Putting Intent in Its Place: A New Direction for Title VII

This very short essay charts a path forward for Title VII by looking through the lens of the ADAs’ analysis of nonaccommodation as discrimination. The basic idea is that employment discrimination law protects individuals from suffering harm at work because of their race, sex, etc., but only when there are sufficient reasons to hold their employer responsible. That occurs not only when an employer acts with discriminatory intent, but also when an employs denies a reasonable accommodation needed because of disability or adheres to a practice with a disparate impact. This common structure can be seen in the ways that Title VII claims nominally framed as disparate treatment or disparate impact converge with nonaccommodation analysis, notwithstanding its lack of formal recognition under Title VII. The general strategy is to displace discriminatory intent by appreciating its relevance while denying its centrality, and not simply to expand the contours of disparate treatment as implicit bias and other accounts of subtle discrimination seek to do