286. Christine Jolls, Accommodation Mandates and Antidiscrimination Law, 06/2000; subsequently published as "Accomodation Mandates" in Stanford Law Review, Vol. 53, No. 2, November 2000, 223-306.
Abstract: Legal requirements that employers provide specified benefits, such as workers' compensation and family leave, to their workers are virtually omnipresent in modern employment law. Some mandates are directed to workers as a whole, and many of these date back to the early part of the twentieth century (workers' compensation, for instance). But other, newer mandates are directed to discrete groups of workers, such as the disabled. These mandates are intended to accommodate the unique needs of those workers. These "accommodation mandates," and their relationship with antidiscrimination law and principles, are the central topics of this Article.
Since accommodation mandates regulate a market relationship-that of employer and employee-an obvious set of questions involves how such mandates affect the wages and employment levels of employees. There is an accepted economic framework, due principally to Lawrence Summers, for analyzing the effects of mandates directed to workers as a whole (such as workers' compensation), but accommodation mandates raise many distinct issues that have not been adequately addressed in the existing literature. Central among these is the way in which antidiscrimination law interacts with accommodation mandates; this interaction is simply not relevant when analyzing mandates directed to workers as a whole.
Accommodation mandates relate to antidiscrimination law on another level as well. While many commentators suggest that such mandates are fundamentally distinct from antidiscrimination law (so that, for example, a requirement to provide special accommodation for disabled workers is fundamentally distinct from a requirement not to "discriminate against" these workers), I argue that the economic analysis of the two forms of legal intervention supports the view that they are similar rather than distinct. The parallels I emphasize between accommodation mandates and antidiscrimination law have not previously been recognized in the literature.