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Treatment as an Individual and the Priority of Persons over Groups in Antidiscrimination Law

29 Pages Posted: 5 Oct 2016  

Patrick S. Shin

Suffolk University Law School

Date Written: October 4, 2016

Abstract

The Supreme Court has said that the Equal Protection Clause of the Constitution and Title VII’s prohibition of discrimination require that all persons be treated as individuals and that the laws operate primarily to protect “persons, not groups.” This article shows that the legal requirement of individual treatment has two distinct components: a rule invalidating inferences about persons based on their membership in protected groups and a rule prohibiting disparate treatment for the sake of group interests or intergroup equality. The first rule is rooted in moral principles of respect for individual autonomy. The second rule is a principle that gives lexical priority to individual rights over group welfare. Both are formal, anti-classification rules that abjure reliance on group concerns, and both are central to antidiscrimination law. Neither rule, however, mandates group-blindness or entails the categorical irrelevance of group classifications. Antidiscrimination law cannot be completely understood without reference to goals of substantive intergroup equality. The rules of individual treatment and the protection of “persons, not groups” represent formal constraints on the means by which substantive equality can be sought. They should not be mistaken as substitutes for it.

Keywords: discrimination, individual treatment, autonomy, affirmative action, racial profiling, equality

Suggested Citation

Shin, Patrick S., Treatment as an Individual and the Priority of Persons over Groups in Antidiscrimination Law (October 4, 2016). Duke Journal of Constitutional Law & Public Policy, Vol. 12, No. 1, 2016; Suffolk University Law School Research Paper No. 16-11. Available at SSRN: https://ssrn.com/abstract=2847712

Patrick S. Shin (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8182 (Phone)
617-305-3090 (Fax)

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