Disaggregated Discrimination and the Rise of Identity Politics

Abstract

Prevailing theories of employment discrimination law seek to unify the field at a high level of abstraction based on general definitions of equality and discrimination. Yet the law on the ground stubbornly resists these calls for unification. It has, instead, proliferated into a variety of different prohibitions applicable to discrimination on different grounds. These centrifugal tendencies are so pronounced that they threaten to dissolve the field into special interest legislation characteristic of identity politics. Each “protected group” might advance its own interests unique to its situation. This article argues that, in fact, the opposite is the case. Reducing the general principles to specific statutory prohibitions and their interpretation offers the opportunity to compromise the legitimate interests of competing groups. The resulting doctrine may not be simple, but it is effective in gaining acceptance of the resulting prohibitions and in promoting equal citizenship in public life. This article documents this conclusion with respect to a variety of current issues, such as affirmative action, sexual harassment, sexual orientation, accommodation of religious practices, and the distinctive problems of age and disability discrimination.

Keywords: discrimination, equality, sexual orientation, sexual harassment, religion, affirmative action