Market Discrimination and Groups
Stanford Law School; Stanford Graduate School of Business
Stanford Law Review, Vol. 53, pp. 833-896, 2001
The first claim in the Article is that the norm against marketplace discrimination encompasses two distinct norms. The first (prohibiting "simple discrimination") provides plaintiffs the uncircumscribed right to prohibit defendants from treating them any worse than they treat others who provide them equal amounts of money. The second (providing for claims to accommodation) allows plaintiffs, on some occasions, to force the defendant to disregard higher input costs needed to serve her or help her perform her job, though this requires the defendant to expend "real" resources rather than to sustain mere psychic losses. There is no uncircumscribed right to accommodation; an accommodationist argument is simply to be weighed in deciding upon the appropriate division of social resources.
Second, the question of whether (and how) antidiscrimination law must advert to social groups depends on whether one is considering the norm prohibiting simple discrimination or the norm permitting accommodation claims. There are a number of significant administrative and substantive reasons to protect only members of subordinated social groups against simple discrimination. Still, we can determine whether a person is a victim of simple discrimination without determining whether she "belongs" to any cognizable group. On the other hand, the accommodation requirement cannot be made intelligible without regard to the existence of social groups. The reason we implicitly distribute "socially inclusionary" accommodation services in kind, rather than giving the cash value of the services to the programs' beneficiaries, has little to do with the individual characteristics, rather than group identity, of the beneficiaries.
JEL Classification: J70, J71, J78, J38, I38, H21, H23
Date posted: June 28, 2000