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The Supreme Court’s decision in Wal-Mart Stores v. Dukes received much attention for what it means for collective litigation. Far less attention has been paid to what the case reveals about sex discrimination law. This symposium contribution uses an overlooked aspect of the Dukes case — the challenge to Wal-Mart’s relocation policy — as a lens to explore employment discrimination law’s failure to adequately take account of employees’ families in a way that further entrenches the family-market divide and seriously hinders the promise of sex discrimination law.

The challenge to the relocation policy exposes how employment discrimination law simultaneously pays too little and too much attention to the family. Under the disparate treatment theory, the law ignores systematic sex-based harm to the employee’s family that arises from the intersection of an employer policy with gendered family structures. But under the disparate impact theory, the law risks presupposing these family phenomena in a way that reinforces the very sex stereotypes that the law is meant to eradicate. By simultaneously ignoring the family and assuming its contradiction with the market, Title VII continues to uphold the theoretical divide between family priorities and market demands. This Article explores these shortcomings of employment discrimination law and proposes how the law might overcome the family – market divide by acknowledging the family’s role in limiting employment opportunities without entrenching harmful sex stereotypes.

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GWU Legal Studies Research Paper No. 2013-96 ; GWU Law School Public Law Research Paper No. 2013-96

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