Reflections on Equality, Adjudication, and the Regulation of Sexuality at Work: A Response to Kim Yuracko

29 Pages Posted: 16 Nov 2016  

Orly Lobel

University of San Diego School of Law

Date Written: 2006

Abstract

I make three observations on Yuracko's thesis to explain these ideas. First, in Part II, I argue that it is possible to explain the case law distinctions between various categories of BFOQ claims within the liberal model of antidiscrimination. Specifically, I turn to a more robust analysis of the antisubordination paradigm than Yuracko describes in her paper. I argue that we should consider the dangers of under-inclusion in one sector as the result of structural inequalities across the workforce. Because of the need to take a more macro approach in addressing the effects of discrimination on the market at large, I also argue that as a matter of policy, the courts are often not best situated institutionally to promote labor market gender equality. In particular, discrimination that stems from disparate impact, which requires a macro understanding of the current market, past wrongs, and the ongoing effects of social group hierarchies, would benefit from a more active administrative agency rather than a court-focused process. While Yuracko and many other commentators equate antidiscrimination regulation with adjudication, I argue that it is desirable to allow the Equal Employment Opportunity Commission (EEOC) a greater role than it currently plays in the administration of antidiscrimination law.

Keywords: Bona Fide Occupational Qualification, Antidiscrimination Law, Disparate Impact, Employment Discrimination, Title VII, Title 7

Suggested Citation

Lobel, Orly, Reflections on Equality, Adjudication, and the Regulation of Sexuality at Work: A Response to Kim Yuracko (2006). San Diego Law Review, Vol. 43, No. 4, 2006. Available at SSRN: https://ssrn.com/abstract=2870082

Orly Lobel (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

HOME PAGE: http://home.sandiego.edu/%7Elobel/

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