Antidiscrimination Law in the Administrative State

Abstract

Is the goal of antidiscrimination law to promote substantive ideals of equality, or is it limited to remedying wrongful acts of discrimination? This is the fundamental question at stake in debates about the most contested doctrines in antidiscrimination law, namely liability for disparate impact, hostile work environment, and failure to accommodate the disabled. This article argues that the answer to this question should affect a society's choices about the powers exercised by the administrative state in enforcing antidiscrimination law. In the United States, antidiscrimination law is mainly enforced through quasi-tort lawsuits against alleged discriminators. Unlike administrative agencies enforcing other bodies of law in the United States, and also unlike administrative agencies enforcing antidiscrimination law in Britain, the U.S. Equal Employment Opportunity Commission (EEOC) does not exercise adjudicatory or rulemaking power in pursuit of policies promoting equality. If the goal of antidiscrimination law is to pursue a substantive vision of equality, greater regulation by the administrative state is warranted.

Keywords: antidiscrimination law, administrative law, corrective justice, distributive justice, EEOC, disparate impact, Great Britain