UCLA School of Law

This Article exploits an anomaly in Title VII doctrine to develop a new theory of employment discrimination law. The anomaly is employers' liability for not protecting employees from harassment by customers or other third parties. Plaintiffs prevail without establishing either disparate treatment or disparate impact. Instead, their claims essentially assert denial of reasonable accommodations, notwithstanding the consensus that Title VII disallows such claims.

To understand this anomaly, I propose disaggregating discriminatory intent into two functions. One identifies the presence of "membership causation": workplace harm caused by the employee's membership in a protected class. Membership causation also can arise without the employer's discriminatory intent, as it does with third-party harassment and nonaccommodation generally. The second function establishes the employer's responsibility for preventing membership causation. Hostile work environment claims explicitly inquire into employer responsibility apart from causation, as do nonaccommodation claims. These structural continuities facilitate Title VII liability where membership causation exists in conjunction with some basis for employer responsibility other than its discriminatory intent, such as its negligence. This analysis also illuminates a series of other confused areas where Title VII doctrine deviates from a discriminatory intent standard without turning to disparate impact.

Membership causation and employer responsibility enable a theoretical synthesis of disparate treatment and nonaccommodation. That synthesis offers employment discrimination law a firmer normative foundation in liberal egalitarian thought. Such a theory may provide an alternative to established approaches built on discriminatory intent or group subordination while retaining their primary virtues.