Concrete or Abstract Conceptions of Discrimination?

George A. Rutherglen

University of Virginia School of Law

September 1, 2012

Virginia Public Law and Legal Theory Research Paper No. 2012-58

The concept of discrimination does many different kinds of work in the law, across the entire range of abstraction, from specific prohibitions to general principles. Prohibitions framed generally in terms of discrimination augment more specific prohibitions, which go into great detail about what the law requires, of whom, in what circumstances, and with what exceptions. Discrimination serves as the organizing principle for these statutory provisions, and numerous others, connecting them to still more general principles of equality and justice. Most scholars regard the concept of discrimination as a bridge leading from concrete rules to abstract ideals. This essay goes in the opposite direction, back toward the narrow and intricate legal prohibitions that have grown up over nearly half a century, as discrimination has changed from a rallying cry for social movements to an institutionalized program of regulation. It serves as an inclusive label for such programs, but its operative effect turns out to be far more qualified and elusive. It occupies the uneasy middle ground between the abstractions of equality, liberty, and other ultimate aims attributable to a legal system, and the intricacies of legal doctrine and the practicalities of enforcement, administration, and compliance. It is the latter, this essay contends, that often determine the scope and content of prohibitions against discrimination, as in disputes over liability for disparate impact, coverage of additional grounds of discrimination, and attempts to counteract implicit bias.

Number of Pages in PDF File: 38

Keywords: discrimination, equality, disparate impact, implicit bias, appearance, sexual orientation

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Date posted: September 20, 2012  

Suggested Citation

Rutherglen, George A., Concrete or Abstract Conceptions of Discrimination? (September 1, 2012). Virginia Public Law and Legal Theory Research Paper No. 2012-58. Available at SSRN: https://ssrn.com/abstract=2148435

Contact Information

George A. Rutherglen (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-7015 (Phone)
434-924-7536 (Fax)

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