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Abstract

This Article explores the marginalization of two groups of employees—individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal-worker norm. The need for accommodation causes both groups of employees to suffer from “special-treatment stigma,” which manifests itself in resentment by coworkers about the special benefits these employees receive, and in employers’ reluctance to hire these employees because of the real or perceived costs of employing such individuals. Despite these similarities, the law deals with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.

This Article explores why the law treats these groups of employees differently. It addresses many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and that are therefore used to justify their different treatment under the law. But this Article ultimately concludes that these distinctions, once unpacked, do not justify the law’s different treatment of the two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together—special-treatment stigma. Thus, this Article explores whether a combined legal and theoretical approach to eliminating the special-treatment stigma is feasible and defensible. Specifically, this Article seeks to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.

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