Employment Problems of the Handicapped: Would Title VII Remedies be Appropriate and Effective?

This Article argues that the employment problems of the handicapped are not well-suited for treatment under a statutory discrimination model. Underlying this argument is the belief that the concept of discrimination is not adaptable to the problems of the handicapped, and efforts to apply it will only worsen existing problems. Part I begins by defining the meaning of discrimination, and then explores the similarities and differences between discrimination against the handicapped, and discrimination based on race, sex, religion, and national origin. The purpose of this discussion is to provide a basic framework for understanding claims that the handicapped should be protected under a discrimination model like Title VII. Parts II, III, and IV examine the multitude of problems that arise when the employment problems of the handicapped are addressed under a statutory discrimination model. Part II focuses on two specific provisions of Title VII – the bona fide occupational qualifications defense and the accommodations requirement – that would prove extremely difficult to apply to the handicapped. Part III discusses general judicial and administrative concerns that make implementation of a remedy like Title VII problematic, while Part IV explores the “disincentives” that would encourage the handicapped not to take advantage of a statutory discrimination remedy, were it to exist. Finally, Part V proposes alternative methods for improving the employment prospects of the handicapped that avoid the problems of a statutory discrimination model.