Protected Class Gatekeeping

82 Pages Posted: 14 Jan 2017 Last revised: 11 May 2017

Date Written: May 10, 2017

Abstract

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed claims by white people alleging they were harmed by white supremacist violence and straight people alleging they were harmed by homophobic harassment. This Article terms this phenomenon “protected class gatekeeping.” It argues that protected class gatekeeping is grounded in dubious constructions of antidiscrimination statutes, and that its routine use prevents equality law from achieving its central aim: dismantling sexism, racism, homophobia, religious intolerance, and other such biases. While past scholarship has identified certain forms of protected class gatekeeping, it has not recognized the scope of the problem or addressed the progressive intuitions that underlie it. Critical examination of protected class gatekeeping is of pressing importance as legislatures, courts, and legal scholars debate new statutory language and doctrinal frameworks for discrimination claims.

Suggested Citation

Clarke, Jessica, Protected Class Gatekeeping (May 10, 2017). New York University Law Review, Vol. 92, No. 1, pp. 101-182, 2017. Available at SSRN: https://ssrn.com/abstract=2898532

Jessica Clarke (Contact Author)

Vanderbilt University Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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