Travis on the Transformative Potential of Employment Discrimination Law

Just out on Westlaw: Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 Wash. & Lee L. Rev. 3 (2005). From the intro:

When Congress enacted the Americans with Disabilities Act of 1990 (the ADA), lawmakers envisioned a tool that would redesign the conventional workplace. The ADA not only prohibits most private employers from acting on invidious animus, but also requires employers to actively modify the workplace to accommodate individuals with disabilities. According to the ADA's primary sponsor, the statute represents the "twentieth century Emancipation Proclamation for all persons with disabilities." The United States Supreme Court provided a similarly reconstructionist vision of Title VII of the Civil Rights Act of 1964 (Title VII) when the Court endorsed the disparate impact theory, which requires employers to replace facially neutral practices that disproportionately affect protected groups. The Court recognized that eliminating employment discrimination on the basis of race, color, religion, sex, and national origin would require more than just preventing employers from prejudiced decisionmaking. Achieving workplace equality also would require employers to remove all "artificial, arbitrary, and unnecessary barriers," and to eliminate the "built-in headwinds" of the conventional work environment. Because both Title VII's disparate impact theory and the ADA's accommodation mandate were intended to displace established social norms, both statutes properly are characterized as "transformative law."

Initially, advocates were very optimistic that the ADA and Title VII would help restructure the workplace to provide meaningful access and new employment opportunities. As many scholars have explained, however, this hope has gone significantly unrealized. The inability of these laws to fundamentally restructure the workplace is particularly evident with respect to traditional methods of organizing the when, where, and how of work performance, including the default preferences for full-time positions, unlimited hours, rigid work schedules, an uninterrupted worklife, and performance of work at a central location. This bundle of related default organizational structures--referred to collectively as the "full-time face-time norm"--frequently excludes individuals from the workplace, particularly individuals with disabilities and women with significant caregiving responsibilities. Unfortunately, neither the ADA nor Title VII has done much to transform this exclusionary norm.

One of the reasons for this disappointing result is that judges have interpreted the ADA and Title VII through the lens of "workplace essentialism." For either the ADA or Title VII to restructure the workplace successfully, judges first must envision an alternative. To do so, judges must be able--and willing--to parse out the malleable ways that job tasks are organized from the actual tasks that comprise the essence of the job itself. Judges repeatedly have demonstrated an inability--or simply an unwillingness--to take this step. Instead, judges have assumed that jobs are defined at least in part by the default organizational structures that make up the full-time face-time norm, thereby placing those structures beyond the reach of antidiscrimination law and undermining the law's transformative potential. Although this type of workplace essentialism plays a different doctrinal role in ADA accommodation cases and Title VII disparate impact cases, the analytic error is similar in both contexts. Just as the teacher in Harry Chapin's song refused to acknowledge the little boy's suggestion that flowers are still flowers even if painted in many different colors, so judges have refused to acknowledge that a job is still a job even with many different designs for when, where, and how the tasks are performed.

Judicial interpretation of the ADA and Title VII through the lens of workplace essentialism is an example of what Professor Linda Hamilton Krieger has described as "capture through construal." Capture occurs when entrenched norms affect judges' statutory construction in ways that constrain the law's full implementation. These entrenched norms operate as "taken-for-granted background rules," which "systematically skew the interpretations of transformative legal rules so that those rules increasingly come to resemble the normative and institutional systems they were intended to displace." In other words, the danger is not only that the entrenched norm of the essentialized workplace is undermining judges' ability to interpret the ADA and Title VII to realize these laws' full transformative potential. The further risk is that these judicial interpretations are, in turn, relegitimating and reifying the very same default workplace structures that the laws were designed to subvert.

Because the ADA and Title VII have fallen short of initial expectations, some scholars have moved away from antidiscrimination law as a primary tool for achieving workplace equality. Others have continued to suggest future roles for employment discrimination law, while recognizing that no tool can be the single answer to such a multifaceted problem. This Article joins the latter group by identifying a common analytic error in both ADA and Title VII case law and articulating an interpretation that would allow individuals with disabilities and women with caregiving responsibilities to recapture some of the untapped transformative potential of employment discrimination law.