Contemporary discrimination law is in crisis, both methodologically and conceptually. The judiciary’s favored heuristic for observing discrimination – a comparator who is like the discrimination claimant but for the protected characteristic – has nearly depleted discrimination jurisprudence and theory. The resulting deficit can be explained, in turn, by the comparator methodology’s profound mismatch with current understandings of identity discrimination and the realities of the modern workplace. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty amplifies for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By collapsing an observational heuristic into a defining element of discrimination, courts have largely foreclosed these theories from consideration, leaving the mismatch in place and sharpening the divide between theory and practice. At the same time, courts have further shrunk the very idea of discrimination by disregarding the lesson of harassment and stereotyping jurisprudence that discrimination can occur without a comparator present.
Source: Columbia Public Law & Legal Theory Working Papers. Paper 9185.
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