Changing Workforce Demographics and the Future of The Protected Class Approach

35 Pages Posted: 3 Apr 2012 Last revised: 27 Apr 2012

Nancy Levit

University of Missouri at Kansas City - School of Law

Date Written: May 1, 2012

Abstract

The composition and identity characteristics of the American workforce are changing. The population in this country is rising, aging, and becoming much more racially and ethnically diverse. Appearance norms are shifting too. These changes have enormous implications for constitutional and employment discrimination law. In both equal protection and employment discrimination cases, recovery usually depends on membership in a constitutionally or statutorily protected category. Yet the statutory approach to anti-discrimination law has stagnated. Part of the difficulty of the protected class approach is that it is based on something of a paradox — the paradox of exceptionalism. Class-based protection requires individuals to prove immutable or deeply embedded differences to obtain protection from being treated differently. The categorical approach also means that some types and lived experiences of discrimination are simply omitted from federal and state protection. The article discusses cramped doctrinal interpretations, narrow intersectional analysis, and the problematic of intra-group distinctions — all of which inhibit the reach of Title VII and state laws. The proposal to reinvigorate the anti-discrimination frontiers envisions constructing a judicial and regulatory patchwork of protections. The article recommends expanding doctrinal coverage for new types of discrimination, as well as building on the efforts of various states and municipalities, which have begun to provide somewhat more robust anti-discrimination protection than is afforded under federal law. Finally, the article suggests that one of the more promising avenues for addressing the types of discrimination that will face the workforce of the future is to endeavor to change cultural understandings about identity characteristics through media efforts.

Keywords: Employment discrimination, Workforce demographics, Equal protection, Protected class, Antidiscrimination law, Title VII, Workforce diversity, appearance discrimination, age discrimination, race discrimination, state antidiscrimination laws

JEL Classification: J11, J14, J15, J16, K10, K23, K31

Suggested Citation

Levit, Nancy, Changing Workforce Demographics and the Future of The Protected Class Approach (May 1, 2012). 16 Lewis & Clark L. Rev. __ (Forthcoming May 2012). Available at SSRN: https://ssrn.com/abstract=2033792

Nancy Levit (Contact Author)

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

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