Invisible Histories & the Failure of the Protected Classes

Abstract

Our legal history suggests that the evolution of our discrimination law has been and likely should be the continuing enumeration of protected classes. There is, however, a counter-intuitive problem: protecting specific groups suggests to the public that everyone else is fair game, providing implicit legitimacy to other harmful stereotypes. To illustrate this problem this article constructs the legal history of stereotypes and prejudicial acts against Appalachians, a marginalized group that does not fit neatly in the protected categories. Considering then how our courts have treated the relationship between stereotypes and discrimination, along with recent sociological evidence, this article suggests that there has been a quiet division between the legislative and judicial approaches, with the legislative approach narrowly aligning discrimination with classification while the judicial approach focuses on the practical realities of stereotypes and statistics. Following the path set by Brown v. Board of Education, this article suggests that we pause to rethink the power of stereotypes and how we have defined discrimination within its narrow and static alignment with classification. To demonstrate how such a reconceptualization might happen, this article applies a model of discrimination based on historic stereotypes and statistical evidence of disparate outcomes to the Appalachian history. Such an approach is particularly appropriate given that we seem unable to define such concepts as "race" and "ethnicity," even while we narrowly tailor legal protections to those classifications.

Keywords: Discrimination, Appalachia, Protected Classes, Employment Law, Legal History

JEL Classification: K10, K20