Antidiscrimination law faces a fundamental design question: the choice between symmetry and asymmetry. A symmetrical law prohibits discrimination on the basis of a trait for a universal class of persons, and for both “sides” of the trait. An asymmetrical law prohibits discrimination on the basis of one “side” of the trait, and for a limited class of persons. Current law is inconsistent in its design. For example, employment discrimination law prohibits race discrimination symmetrically (everyone is protected, and on the basis of any race), but prohibits disability discrimination asymmetrically (only the disabled are protected, and only on the basis of disability). This critical design choice has received scant attention outside of the affirmative action context, leaving this key inconsistency in current law unexplained, and the implications unexplored.
Relying on employment discrimination law and the traits of race, sex, disability, and age as core examples, this Article provides the first systematic study of this design choice. It makes the case for symmetry on three grounds: purpose, practice, and politics. As for the purpose of antidiscrimination law, this Article reaches the counterintuitive conclusion that a symmetrical design that protects everyone is effective not only at reducing classifications on the basis of protected traits, but also at improving the labor market circumstances of subordinated groups. When it comes to practice, a symmetrical law avoids challenges arising from protected-class determinations that limit plaintiffs’ ability to pursue their claims. Finally, symmetrical antidiscrimination laws are more likely to produce positive policy feedback, generating greater support for these laws. After discussing how to optimize symmetry, this Article explores further applications, including additional traits, such as appearance and sexual orientation, and additional areas of law, such as housing law, education law, and constitutional law.
GW Paper Series
GWU Law School Public Law Research Paper No. 2016-56; GWU Legal Studies Research Paper No. 2016-56
Schoenbaum, Naomi, The Case for Symmetry in Antidiscrimination Law (September 12, 2016). Forthcoming in Wisconsin Law Review, 2017; GWU Law School Public Law Research Paper No. 2016-56; GWU Legal Studies Research Paper No. 2016-56. Available at SSRN: https://ssrn.com/abstract=2837737