Preface

• Pages: 5-6
• Author: George A. Rutherglen

v

PREFACE

Since the last edition of this book, developments have only

accelerated as the Supreme Court has decided a series of

constitutional decisions with wider and more profound implications

for employment discrimination law. Currently pending before the

Court is an individual claim of reverse discrimination, which follows

hard on the heels of decisions invalidating mo st forms of affirmative

action in higher education. These decisions have implications for

class claims of intentional discrimination and of disparate impact,

both heavily dependent on statistical evidence of discrimination.

The renewed controversy over abortion, now taking place mainly

at the state level, continues to pose problems for employers trying to

comply with both state and federal law. Recently enacted statutes,

like the Pregnant Workers Fairness Act, seeming ly cushion the

potential impact of the abortio n de cision, but complicate efforts at

compliance. Working out the consequences of the Court’s recent

constitutional decisions comes down to delicate balance between

theory and p ractice: theory in preserving a commitment to equal

opportunity, and practice, in recognizing that the forms this

commitment takes has shifted to more conservative concep tions of

equality.

The role of theory, in the form of abstract philosophical

principles, has given way to history, as a shift to poli tically

influential practical conside rations. Traditional expansion of anti-

discrimination law, typical of the 1960s and 1970s, now must adjust

to the compromises required by more conservative politics. This zig-

zag development of the law gives renewed force to the historical

analysis offered in Chapter 1 of this edition.

A similar pattern emerges from my companion volume, After

Affirmative Action: The Future of the Past in Employment

Discrimination Law. The focus there, as the title indicates, is up on

affirmative action, while this volume covers the wh ole range of

issues, substantive, pro cedural, and remedial, found throughout

employment discrimination law. The need for a deeper historical

background magnifies the challenge s facing lawyers, scholars, and

law students in understanding this subject. This book is addressed

to them.

Technical legal rules, as much as grand statements of principle,

have shaped the different pe rspectives that can be taken on

fundamental questions of equality. The recent constitutional

decisions simply represent a new twist on this recurrent them,

evident in different eras in the evolution of this field.