Trait Discrimination as Race Discrimination: An Argument about Assimilation
Northwestern University School of Law
George Washington Law Review, Forthcoming
Northwestern Law & Econ Research Paper No. 05-21
Northwestern Public Law Research Paper No. 05-17
Title VII of the Civil Rights Act of 1964 was passed at a time when discrimination based on race was open and categorical. Discrimination today often takes a different and more complex form. It may be driven not by racial status per se but by traits and attributes that are culturally or statistically associated with race. An employer may be perfectly willing, perhaps even eager, to hire blacks who dress, talk, and act in a particular way, but unwilling to hire blacks who deviate from the employer's cultural norm. The debate over appropriate legal responses to trait discrimination has, thus far, taken place largely in generalities and at a high level of theoretical abstraction. The discussion has been about the harms of assimilation versus the dangers of essentialism. Yet the question of when, if ever, antidiscrimination law should prohibit employers from engaging in racially and culturally associated forms of trait discrimination is one that can only be answered by looking at particulars. This paper categorizes the varied and complex ways in which employers engage in trait discrimination and suggests an appropriate legal response to each form. While the paper concludes that antidiscrimination law must extend its protection beyond simple forms of status discrimination to some forms of trait discrimination, its proposed responses are necessarily nuanced and context specific - taking into account the nature of the trait at issue, its importance to protected group members, and the reasons for the employer's prohibition.
Number of Pages in PDF File: 127
Keywords: discrimination, employment, raceAccepted Paper Series
Date posted: September 29, 2005
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