Discrimination by Comparison
Yale Law Journal, Vol. 120, p. 728, 2011
85 Pages Posted: 25 Mar 2010 Last revised: 9 Dec 2015
Date Written: March 16, 2010
Contemporary discrimination law is in crisis, both methodologically and conceptually. The judiciary’s favored heuristic for observing discrimination – a comparator who is like the discrimination claimant but for the protected characteristic – has nearly depleted discrimination jurisprudence and theory. The resulting deficit can be explained, in turn, by the comparator methodology’s profound mismatch with current understandings of identity discrimination and the realities of the modern workplace. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty amplifies for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By collapsing an observational heuristic into a defining element of discrimination, courts have largely foreclosed these theories from consideration, leaving the mismatch in place and sharpening the divide between theory and practice. At the same time, courts have further shrunk the very idea of discrimination by disregarding the lesson of harassment and stereotyping jurisprudence that discrimination can occur without a comparator present.
The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina enables courts to avoid making sociologically-oriented inquiries that stretch core judicial competencies. That is, the methodology permits courts to evaluate discrimination claims without appearing to engage in a subjective analysis of workplace dynamics. Given the complex nature of both identity and discrimination, however, these comparisons produce a false certainty at best. By contrast, alternate methodologies, including the contextual consideration favored in harassment and stereotyping jurisprudence as well as the hypothetical comparator embraced in European law, offer a meaningful framework for matching discrimination law and norms to workplace facts, while preserving judicial legitimacy. With comparators off of their methodological pedestal, we may yet recover space for the renewed development of discrimination jurisprudence and theory.
Suggested Citation: Suggested Citation