ABSTRACT
The canonical idea of "antidiscrimination" in the United States condemns the differential treatment of otherwise similarly situated individuals on the basis of race, sex, national origin, or other protected characteristics. This notion of the relationship between antidiscrimination and accommodation has doctrinal as well as normative and analytic dimensions. At the level of doctrine, the relationship between the two categories plays an important role in determining Congress's power to enact various federal employment laws under Section 5 of the Fourteenth Amendment. The chapter offers in this commentary builds upon and extends John Donohue's well-known work in this area. It relates the discussion of antidiscrimination and accommodation offered here to the controversy surrounding affirmative action. The chapter introduces the topic by defining "antidiscrimination" and "accommodation" more precisely. It explains how certain important aspects of disparate impact liability are in fact accommodation requirements. Some background on disparate impact liability is important at the outset.
