Employment discrimination takes many more forms than the current models in our antidiscrimination laws explicitly recognize. As new forms of employment discrimination are identified, courts must decide whether or not to apply our existing statutes, which many continue to believe were narrowly constructed to focus primarily on conscious acts of prejudice. Litigants have had more success challenging that notion with respect to Title I of the Americans with Disabilities Act of 1990 (the "ADA"), because Congress was relatively clearer about the multifaceted nature of disability discrimination. Legislators openly acknowledged that disability discrimination may result not only from invidious animus, but simply from "unthinking" conduct. However, even under the ADA, courts repeatedly face new types of conduct that appear to be "discriminatory" in nature but that do not fit easily within the still rather limited concepts of discrimination that are formally described in the statute. Courts often frame these questions solely as an issue of liability. Judges either decide that an employer's conduct is "close enough" to a prototypic form of discrimination to be treated similarly, thereby triggering full liability, or they decide that the employer's conduct is "too far away" from prototypic discrimination claims to be covered by the statute, thereby resulting in no liability at all.
Just as the statutory definitions of discrimination are often too narrow and rigid, so is this judicial liability-focused approach. Framing the issue solely in terms of a liability question is at once both overinclusive and underinclusive, imposing too great a punishment on some forms of discrimination, while leaving other forms completely unchecked. When courts identify discriminatory employment practices that do not fit the primary statutory models of "discrimination," courts should not limit themselves to an all-or- nothing decision. A more flexible approach would place greater emphasis on tailoring various remedies to fit the particular type of conduct. One way to achieve this shift in focus is to frame questions about nonprototypic employment discrimination in the language of tort law, which provides a more nuanced taxonomy of legal categories than is used in most discussions of antidiscrimination law. Rather than relying so heavily on an intentional tort model, it would be more useful to also discuss nonprototypic forms of employment discrimination in terms of strict liability or negligence models, which already have embedded a concept of tailored remedies. This approach would provide protection from a wider range of discriminatory practices than the current all-or-nothing choices, while recognizing that all forms of discrimination are not the same. This Article uses one particular aspect of disability discrimination law to help illustrate this "limited remedies" approach.
This Article is about mistakes, their origins, and what their consequences should be. More specifically, it is about how the law should deal with an employer that takes a negative employment action against a nondisabled employee based on a mistaken belief that the employee is disabled. While misperceived but otherwise able-bodied employees may not have been the primary concern of antidiscrimination legislation, an employer's mistake does not make the consequences of discriminatory employment decisions any less real. "It is of little solace to a person denied employment to know that the employer's view of his or her condition is erroneous," one court has observed; "[t]o such a person, the perception of the employer is as important as reality."
Michelle A. Travis,
Perceived Disabilities, Social Cognition, and "Innocent Mistakes",
55 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss2/3