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Employment Discrimination
University of Pennsylvania School of Law
Mayeri, Serena

EMPLOYMENT DISCRIMINATION
 
 
I. INTRODUCTION
 
Approaches to Anti-Discrimination:
·        Anti-differentiation
o       A/k/a “formal equality “colorblindedness”
o       Harm inherent in differentiating between individuals based solely on status/group membership;/identiy
o       Focuses on individual, rather than group
o       Tends to be forward-looking—Past is irrelevant to determining what is fair today
o       STRENGTHS: 
§         meritocracy, gets rid of discrimination that has no relationship a person’s ability to perform the job
§         Recognizes individuality, that members don’t necessarily represent their group
§         Avoids perpetuating idea notions of inferiority of certain groups, by not assuming that certain groups need incorporation
o       WEAKNESSES:
§         Ignores existence of unequal playing field that was created in the past
§         Difficult to implementà unconscious bias
§         Ignores positive value of group identites
§         Falsely assumes objectivity of meritocracy
§         May create illusion of objectivity/non-differentiation; hide unintentional differentiation
§         Must be implemented slowly, which might continue to perpetuate stereotypes
§         Difficulties of identifying groups that are disadvantaged without taking into account their group status
·        Anti-Subordination
o       A/k/a “anti-caste”
o       Tries to prevent or rectify the subordination of one group to another
o       Emphasis on groups, though also concerned with individuals
o       Take group status into account for the purpose of eradicating subordination
o       Tends to backward-looking: past is relevant to what should be done now
o       STRENGTHS:
§         Recognizes unequal playing field of the past and its potential effects in the present
§         More expeditious method of achieving change
§         Compensation for past discrimination; dignitary benefit of rectifying past harm
§         Side benefit for increasing diversity
o       WEAKNESSES:
§         Highlights the barriers between groups
§         Places individuals

to create a diverse environment for its own sake
o       Could be focused on group representation or could take into account individual characteristics
o       Forward-looking, though may look backward to determine the meaning of diversity
o       STRENGTHS:
§         Breakdown stereotypes by increasing exposure among different groups
§         Recognizes strengths in all groups; affirms identities of different individuals
§         Focuses on positive aspects of differences rather than suggesting that particular groups need special treatment
§         Idea that diversity of backgrounds leads to innovation, new ideas
o       WEAKNESSES:
§         Lack of consensus about what diversity actually is.
§         Diversity doesn’t mean equality; disparities of power may persist
Representation expectations-causing individual discomfort