Domains of Policy: Law and Society Perspectives on Antidiscrimination Law

AuthorDonna E. Young
Pages212-227
The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.
© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.
Introduction
This chapter examines antidiscrimination law in the United States and focuses on
the ways in which the narrowly drawn parameters of American antidiscrimination
law have made it difficult to address systemic inequality and subordination through
current legal means. It will explore approaches to equality found in legal theory and
in juridical models of constitutional interpretation, and assess US and international
models of antidiscrimination law and equality jurisprudence. Through its interpre-
tation of the Fourteenth Amendment Equal Protection Clause and Title VII of the
1964 Civil Rights Act, the United States Supreme Court has provided a rather
emaciated version of equality that has been largely rejected by courts in other
countries.
In the United States equality has been contemplated and enforced through laws
that had as their principal focus the prevention of race discrimination against
African Americans. The principal purpose of the Fourteenth Amendment was to
admit black people to citizenship. Other forms of bigotry and discrimination were
not of prime importance, but were instead read into the protections of the equal
protection clause through case law. Principles of equality derive from two main
sources in the United States: the Equal Protection Clause of the Fourteenth
Amendment to the US Constitution and the 1964 Civil Rights Act. Equality as
defined through judicial interpretation of the equal protection clause has influ-
enced how equality is understood in the context of statutory civil rights laws as
well. Consequently, any weaknesses in the American approach permeate the entire
antidiscrimination legal model. These shortcomings include an overly narrow
Domains of Policy
Law and Society Perspectives
onAntidiscrimination Law
Donna E. Young
14
Perspectives on Antidiscrimination Law 213
focus on actionable grounds of discrimination based on identity characteristics,
such as race, color, sex, national origin, disability and religion, and an undue focus
on the motivations of individual decision makers with regard to individual claims
of discrimination and on an understanding of discrimination that aspires only to
formal equality between groups rather than substantive equality and access to
social resources. In contrast to the equality guarantees available under American
law, equality enjoys a more expansive definition in countries that have more
modern constitutions and that have adopted a contemporary, less formalistic
approach to antidiscrimination law. International constitutional systems such as
those found in Canada, South Africa and the European Union have moored their
constitutions in substantive social, economic and cultural guarantees that contem-
plate a broader range of protected characteristics, that allow for affirmative action,
and that attempt to address systemic subordination.
As a result of dissatisfaction with the American model, the influence of the US
Constitution, once the most important model for new constitutions around the
world, has declined dramatically. For example, according to David Law and Mila
Versteeg, in 1987, “160 of the 170 nations then in existence had modeled their
constitutions upon our own.” (Law and Versteeg 2012: 674).1 However, a quarter‐
century later, “the U.S. Constitution appears to be losing its appeal as a model for
constitutional drafters elsewhere” (L aw and Versteeg 2012: 850). In addition, the
study concluded, “among the world’s democracies … constitutional similarity to
the United States has clearly gone into free fall.” (Law and Versteeg 2012: 801).
Moreover, in a rather surprising admission, Supreme Court Justice Ruth Bader
Ginsburg stated, “I would not look to the United States Constitution if I were
drafting a constitution in the year 2012” (Liptak 2012: A1). She recommended,
instead, consulting the South African Constitution, the Canadian Charter of
Rights and Freedoms, or the European Convention on Human Rights. It follows
that a comparative examination of e quality jurisprudence might provide an under-
standing of how best to address persistently grave and widespread inequalities
which can be measured in various ways, for example by detailing widening income
inequality, the slipping of the median family income, the diminishing social
mobility, the unacceptably high poverty rate, the disparate rates of incarceration,
domestic and sexual assault, infant mortality, health outcomes, educational attain-
ment, and hate crimes. It is worth asking whether any of these problems can be
addressed through our current antidiscrimination laws that have been rather
insensitive to widespread conditions of inequality. The answer to this question no
doubt plays a role in the waning prestige of t he US Constitution and the United
States Supreme Court.
This chapter provides a brief overview of foundat ional antidiscrimination cases
in the United States in order to frame the issue and provide historical context for a
comparative approach. Since courts are bound by the precedents they set, some of
the early cases interpreting the equal protection clause have constrained the Court’s
approach to equality and thwarted efforts to seek redress through legal means. The
chapter will then compare constitutional interpretation in the United States,

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