344. Christine Jolls, Antidiscrimination and Accomodation, 12/2001; subsequently published in Harvard Law Review, Vol. 115, No. 2, December 2001, 642-699.
Abstract: The canonical idea of "antidiscrimination" in the United States condemns the differential treatment of otherwise similarly situated individuals on the basis of race, sex, national origin, or other protected characteristics. Starting from this perspective, legal requirements that actors take affirmative steps to "accommodate" the special, distinctive needs of particular groups, such as individuals with disabilities, by providing additional benefits or allowances to them strike many observers as fundamentally distinct from, broader than, and often less legitimate than legal requirements within the canonical "antidiscrimination" category. On this ground, observers sharply contrast Title VII of the Civil Rights Act of 1964 and other older civil rights enactments, said to be "antidiscrimination" laws, with the Americans with Disabilities Act of 1990 (ADA) and the Family and Medical Leave Act of 1993 (FMLA), said to be "accommodation" laws. On these observers' view, "antidiscrimination" focuses on "equal" treatment, while "accommodation" focuses on "special" treatment.
The goal of this paper is to intervene in two respects in this longstanding discussion over the relation-ship between antidiscrimination and accommodation. The first point it makes is that, in a broader respect than has generally bee appreciated, some aspects of antidiscrimination law--in particular of its disparate impact branch--are in fact requirements of accommodation. In such instances it is hard to resist the conclusion that antidiscrimination and accommodation are overlapping rather than fundamentally distinct notions, despite the frequent claims of commentators to the contrary. The overlap between the two concepts, I suggest, also sheds light on the question of Congress's power under Section 5 of the Fourteenth Amendment to enact laws (such as the FMLA) that expressly mandate the provision of particular employment benefits directed toward specific groups of employees.
The second point the paper makes is that even those aspects of antidiscrimination law that are not in fact accommodation requirements in the sense just described are similar to accommodation requirements in respects that have not previously been understood. The point is clearest--and has been recognized previously--in situations in which antidiscrimination law prohibits employer behavior based on customer or coworker dislike of a particular group; here antidiscrimination law fairly obviously operates to require employers to ignore undeniable financial costs associated with the disfavored group of employees, and thus in a real sense to "accommodate" these employees. But, as I describe, the parallel between antidiscrimination and accommodation is broader and embraces additional aspects of antidiscrimination law as well.
This second point, in addition to suggesting that antidiscrimination shares such previously unrecognized parallels with accommodation, is of independent interest in showing how antidiscrimination law may be analyzed using a supply and demand framework drawn from economics. The analysis I offer here builds upon and extends John Donohue's well-known work in this area.