This article considers the relationship between prescriptive law and voluntary employer behavior in redressing the structural exclusion of working caregivers. In the last decade, several courts interpreting the Americans with Disabilities Act have held that employers are statutorily required to engage in an interactive process with workers to identify ways of accommodating their disabilities. In so doing, they have created procedural rights for workers that are distinguishable from and supplemental to the substantive right to reasonable accommodation afforded by the statute. This move resonates with developments in Title VII jurisprudence, such as the creation of an affirmative defense to harassment liability for employers who implement preventative policies. It also exemplifies what can be thought of as a second generation response to structural exclusion, one that calls for greater cooperation between advocates of reform and employers themselves, in recognition of the fact that stimulating viable private solutions and a social commitment to change are essential components of any enduring workplace reform agenda. Drawing on this literature and courts' development of the Americans with Disabilities Act "interactive process" requirement, this article suggests that a comparable approach can be useful in redressing other types of workplace disparities, such as the attachment and promotion gap between working caregivers and unencumbered workers. It suggests that emphasis on procedural protection for workers may incentivize the development of positive voluntary procedures for preventing and correcting structural impediments to the advancement and inclusion of these workers. In so doing, it refines the relationship between public regulation and private behavior in reaching the goal of true workplace equality.
Rachel Arnow-Richman, Public Law and Private Process: Toward an Organizational Justice Model of Equal Employment Quality for Caregiver, 2007 Utah L. Rev. 25