Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law

Abstract

At present, our federal employment discrimination laws fail to provide uniform and consistent legal protection when an employer engages in applicant-specific paternalism – the practice of excluding an applicant merely to protect that person from job-related safety and/or health risks uniquely attributable to his or her federally-protected characteristic(s). Under Title VII of the Civil Rights Act of 1964, the courts and the EEOC reject such paternalism, demanding that the applicant alone decide whether to pursue (and accept) a job that poses risks related to his or her sex, race, color, religion, or national origin. In contrast, under the Americans with Disabilities Act of 1990, the courts and the EEOC allow applicant-specific paternalism, thereby permitting an employer to seize decision-making power from a disabled applicant.

Consequently, the validity of an excluded applicant’s employment discrimination claim regrettably depends on a single factor or variable: the at-issue protected characteristic. The "favored" characteristic (i.e., a Title VII characteristic) yields a viable claim. But, the "disfavored" characteristic (i.e., an ADA disability) produces a losing claim.

This Article proposes a new approach – termed “informational paternalism” – that brings needed uniformity and consistency of legal protection in the area of applicant-specific paternalism. This middle-ground approach has two features: a blanket prohibition of applicant-specific paternalism, and a job-related risk notification requirement. Together, these two features are justified because they: (a) reflect a longstanding philosophy of both Congress and the Supreme Court that rejects an employer’s applicant-specific protective purpose as an unacceptable basis for excluding an applicant; (b) serve to fully advance federal anti-discrimination policy; and (c) embrace a philosophy shared by Congress and the Occupational Safety and Health Administration that seeks to protect workers by providing them with information relevant to their employment-related decisions (rather than by seizing their decision-making power).

Keywords: Paternalism, Employment Discrimination, Bona Fide Occupational Qualification (BFOQ), Direct Threat, Americans With Disabilities Act, Title VII, Age Discrimination in Employment Act, OSHA

JEL Classification: J28, J70, J71, J78