Employment Discrimination: Law and Theory

George A. Rutherglen, University of Virginia School of Law

John J. Donohue III, Stanford Law School

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Table of Contents

2023 Update Memo

Decisions of the Supreme Court continue to alter the landscape of employment discrimination law, on issues as different as the burden of proving retaliation to reasonable accommodation of pregnancy and reasonable accommodation of religious garb. Most dramatically, the Supreme Court has recently interpreted the prohibition against sex discrimination in Title VII to include discrimination on the basis of sexual orientation and gender identity. This interpretation of the statute leads to further issues concerned with the need for statutory exceptions and elaboration, as in legislation currently pending before Congress. In the opposite direction, this development can be traced back to changes in constitutional law which protect the right to gay marriage. From the beginning, constitutional law has exercised a pervasive influence over interpretation of the statutes against employment discrimination. The constitutional standards for affirmative action, addressed in the context of higher education, signal further restrictions on affirmative action in employment. So, too, the burst of public allegations of sexual misconduct by public figures and corporate executives raise the question whether the prohibition against sexual harassment has been adequately enforced.

These developments call for reassessment of the contents of a basic course on employment discrimination. Decisions that took a salient place in earlier editions of this casebook now appear in a different light and, in a number of instances, require that excerpts from them be condensed and that more space given to recent decisions and their implications.

While taking account of these complexities, we have tried to preserve the relative simplicity and compact coverage of an introductory casebook to an area of law that continues to grow more detailed and nuanced. Keeping the larger questions in view, and the controversial arguments that surround them on all sides, remains our goal. A complete account of the law cannot be static, just what it is today, without considering what it might be tomorrow. This new edition takes account of changes in the law, both obvious and subtle, tries to relate them to basic principles of fairness regardless of group membership, the need to allow employers to maintain efficient practices in the workplace, and the demands on the courts to articulate sound rules of interpretation and enforcement.

Learn more about this series.