A Theory of Discrimination Law

A Theory of Discrimination Law (Oxford University Press 2015)

Oxford Legal Studies Research Paper No. 40/2015

25 Pages Posted: 9 Jul 2015

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: May 15, 2015

Abstract

It doesn’t care if your boss fires you because you happen to be a Sagittarius. But a hiring policy that requires a college degree could land him in court. Discrimination law can be counter-intuitive and controversial. Marrying doctrine from five jurisdictions with contemporary political philosophy, this book provides a theoretical defence of this now maturing legal project. More fundamentally, the value of discrimination law is to be found in its enabling us all to lead flourishing lives.

Part I gives a theoretically rigorous account of the identity and scope of discrimination law: what makes a legal norm a norm of discrimination law? What is the architecture of discrimination law? Unlike the approach popular with most textbooks, the discussion eschews list-based discussions of protected grounds, instead organising the doctrine in a clear thematic structure.

This definitional preamble sets the agenda for the next two parts. Part II draws upon the identity and structure of discrimination law to consider what the point of this area of law is. Attention to legal doctrine rules out many answers that ideologically-entrenched writers have offered to this question. The real point of discrimination law, this Part argues, is to remove abiding, pervasive, and substantial relative group disadvantage. This objective is best defended on liberal rather than egalitarian grounds.

Having considered its overall purpose, Part III gives a theoretical account of the duties imposed by discrimination law. A common definition of the antidiscrimination duty accommodates tools as diverse as direct and indirect discrimination, harassment, and reasonable accommodation. These different tools are shown to share a common normative concern and a single analytical structure. Uniquely in the literature, this Part also defends the imposition of these duties only to certain duty-bearers in specified contexts. Finally, the conditions under which affirmative action is justified are explained.

Keywords: discrimination law, equality, liberty, theory, philosophy, jurisprudence

Suggested Citation

Khaitan, Tarunabh, A Theory of Discrimination Law (May 15, 2015). A Theory of Discrimination Law (Oxford University Press 2015); Oxford Legal Studies Research Paper No. 40/2015. Available at SSRN: https://ssrn.com/abstract=2628112

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

NYU Law School ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Berkeley Center on Comparative Equality Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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