Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis, Second Edition

8 Constitutional Underclasses and Affirmative Action: The Disabled, Older Workers, Homosexuals

Eight Constitutional Underclasses and Affirmative Action The Disabled, Older Workers, Homosexuals Prologue Challenging obstacles face those who attempt to master affirmative action law and policy. The literature of affirmative action makes little attempt to treat the subjects of employment, voting, education, and housing affirmative action in a comprehensive and integrated fashion. This volume attempts to both mitigate that deficiency, and to expand the scope of affirmative action analysis—as it should be—beyond its usual topics of race, gender, and ethnicity by addressing antidiscrimination measures affecting the disabled, senior workers, and homosexuals. The Supreme Court has not granted the disabled, older workers, and homosexuals the same solicitude that body has afforded racial and ethnic minorities. Ethno-racial discriminatory treatment directed at minorities is subject to strict judicial scrutiny under equal protection review; while third-tier/mere rationality review is what is available when elders, gays, lesbians, and the disabled claim due process and equal protection violations (although homosexuals have clearly received a heightened form of third-tier analysis). The disparate-impact protection available to racial/ethnic groups under Title VII of the 1964 Civil Rights Act has been found by the High Court to be inapplicable to older workers under the 1967 Age Discrimination in Employment Act;1 and that statute has been determined by the Court to have been inappropriately extended to state government employees.2 The protection against gender discrimination in Title VII of the 1964 Civil Rights Act does not, according to lower federal courts, extend to sexual orientation harassment.3 The Supreme Court has not overruled this view, but has concluded that homosexuals have a due process full right to engage in adult, consensual homosexual activity without indicating whether that full right is 257 258 AFFIRMATIVE ACTION IN ANTIDISCRIMINATION LAW AND POLICY fundamental, mid, or lowest-tier,4 and without changing the third-tier scrutiny to which discrimination against homosexuals has been subject in U.S. Supreme Court equal protection/due process jurisdprudence. The Disability/Antidiscrimination Difference Canon Some scholars have added to the burden of understanding affirmative action by adopting a mode of thought—a canon, if you will—that insists that the “reasonable accommodation” requirement for disabled people in disability law differs from the standards of other recent antidiscrimination statutes. Actually, the affirmative action components of the latter probably nurtured5 and are surely comparable to the “reasonable accommodation” requirement in disability law. Let us first address this misleading canon. And here we will be guided by and elaborate upon a thesis presented by Professor Christine Jolls in her essay titled Antidiscrimination and Accommodation, 115 Harvard Law Review 642 (2001). The Jolls essay describes the canon and delineates its bibliography. It is to be recalled that Title VII of the 1964 Civil Rights Act (1964 CRA) declared it an unlawful employment practice for an employer (of fifteen or more) to “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, sex, or national origin.”6 Among other things, moreover, employers and labor organizations were prohibited from discriminating “against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.”7 By comparison, Title I of the 1990 Americans With Disabilities Act (ADA) declares8 that “[n]o covered entity [of fifteen or more employees] shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Further, covered entities are required to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” These accommodations could include: “adjustment or modification of examinations, training materials , or policies”; “modification of equipment”; “job restructuring, part-time work schedules, [and] reassignment to vacant positions.”9 Race/ethnic/gender affirmative action benefits are at least equally accommodationist. They involve 259 CONSTITUTIONAL UNDERCLASSES AND AFFIRMATIVE ACTION outreach efforts; special training; public school integration; preferences in hiring , promotion, and university admissions; set-asides in government...