The protected class approach to employment discrimination has not solved the problem of discrimination or of a just distribution of resources. Not only do race and sex prejudice continue to exist, but material and subjective disadvantage continues to be strongly linked to race and sex. While our laws have made social changes, progress on those changes stalled in the 1980s. Some might even say that the protected class approach to discrimination has actually entrenched inequality more deeply into our social fabric.
This Article seeks a purpose-driven approach to finding solutions to the problems of discrimination, asking why it is that we prohibit discrimination and what we hope to accomplish through law. It advocates for a focus on some baseline of substantive equity for everyone, separated from particular employment relationships, and not contingent on identity. Such a shift might take pressure off of our antidiscrimination laws, which in turn might allow them and the market to operate to promote more equality for historically disadvantaged groups.
McCormick, Marcia L., Decoupling Employment (May 9, 2012). Lewis & Clark Law Review, Vol. 16, p. 490, 2012.