Labor Goals and Antidiscrimination Norms: Employer Discretion, Reasonable Accommodation, and the Costs of Individualized Treatment

Abstract

The Americans with Disabilities Act (ADA) envisions a workplace markedly different from the one that organized labor has long endeavored to construct. Labor has traditionally considered one of its primary missions to be protecting employees from the arbitrary treatment that employers can inflict under the common-law rule of "at-will" employment. For only by curtailing such treatment can labor realize its more familiar policy objectives — enhanced job security and predictability, higher wages, more generous benefits, and better working conditions. To shield employees from arbitrary treatment, labor has advocated workplace policies — such as for-cause termination and seniority rights — that limit employers’ decisionmaking discretion and require employers to treat all their employees equally.

The ADA, by contrast, necessarily requires employers to exercise significant discretion. Like other employment-discrimination laws, the ADA seeks to ensure that employers treat employees as individuals. But whereas other employment-discrimination laws promote individualized treatment only indirectly, the ADA directly mandates such treatment for individuals with disabilities by affirmatively requiring employers to accommodate such individuals based on an assessment of each person’s unique needs and capacities. Employers cannot provide this kind of individualized treatment without exercising significant discretion to depart from or modify generally applicable workplace policies.

By exposing the tension between labor’s goal of limiting employer discretion and the ADA’s accommodation requirement, this Article offers a new take on the perennial debate among scholars over the nature of that requirement and its relationship to prior antidiscrimination mandates, particularly Title VII of the Civil Rights Act of 1964. It also develops a distinctive analytical framework for understanding the relationship between labor law and employment-discrimination law and for addressing controversies arising at the intersection of labor goals and antidiscrimination norms. It specifically applies that framework to one such controversy: whether the ADA can ever require an employer to reassign a disabled employee to a particular position in violation of the employer’s competitive-assignment policy. Normatively, the Article offers a number of reasons to reconcile the ADA’s accommodation requirement to labor’s goal of limiting employer discretion, rather than vice versa. And amid calls by scholars to extend the ADA’s model of individualized treatment to other employment-discrimination laws and workplace regulation more generally, this Article sounds a note of caution, suggesting that we should consider alternatives — such as disparate-impact liability — that accommodate difference in the workplace without subverting labor goals.

Keywords: Discrimination, Employment Law, Labor Law, Disability, ADA, Title VII, Accommodation