Accommodations

Accommodations are a common feature of life, but a vexing problem in civil rights law. To accommodate is to disrupt the status quo, to regard another, to recognize one’s needs and humanity. Accommodations can be a powerful thing. Even brief accommodations are an exchange of information, which become crucial experiences, as they force us to reckon with a harsh truth: The idea that all people are created equal is a legal command, not a practical description. We all have different needs and capabilities, different beliefs and wants. We accommodate not to erase these differences but to respect them. As a vehicle to realize our ambitions, and a functional means to make equality real for everyone in need of respect, accommodations are a way to bring outsiders in. As a result, accommodation is the antidote to modern discrimination. As we turn inward, as individuality becomes the common experience, accommodation is the right tool for our time. It is a means of making meaningful change.

Visions of Equality

Equality is the touchstone of American civil rights. But what do we mean by equality? Discrimination law devotes a significant amount of time and attention to the question of whether sex—or another identity trait—is a necessary component of a given job. To answer that question, we have to decide where and when identity matters. We have to decide, in other words, what we want civil rights law to achieve. The conventional way of thinking about equality is in terms of sameness, of having—or giving people—the same rights and protections. Another way of thinking about equality, however, is based on difference. This is how the law deals with disability and religious discrimination, and it can do the same with all other forms of discrimination, too. This chapter distinguishes between two visions of equality—sameness and difference. Sameness is the more dominant of the two, undergirding much of civil rights law as we know it. Difference, by contrast, occupies a smaller share of the landscape. The goal of this chapter is to make the case for difference.

Boxes

The box is the central feature of American civil rights law. To be protected against discrimination, a person must fit into an existing box. The boxes are discrete and defined, fixed and unbending. Each box houses a trait, and the existence of the box means that the trait receives protection against discrimination. The name of the game in civil rights is to anchor yourself to a box, to demonstrate that the discrimination you faced was because of a protected trait. If you can’t do this—if you can’t fit into one of the boxes—you have no claim. But the box is a blunt tool. There are too many hard cases, too many situations where people are shut out of the enterprise. This chapter argues that religious discrimination law can show us how to build an antidiscrimination system that takes people on their own terms and lets them be themselves. It argues that the box is not essential to the work of righting wrongs, and that difference has a place in the law. The box is the problem. We can do better.

Discrimination, Old and New

Chapter 1 examines the stories and cases of three women, each of whom was unsuccessful in her attempt to use civil rights laws to redress an individual wrong. The transition from old to new discrimination is a story about identity. Despite their different jobs and distinct life experiences, the women in Chapter 1 share a common bond. They are outsiders. Discrimination evolves. While it used to be aimed at discrete outsider groups, discrimination is increasingly about the individual. And existing civil rights law is not equipped to deal with this shift. We need a new language to explain modern discrimination. Religious discrimination law holds the key.

Conclusion

In its current formulation, civil rights law is geared to contend with a particular flavor of discrimination. So long as the discrimination is aimed at status, so long as group membership is the lynchpin of the enterprise, civil rights law is well-suited to the task. But when the discrimination is about performance, when it is about self-definition or constraints on how we live our lives, when it is aimed at the one thing that sets the person apart from everyone else, civil rights law is lost at sea. The time has come to rethink the way we do equality. Difference is the path forward. Equality is a work in progress. The important thing is that we keep the conversation going. People are capable of monumental change.

Unlocking Identity

Civil rights law is in the business of identity. Too often, however, the law is giving people their identity, prescribing who they are. But identity is too messy for that. Identities change. Identities blur into each other. Identities are contextual. This chapter argues that no area of law cares more about who a person is than civil rights law, which in fact rests on the idea that certain identities deserve special protection against discrimination. Because identity is a legal concept, it is something the law can determine. Civil rights law should let people define their identity for themselves. People have an incredible capacity to change, to become more accepting of difference, to reconsider the way they see the world. But change doesn’t happen on its own—one way to start is to encourage the conversations about identity that can provide the spark for change.

Equality Derby

In the world of civil rights, the new relies on the old. Emerging groups base their claims on those who came before them. Some resist this way of thinking. Justice for one may mean less attention for the other. As groups jockey for protection under the law—in a kind of Equality Derby—they battle over history. Whose history is worse, whose deserves the most attention? When new outsider groups take up the mantle of civil rights, what happens to the unfinished work of civil rights? How will we know when the law is stretched too thin? This is a recipe not so much for disaster, but for the slow growth of justice. This chapter is about history. It is about the path toward equality. It is about what, in the broadest sense, civil rights law is trying to accomplish. Ultimately, this is a debate about history, and civil rights law has a complicated relationship to history.

Introduction

Everyone is different in some way. Each of us has a part of our identity that, if revealed, would mark us as outsiders. These differences matter, as they define who we are and how we relate to the world around us. Because equality is a moving target, civil rights law needs to change with the times. Though we live in an age of individuality, difference can be a uniting force. As we look to the future, the charge of civil rights is to carve space for people to define who they are for themselves. We are all outsiders. We need a civil rights for everyone.

Accommodating Difference

This chapter argues that the future of civil rights is accommodation, letting people be themselves. Opening up, negotiating, finding common ground—accommodation offers a new way of thinking about equality. Rather than treating identity as a standard form, rather than searching in vain for discriminatory intent, rather than squeezing people into boxes, accommodation would reorient civil rights law around inclusion. This requires us to take people as they come, judge them on their own terms, and try to find balance. With that aim in mind, this chapter proposes two major changes. The first is a right to personality, a power for people to define who they are for themselves. The second is to install an accommodation mandate, under which the question is whether we can carve space for difference.