By: William R. Corbett*
Abstract
Federal employment discrimination laws requiring reasonable accommodations changed and expanded significantly in 2023. The Pregnant Workers’ Fairness Act (“PWFA”) became effective in June 2023, requiring employers to make reasonable accommodations for pregnancy, childbirth, and related medical conditions. Just two days later, the Supreme Court rendered a decision in Groff v. DeJoy, which expanded employers’ duty under Title VII of the Civil Rights Act of 1964 to make reasonable accommodations for religious practices. Federal employment discrimination law now has three statutes imposing substantial duties of reasonable accommodation—the Americans with Disabilities Act (disabilities), Title VII (religion), and the PWFA (pregnancy, childbirth, and related medical conditions). The most significant problem regarding this expanded subset of federal employment discrimination law is that these duties are created by three separate statutes that have significant asymmetries among them. In this way, the law requiring reasonable accommodations has become a microcosm of the whole of federal employment discrimination law. The asymmetries in the law of reasonable accommodations produce a body of law that is almost inscrutable—both challenging to apply and difficult to justify. Congress should address this significant problem in the law of reasonable accommodations and employment discrimination law generally by repealing the existing employment discrimination statutes and replacing them with a single statute. In doing so, Congress could retain or create any intended asymmetries within that single statute and eliminate the unintended ones, rather than leaving such asymmetries to be resolved by the cumbersome back-and-forth process in which Congress and the Supreme Court have engaged for six decades.
* Frank L. Maraist, Wex S. Malone, and Rosemary Neal Hawkland Professor of Law, Paul M. Hebert Law Center of Louisiana State University. I thank Professor Emeritus Charles A. Sullivan and Professor Sandra F. Sperino for helpful comments on a draft of this Article.