MANAGING THE MACAW: THIRD-PARTY HARASSERS, ACCOMMODATION, AND THE DISAGGREGATION OF DISCRIMINATORY INTENT.

This Article exploits an anomaly in Title VII doctrine to develop a new theory of employment discrimination law. The anomaly is that employers are held liable for discrimination when their employees are harassed by customers or other third parties. Such liability cannot be squared with traditional Title VII theories of disparate treatment or disparate impact. Instead, courts accept claims that essentially assert denial of reasonable accommodations, notwithstanding the consensus that Title VII disallows such claims. To understand this anomaly, the Article posits a new analysis of what disparate treatment and nonaccommodation have in common. First, both involve "membership causation": workplace harm caused by an individual employee's membership in a protected class. Second, both involve criteria for establishing an employer's responsibility for preventing membership causation. These structural continuities facilitate Title VII liability in third-party harasser cases. In these cases, membership causation exists in conjunction with employer negligence as a basis for responsibility, even though the employer lacks any discriminatory intent. This analysis also illuminates a series of other confused areas where Title VII doctrine deviates from a discriminatory intent standard without turning to disparate impact, all of which conjoin membership causation and a basis for employer responsibility. More generally, membership causation and employer responsibility enable a theoretical synthesis of disparate treatment and nonaccommodation. That synthesis offers employment discrimination law a firmer normative foundation in liberal egalitarian thought. Such a theory may provide an alternative to established approaches built on the process defects of discriminatory intent or the structural goal of ending group subordination, while retaining the primary virtues of those approaches. [ABSTRACT FROM AUTHOR]