArguments Masquerading as Moral Claims,69

N.Y.U. L. REV. 162 (1994). See also Paul Brest, Foreword: In Defense of the Antidiscrimination

Principle,90HARV.L.REV. 1 (1976).

nuanced social issueFhow do various identities intersect to experience

inclusionary or exclusionary patterns in organizations, society, and under

the law?

3

Because my undergraduate course is cross-listed with Women’s Stud-

ies, we focus in particular on the myriad ways in which discrimination law

both reflects and evolves from feminist theory. Students need to under-

stand the sameness–difference debate that inhabited liberal and cultural

feminisms to understand how pregnancy is treated under the Pregnancy

Discrimination Act.

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For them to envision further inclusion for women in

organizations, they need to see that the sameness–difference debate is in-

adequate and that newer feminist perspectives on power, status, and ex-

clusion are important to re-visioning the way in which pregnancy could be

treated under the law.

5

In other words, a full discussion of discrimination

law need not stop at ‘‘this is what the law currently is and this is what it does

and does not accomplish,’’ but can also discuss ‘‘this is how the law might

be different if we wanted to accomplish X with it.’’ When employers raise

arguments that ‘‘women just aren’t interested’’ in certain jobs

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and orga-

nizations should not be held responsible for not hiring or promoting

women, students can either be left to accept that argument at face value as

a valid defense under the law, or they can explore a law that would take

into account the ways in which organizations shape all employee and ap-

plicant preferences for various types of jobs and thus should be held re-

sponsible. Students can be led away from inadequate and essentialist

notions of what ‘‘men are like’’ and ‘‘women are like’’ and ‘‘this is the

way the world works’’ to think critically about what people are like, what

they can be like, what shapes people’s identities and preferences, and what

3

An introduction to the idea of intersectionality of multiple identities and the law is available

from Kimberle

´Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black

Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI.

LEGAL F. 139. See also, e.g.,Devon W. Carbado & Mitu Gulati, Working Identity,85CORNELL L.

REV. 1259 (2000).

4

A good discussion appears in Lucinda M. Finlay, Transcending Equality Theory: A Way Out of the

Maternity and the Workplace Debate,80C

OLUM.L.REV. 1118 (1986). See also Herma Hill Kay,

Equality and Difference: The Case of Pregnancy,1B

ERKELEY WOMEN’SL.J. 1 (1985).

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See, e.g.,Maxine Eichner, On Postmodern Feminist Legal Theory,30HARV.CIV.RIGHTS-CIV.LIB-

ERTIES L. REV. 1 (2001).

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This argument was central, for example, in E.E.O.C. v. Sears, Roebuck & Co.,628 F. Supp.

1264 (N.D. Ill. 1986).

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