Date of this Version
Steven L. Willborn, Transparency and Reliance in Antidiscrimination Law, 71 Cath. U. L. Rev. 507 (2022). Available at: https://scholarship.law.edu/lawreview/vol71/iss3/8
All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not preclude employer inquiries into disability status. On reliance, most antidiscrimination statutes, like Title VII, ban reliance on disfavored factors. But other statutes do the opposite of banning reliance – they require employers to rely on the factor. For example, a general feature of accommodation statutes is an obligation on employers to rely on the identified factor. Still other laws, like the salary-ban laws, permit but do not require reliance. This article is the first to explore these important and surprisingly unnoticed and unexplored features of antidiscrimination laws. Viewing antidiscrimination laws through the lens of transparency and reliance presents a new and interesting way to think about current laws and a roadmap for thinking about where future laws should be placed within the transparency-reliance matrix.