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The Symmetry Principle, Brad Areheart
The Symmetry Principle, Brad Areheart
College of Law Faculty Scholarship
Title VII provides symmetrical protection against discrimination; both blacks and whites, men and women may avail themselves of the law’s protections. In contrast, the Age Discrimination in Employment Act operates asymmetrically, shielding workers over the age of forty yet offering no reciprocal protection for younger workers. Why do some antidiscrimination laws protect symmetrically while others do not? More importantly, why does this design choice matter? These are questions that scholars, courts, and legislators have generally ignored. This Article proceeds in two parts. First, it identifies symmetry as an important, yet frequently overlooked, way in which American antidiscrimination laws differ. Second, …
Gina, Privacy, & Antisubordination, Brad Areheart
Gina, Privacy, & Antisubordination, Brad Areheart
College of Law Faculty Scholarship
This Essay briefly considers both the current and optimal role of privacy in employment discrimination jurisprudence. The recently passed Genetic Information Nondiscrimination Act (GINA) is illustrative of one way to value privacy through employment discrimination mandates. In particular, GINA includes a prohibition on the use of genetic information in all employment decisions, affording a measure of genetic privacy to potential and current employees.GINA stands in contrast to prior employment discrimination statutes, which have often encouraged or required employers to be knowledgeable of and consider particular identity traits through policies such as reasonable accommodation and affirmative action, and the disparate impact …
The Anticlassification Turn In Employment Discrimination Law, Brad Areheart
The Anticlassification Turn In Employment Discrimination Law, Brad Areheart
College of Law Faculty Scholarship
The distinction between antisubordination and anticlassification has existed since the 1970s and has been frequently invoked by scholars to advocate for certain readings of antidiscrimination law. The anticlassification principle prohibits practices that classify people on the basis of a forbidden category. In contrast, the antisubordination principle allows classification (or consideration of, for example, race or sex) to the extent the classification is intended to challenge group subordination.While most scholars writing about antisubordination and anticlassification have done so in the context of equal protection, this Article systematically applies antisubordination and anticlassification values to assess recent developments in employment discrimination law and …