Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as a defining feature of antidiscrimination law. Yet an ongoing debate exists over whether and why antidiscrimination law must or should make reference to group status. I was recently invited to speak at a symposium that explored this topic. The symposium was titled “The Protected Class Approach to Antidiscrimination Law: Logic, Effects, Reform,” and the speakers’ articles have been published in an issue of the Lewis & Clark Law Review. My article, which is titled “Toward Positive Equality: Taking the Disparate Impact out of Disparate Impact Theory,” investigates the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. My analysis reveals the value in considering a practice-conscious rather than a group-conscious approach to legal regulation of workplace practices. Rather than tailoring legal protection by allowing only members of certain groups to challenge the business necessity of any exclusionary employment practice, legal protection could instead be tailored by allowing any worker to challenge the business necessity of only certain suspect practices. My article helps identify the subset of practices that should be subject to such universal challenge, and it analyzes the benefits and shortcomings of a practice-conscious approach to advancing a norm of positive equality in the workplace.
Click here to read “Toward Positive Equality: Taking the Disparate Impact out of Disparate Impact Theory.”
