Jottings By An Employer's Lawyer

Sunday, May 29, 2005

Who Should Be More Scared -- Employers or Federal Judges?

On the newly discovered (by me) Disability Law blog, is this post, Travis on the Transformative Potential of Employment Discrimination Law, taken from a recently published law review article in the Washington and Lee Law Review, Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 Wash. & Lee L. Rev. 3 (2005).

What caught my attention was this quote from the article pointing out (in the author's view) a problem with the interpretation of the ADA by the judiciary:

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.

In short, in order to give the ADA the transforming effect that was intended, judges should decide how to re-order work in a much more significant manner than they have so far been willing to do. There are things that we should not task our judges with, and trying to decide how best to redesign the nature of work is probably one of them. I am fairly certain it is a task that not many federal judges would look forward to.


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