Is Title VII an "Anti-Discrimination" Law?

Univ. of Wisconsin Legal Studies Research Paper No. 1704

93 University of Colorado Law Review Forum (Forthcoming 2021)

8 Pages Posted: 8 Jun 2021

See all articles by Anuj C. Desai

Anuj C. Desai

University of Wisconsin Law School

Date Written: June 7, 2021

Abstract

Title VII of the Civil Rights Act of 1964 is commonly referred to as an “anti-discrimination” statute. At its core, we are told, it prohibits something we call “discrimination.” But does it? Startlingly, the answer is, no, not really. Instead, Title VII prohibits certain acts done for certain reasons. True, the prohibited reasons are precisely what everyone has long understood them to be: “because of … race, color, religion, sex, [or] national origin.” But, the prohibited acts do not require “discrimination” and in those cases where the term “discrimination” is relevant, “discrimination” simply means “make a distinction.” It does not connote any wrongfulness on the employer’s part and therefore does not mean “make an unjust distinction.” In short, Title VII is not an anti-discrimination statute, at least not as we ordinarily conceive the concept of “discrimination.”

Keywords: Anti-Discrimination, Civil Rights Act of 1964, Title VII, Statutory Interpretation, Supreme Court, Legal History, Judiciary, Legislation

Suggested Citation

Desai, Anuj C., Is Title VII an "Anti-Discrimination" Law? (June 7, 2021). Univ. of Wisconsin Legal Studies Research Paper No. 1704, 93 University of Colorado Law Review Forum (Forthcoming 2021), Available at SSRN: https://ssrn.com/abstract=3861947

Anuj C. Desai (Contact Author)

University of Wisconsin Law School ( email )

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