MCLE Self-Study: Putting Intent in Its Place: A New Direction for Title VII

By Noah Zatz

Noah D. Zatz is Professor of Law at UCLA School of Law. His teaching and research focus on work and inequality in contexts such as employment discrimination, social welfare policy, and low-wage work. Before beginning his academic career, he practiced at the National Employment Law Project as a Skadden Fellow.

At its fiftieth anniversary, Title VII faces a fork in the road. One path is well-marked—the path of Ledbetter, Wal-Mart, and Ricci.¹ Along that path robust commitments to civil rights are choked off by the stranglehold of discriminatory intent. But what is the alternative? Piecemeal protests at particular results have failed to marshal a compelling competing theory of antidiscrimination law. I propose that we find new direction by taking as our compass the Americans with Disabilities Act of 1990 (ADA), Title VII’s younger cousin.

The ADA’s signature contribution is to characterize denial of reasonable accommodation ("nonaccommodation") as disability discrimination. Appreciating why that is can cast Title VII jurisprudence in a new light. It highlights the affirmative duties Title VII already imposes on employers, and it reveals how persistent legal puzzles might be solved with new tools.