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Protecting Protected Characteristics: Statutory Solutions for Employment Discrimination Post-Bostock

Posted by on Wednesday, May 22, 2024 in Notes, Volume 77, Volume 77, Number 4, Volumes.

Chase Mays | 77 Vand. L. Rev. 1303

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Significantly, these protected characteristics are undefined, and judicial interpretations of race, sex, and national origin have allowed employers to lawfully discriminate against proxies for these protected characteristics. This Note examines the use of race-based hairstyles, gendered-appearance standards, and citizenship as proxies for race, sex, and national origin, respectively, and how the availability of such proxies inhibits Title VII’s goal of creating equal employment opportunities. The Supreme Court’s dicta in Bostock v. Clayton County offer potential redress to some victims of proxy discrimination through a protected characteristic plus proxy framework, but its application is limited and authority still unclear. Legislative intervention is likely necessary to strike the proper balance between equalizing employment opportunities and preserving employer autonomy to make employment decisions. This Note proposes varying levels of statutory enumeration—broad enumeration, narrow enumeration, and no enumeration—for race, sex, and national origin, respectively, to balance the competing goals of creating equal employment opportunities on the basis of protected characteristics and maintaining employer autonomy.

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Chase Mays