Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act of 1964, courts settled on an idea of what sex discrimination looks like—formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.
I argue that the lived experience of discrimination should determine employment discrimination doctrine and not the other way around. Accordingly, I propose a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. I argue that sex discrimination law can and should work this way, too.
On a broader level, the paper makes a strong normative claim about the substance of Title VII’s sex equality project. I argue that sex discrimination law needs to recalibrate its vision of equality. Difference is universal. No two women (or men) are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize—and, in turn, protect—the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.
Zachary A. Kramer, The New Sex Discrimination, 63 Duke Law Journal 891-953 (2014).
Available at: http://scholarship.law.duke.edu/dlj/vol63/iss4/2