Samuel R. Bagenstos

The Future of Disability Law

BARRIERS TO EMPLOYMENT ............................................................ 23 A. Structural Barriers to Employment for People with Disabilities... 25 1. Structural Barriers Generally ........................................... 25 2. The Important Role of Health Insurance ............................. 26 a. Limitations of Private Insurance .................................. 27 b. Limitations of Public Insurance ................................... 32 3. Sum m ary .............................................................................. 34

The Structural Turn and the Limits of Antidiscrimination Law

The notion of institutional racism or sexism has been around a long time. Many of the original drafters of the Civil Rights Act of 1964 sought to address more than just discrete acts of discrimination. They sought as well to respond to what Senator Humphrey called the many impersonal institutional processes which nonetheless determine the availability of jobs for nonwhite workers, but the statute Congress ultimately enacted fell short of their hopes on that score. Hints of a structural approach to discrimination persist in the doctrine of disparate impact. But that doctrine can no longer be said to have much practical significance. In the past decade, however, a number of academics have sought to revive the structural focus urged by Senator Humphrey and the exponents of institutional racism and sexism theory. Their efforts have been fueled by three significant developments: changes in the workplace that have made traditional tools of antidiscrimination law less effective in attacking problems of job bias; important empirical and experimental findings of social psychologists that demonstrate the persistence of (frequently unconscious or subtle) bias; and developments in regulatory theory that seem to offer a way effectively to address structural discrimination. In this paper, I examine these recent proposals for a structural employment discrimination law. But unlike much of the existing literature, my story is not an optimistic one. To the contrary, I believe that the structural turn in employment discrimination scholarship is best understood as highlighting the limits of antidiscrimination law. Perhaps paradoxically, that is in part because I find the case for a structural approach to employment discrimination law so compelling. Unconscious bias, interacting with a changing workplace, creates equality problems that our current antidiscrimination law is poorly suited to solving. A structural approach seems to be the best hope for addressing these problems. But there are very significant obstacles to the success of a structural approach to employment discrimination law. In the areas of the law that already seem to impose on courts the obligation to police workplace structures that might facilitate discrimination, judges have proven unwilling or unable to discharge that responsibility with rigor. The new proposals seek to sidestep that history, but they do so largely by urging deference to professional communities that are as likely to subvert as to promote norms of workplace equality. And these difficulties are mere symptoms of a deeper problem: To address structural employment discrimination issues effectively will require going beyond the generally accepted normative underpinnings of employment discrimination law. Because courts (and legislatures) are unwilling to take that step, structural discrimination advocates must proceed by indirection and seek to empower workplace constituencies that (those advocates hope) will serve the cause of equality. But unless courts have some normative idea of what workplace equality should mean, they will be unable to assure that those workplace constituencies will serve the purposes of antidiscrimination law. Employment discrimination law thus faces a challenge: The individualistic remedies provided by existing law are no match for the problems that the new structural-discrimination literature identifies. Those problems - unconscious bias interacting with flexible workplace structures - are likely to become more and more significant as time goes on, and other structural equality problems are likely to become more significant as well. But employment discrimination law is an insufficient tool for addressing these problems.