The Logic of American Antidiscrimination Law

Abstract

American law has tended to follow the paradigmatic logic of what Paul Brest long ago identified as the antidiscrimination which holds that social characteristics likely to produce prejudice should be ignored in decisionmaking processes. The ultimate expression of this logic is reflected in those ordinances that prohibit discrimination based upon appearance itself. Such ordinances in effect place employees behind a of ignorance with regard to employers, so that all possibilities of prejudice based upon superficial characteristics have been eliminated. But in such circumstances employers must differentiate between employees based upon performance, and the principle thus transforms employees into the objects of Weberian rationalization. In contradistinction to this logic, the article proposes a sociological account of law, in which the law is understood as a social practice that operates on other social practices (such as those which construct race and gender) in order to modify them. On this sociological account, race and gender do not disappear behind a veil of ignorance, but are actively reconstructed. The article examines Title VII's prohibitIon of sex discrimination to demonstrate that, while Title VII doctrine follows the abstract prescriptions of the principle, Title VII cases actually conform to the predictions of the sociological account. The article concludes by methodologically comparing the principle with the sociological account.