Yuracko on Sex and Race
Kim Yuracko (Northwestern) has just posted on SSRN her article
(forthcoming Northwestern L. Rev.) The Antidiscrimination Paradox: Why Sex
Before Race?. Here's the abstract:
This paper seeks to explain a paradox: Why does Title VII's 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's ongoing commitment to racial transcendence and gender
essentialism.
--
Eugene McElroy
Rutgers University
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