The Antidiscrimination Paradox: Why Sex Before Race?

This paper seeks to explain a paradox: Why does Title VII\u27s prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture--in particular society\u27s ongoing commitment to racial transcendence and gender essentialism

Soul of a Woman: The Sex Stereotyping Prohibition at Work

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act\u27s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually does mean in courts\u27 current sex discrimination jurisprudence. I reject the interpretations most often offered by scholars--namely that the prohibition requires either freedom of gender expression or sex-blind neutrality. I argue that the prohibition reflects not a coherent antidiscrimination principle but a pragmatic balancing test. I conclude by arguing that the prohibition has not lived up to its rhetorical promise. Indeed, the implications of the prohibition are both dangerous and ironic in ways not previously recognized. While the prohibition has extended Title VII\u27s protection to workers who had previously been excluded, it does so by relying on and reinforcing traditional gender categories. Moreover, by doing so the prohibition actually protects some individuals at the expense of the class whose subordination stemming from socially salient gender norms remains intact

Does Marriage Make People Good or Do Good People Marry?

Social norms, not marriage, are transformative. This article considers whether marital norms like stability, commitment, and sexual fidelity are responsible for positive parenting effects and child well-being, or whether the institution of marriage is responsible. Marriage does not transform people into good spouses and good parents. Instead, people must be transformed before entering the institution of marriage. While Wilson believes that state supported marriage can spread social norms and values that benefit children, this author concludes that state supported marriage should not benefit the most advantaged, but should reinforce social norms and values and provide state benefits to all parents, not just married ones

Sameness, Subordination, and Perfectionism: Toward a More Complete Theory of Employment Discrimination Law

This Article focuses on two muddled and contested areas of sex discrimination case law - the first deals with sexuality and the second with gender nonconformity in the workplace. Both are areas in which courts, at times, impose significant accommodationist demands on employers in the name of Title VII\u27s antidiscrimination mandate. Section II addresses cases in which employers attempt to discriminate on the basis of sex in order to protect customers\u27 personal or sexual privacy or to provide customers with a particular kind of sexual titillation. As a general matter, courts permit discrimination in the first type of case - imposing no accomodationist demands on employers, while prohibiting discrimination in the latter - imposing significant accommodationist demands. Section III addresses claims by gender nonconforming women and men that Title VII protects them from disadvantage in the workplace. In such cases courts require employers to hire some, but not all, gender nonconforming individuals despite discomfort from coworkers and customers, thereby imposing significant accommodationist costs on employers in the instances in which discrimination is prohibited. I contend that the antidiscrimination demands imposed on employers in these areas cannot be fully understood and explained by resort to Title VII\u27s core liberal commitments, but instead reflect underlying and implicit judicial conceptions of human flourishing. These judicial conceptions of human flourishing need not be deliberate, nor even conscious, but a recognition of their presence is necessary to explain, or render intelligible, the current state of sex discrimination caselaw. In other words, at least at the margins, the scope of Title VII\u27s antidiscrimination protection is driven by judicial judgments about what kinds of people, with what kinds of traits and attributes, are valuable enough to be worth the costs of inclusion. Before turning to an analysis of the case law, I begin by discussing briefly the concepts that are critical to my analysis

Writing Highs and Lows

Professor Kimberly Yuracko explores the high and low reasons why academics write. In her opinion, the high reasons seem more noble and pure than the low reasons

The Antidiscrimination Paradox: Why Sex Before Race?

This paper seeks to explain a paradox: Why does Title VII\u27s prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture--in particular society\u27s ongoing commitment to racial transcendence and gender essentialism

Toward Feminist Perfectionism: A Radical Critique of Rawlsian Liberalism

[No abstract