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Antidiscrimination law appears to be of two minds. The law aggressively polices discrimination in some realms, while leaving other realms to be governed by the preferences of their participants. In their essay, Professors Katharine Bartlett and Mitu Gulati suggest recalibrating the boundaries of this area of law so that it covers discrimination in an area that the law now leaves largely up to the realm of personal preference: discrimination by customers. While Bartlett and Gulati consider a direct ban on discrimination by customers, they reject this approach in favor of regulating firms. They describe this proposal as “modest.”

This Response considers the claim that such a proposal amounts to a modest change in the law, and then addresses the consequences of regulating discrimination by customers through firms. As a descriptive matter, this Response suggests that Bartlett and Gulati’s negligence-like proposal represents a fairly substantial break with current antidiscrimination laws regulating firms. This fact does not necessarily weigh against their proposal. A substantial break in the law may be required to deal with a sufficiently troubling problem. In fact, Bartlett and Gulati’s work might lead us to consider anew whether antidiscrimination law should hold firms to a negligence standard in a broader range of circumstances. As a normative matter, this Response highlights the downsides of regulating customer discrimination through firms, including some of the same concerns — such as efficacy — that motivate Bartlett and Gulati to reject customer liability. These downsides do not require a rejection of firm liability in favor of either customer liability or no liability. However, they must be accounted for in considering the optimal approach. Finally, this Response argues that allowing firms too much leeway to take account of discriminatory customer preferences under a BFOQ-type exception — a concern under Bartlett and Gulati’s proposal — fails to hold firms accountable for their role in cultivating these preferences.

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GWU Law School Public Law Research Paper No. 2017-50; GWU Legal Studies Research Paper No. 2017-50

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