In a field as volatile and fragmented as employment discrimination law, it helps to see how courts take the same concept in different statutes and apply that concept against different backdrops. In Reasonably Accommodating Employment Discrimination Law, Professor William Corbett has done just that by examining “reasonable accommodation” in federal employment discrimination law as a mandate, an entitlement, and a capacious concept. He focuses on the employer duties under Title I of the Americans with Disabilities Act (enacted 1990, amended 2008) to provide “reasonable accommodations” to employees and job applicants for “known physical or mental limitations” absent “undue hardship on the operation of the business”; the Pregnant Workers Fairness Act (enacted in 2022), which requires employers to make “reasonable accommodations” for an employee for “known limitations” related to pregnancy, childbirth, and related medical conditions absent “undue hardship on the operation of the business”; and the employer’s duty under Title VII of the Civil Rights Act of 1964 (as amended) to “reasonably accommodate” current and prospective employees’ religious practices absent “undue hardship on the conduct of the employer’s business.” Corbett finds that these accommodation duties “demonstrate the largely dysfunctional, piecemeal approach that Congress and the Supreme Court have followed for over half a century in revising and updating employment discrimination law.” (P. 539.) His insights throughout the article and his use of the lens of comparison make the piece exceptional.
Corbett sharply and thoroughly excavates the problem from Supreme Court opinions like Groff v. DeJoy (2023), EEOC v. Abercrombie & Fitch (2015), and Young v. United Parcel Service, Inc. (2015). First, according to Corbett, the Court approaches the statute at issue to engage in statutory interpretation. Next, Congress responds to the decision by amending the statute at issue or otherwise changing the decision’s result with a “patch.” At this point, the Court sets about interpreting the new statutory language. It is there that Corbett extracts his key observations about the asymmetries inherent in accommodation jurisprudence.
According to Corbett, for example, the Abercrombie Court inexplicably integrated a “motivating factor” standard, used in Title VII for employer discrimination cases, into how it decided a failure to accommodate claim, and, just as inexplicably, “refus[ed] to recognize a separate cause of action for failure to accommodate” in the case. In so doing, Corbett concludes, the Court “created asymmetry among the three protected characteristics for which federal employment discrimination law recognizes a duty of reasonable accommodations— religion, pregnancy, and disability.” In another example, Corbett recounts how, in some ways, the Supreme Court in Groff “made progress” toward affording more equivalent entitlements to accommodation between disability and pregnancy on one hand, and religion on the other hand, but still contoured disparate undue hardship standards in the failure to accommodate analyses.
Corbett’s tour through the statutes and case law is as thorough as these initial observations. By the tour’s end, it is evident that, as Corbett concludes, “there are now three separate laws governing the law of reasonable accommodations.” His writing reads like a hornbook, peppered with insightful, and sometimes prescient thoughts. These sections, in particular, make this the kind of thought-provoking and informative article that I would want to assign my law students.
After Corbett’s spot-on account of the inconsistent and ever-vacillating way in which the law in this area has evolved, drastic overhaul seems like a perfectly reasonable solution. Indeed, cobbled together by piecemeal, haphazard discourse between Congress and the Supreme Court, the laws of accommodating religion, pregnancy, and disability have their genesis in “three separate statutes . . . with different causes of action/theories of recovery, different causation standards, and different proof frameworks.”
In one of the most interesting parts of the piece, Corbett explains the reason that “general, but not complete, symmetry in employment discrimination law is desirable,” noting that while some statutory features, like defenses, or other built-in concepts, may be necessitated by the protected classes enumerated by a statute, or the language in a statute, “asymmetries raise questions about why there are differences among the duties of accommodations.” For example, a plaintiff need not prove her employer knows her religion when she brings a Title VII failure to accommodate claim, because according to Abercrombie, section 703(a)(1) of Title VII contains no such knowledge requirement. Why then did Congress require that a plaintiff prove that her employer failed to reasonably accommodate her “known” limitations under the ADA or the PWFA? (The PWFA also expressly imports the ADA’s meaning of “reasonable accommodation” and “undue hardship”.) More broadly, Corbett asks: “Why does the duty to accommodate not apply to other protected characteristics beyond the three for which the statutes currently provide?”
Corbett’s solution is to have Congress repeal these laws affording accommodation and replace them with a unitary statute, enabling “Congress to retain or create any intended asymmetries within that single statute and eliminate the unintended ones.” This is a great thought exercise for students, scholars, and jurists alike. For example, I am thinking of having the students in my survey classes on Employment Law and Employment Discrimination read this piece and, in a classroom exercise, imagine what such a statute must look like. To do this, the class would have to interrogate the “reasonable accommodation” concept—it’s elasticity, its capacity, its role as a vehicle that drives equality in employment. For its wonderful synthesis of the law of reasonable accommodation in federal employment discrimination law, its keen observations, and its provocative and innovative suggestions, you should read Corbett’s article. You, too, will like it lots!
