Reasonably Accommodating Employment Discrimination Law

Abstract

The law of accommodations within employment discrimination law evolved significantly in 2023. The Pregnant Workers Fairness Act (PWFA) was enacted by Congress and signed by President Biden in 2022, and it became effective on June 27, 2023. The Act creates a statutory duty for covered employers to make reasonable accommodations for pregnancy, childbirth, and related medical conditions. Two days after the effective date of the PWFA, the Supreme Court rendered a decision in Groff v. DeJoy in which the Court clarified the meaning of the “undue hardship” limitation on the duty of employers under Title VII to reasonably accommodate religious practices of employees that conflict with workplace requirements. The clarified standard generally expands the duty of religious accommodation. The PWFA and the Groff decision in 2023 hearken back to the developments in accommodations law in 2015 in two Supreme Court decisions: Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc., in which the Court expanded the duties of accommodation for pregnancy and religion. Unfortunately, the evolution of the law of accommodations, proceeding by a series of back-and-forth pronouncements of law by Congress and the Supreme Court has produced the same kind of uncertainties and asymmetries that the same approach has produced in employment discrimination law generally. Thus, accommodations law has become a microcosm of the incoherent and almost chaotic body of employment discrimination law. The time is long past due for Congress to reasonably accommodate federal employment discrimination law by comprehensively revising it.

Keywords: employment discrimination, Title VII, reasonable accommodation, religious discrimination, pregnancy discrimination

JEL Classification: J70, J71, J78