Disaggregated Discrimination: Implications of the Expansion of Title VII
28 Pages Posted: 27 Aug 2018
Date Written: August 24, 2018
Prevailing theories of employment discrimination law seek to unify the field at a high level of conceptual abstraction. These theories have sought to justify prohibitions against discrimination in goals as various as preventing demeaning distinctions based on personal characteristics, or dismantling bottlenecks to individual opportunity. The very multiplicity of these theories undermines their claim to completeness. If more than one is plausible, then none appears to be complete and exclusive of the others. None provides the whole story of why discrimination is wrong. Moreover, these theories operate at such a high level of abstraction that they become vulnerable to compromise as they are reduced to operational prohibitions. This article argues that the proliferation of legal prohibitions against employment discrimination, and the exceptions and qualifications that have accompanied them, have generated divergence in application and enforcement. Instead of seeking uniformity based on the essential nature of prohibited discrimination, interpretation should aim for workable adjustments that take account of the distinctive character of different forms of discrimination in different settings. Taking this step will not eliminate controversy, which remains inevitable, but it will make it more manageable as it is channeled towards concrete issues of compliance and enforcement.
Keywords: discrimination, equality, sexual orientation, sexual harassment, religion, affirmative action
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