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Special Treatment Everywhere, Special Treatment Nowhere

Abstract

This symposium essay disputes the conventional wisdom that “special treatment” mandates are exceptional within employment discrimination jurisprudence. To the contrary, they are endemic, and necessarily so. This is true even within disparate treatment jurisprudence. The reasons are twofold. First, remedying discrimination necessarily involves treating its victims differently than nonvictims. Employers are required to, and sometimes do, provide such remedies prior to judicial intervention. When such employer action elicits accusations of “special treatment,” these often reflect a failure or refusal to recognize that subjection to discrimination, not protected status, is the basis for the employer’s decisions. Second, distinguishing victims from nonvictims often requires making distinctions based on race or other protected status. Therefore, remedying discrimination, including disparate treatment, may require treating individuals “specially” according to race. Having identified these dynamics in disparate treatment jurisprudence, the essay then traces their replication or extension in reasonable accommodation and disparate impact liability. The more familiar “special treatment” arising out of these claims establishes their kinship with, not divergence from, disparate treatment liability. Accommodation of pregnancy-related medical restrictions provides one example.

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