GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Forthcoming

Abstract

Employment discrimination law is under sustained retrenchment, nowhere more so than in hiring, the gateway to work and the foundation of equal employment opportunity. A recent executive order declared the disparate impact theory—a key doctrine of hiring equality—unconstitutional and barred its use by the federal government. The Supreme Court’s curtailment of race-conscious admissions has cast serious doubt on the future of affirmative action in employment. Enforcement agencies have redirected their efforts, abandoning disparate impact suits, scrutinizing employers’ diversity initiatives, and soliciting claims by white men. These developments further weaken a regime that has long struggled to redress discrimination at the hiring stage. Nearly a quarter century after audit studies revealed that identical resumes yield markedly different outcomes depending on whether they bear Black- or white-sounding names, hiring discrimination against Black applicants and other underrepresented groups persists.

This Article advances a theory of information regulation as antidiscrimination to confront these challenges and to remedy enduring gaps in employment discrimination law.  Effective enforcement of Title VII presupposes that workers possess sufficient information to identify and contest discrimination. Yet rejected applicants typically lack meaningful insight into employer decisionmaking. At the same time, employers have broad access to information about applicants—even trivial cues such as names—that can trigger significant bias. Recognizing that job applicants are outsiders to the firm, the Article conceptualizes hiring discrimination as a double-sided information problem: too much potentially biasing information flows to employers, and too little enforcement-relevant information flows to candidates. If discrimination in hiring is structured by information flows, it can be mitigated by recalibrating them.

The Article develops a set of interventions designed to restructure the informational architecture of hiring. Ignorance measures—such as anonymized resumes, skills-based screening, and targeted “don’t ask” rules—limit employers’ access to information that facilitates discrimination. Transparency measures—such as disclosure of hiring criteria or reasons for rejection—equip applicants with the knowledge needed to vindicate statutory rights.  In proposing reforms, the Article draws on emerging bipartisan initiatives to articulate a politically durable template for information regulation as antidiscrimination that can be justified in the language of both equality and merit.  In an era of civil rights contraction, reorienting employment discrimination law around information regulation provides a stable foundation for workplace equality.

GW Paper Series

2026-31

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