Category Archives: Discrimination

‘Our Joy: An Inclusive Right of Enjoyment in Property and Contract Law’

Nancy Leong, ‘Enjoyed by White Citizens’, 108 Georgetown Law Journal (forthcoming, 2021), available at SSRN. I recall being confused by how the average 1L Property course treated the ‘important’ property provisions. I was struck that we spent all of our time on the 5th Amendment clause that required compensation by the government for the ‘taking’ […]

Ben Green, ‘Impossibility of What? Formal and Substantive Equality in Algorithmic Fairness’

ABSTRACT In the face of compounding crises of social and economic inequality, many have turned to algorithmic decision-making to achieve greater fairness in society. As these efforts intensify, reasoning within the burgeoning field of ‘algorithmic fairness’ increasingly shapes how fairness manifests in practice. This paper interrogates whether algorithmic fairness provides the appropriate conceptual and practical […]

Meital Pinto, ‘Arbitrariness as Discrimination’

EXTRACT The law uses ‘discrimination’ to denote practices of exclusion and distinction that are wrongful from a legal point of view. Anti-discrimination doctrines around the world use the concept of ‘wrongful distinctions’ to enumerate the ways in which irrelevant distinctions between individuals or groups are made and to explain their illegality. But how should the […]

Tamar Kricheli‐Katz, ‘Gender Inequalities in Markets’

ABSTRACT Various forms of inequality, such as the gender, race, and class systems of inequality, operate and intersect in societies and markets. In this review, I discuss specifically the gender system of inequality. I focus on market interactions, conceptualizing them as the building blocks for gender inequalities in markets. My objective is to give an […]

Natalie Sheard, ‘Employment Discrimination by Algorithm: Can Anyone be Held Accountable?’

ABSTRACT The use by employers of algorithmic systems to automate or assist with recruitment decisions (Algorithmic Hiring Systems (‘AHSs’)) is on the rise internationally and in Australia. High levels of unemployment and reduced job vacancies provide conditions for these systems to proliferate, particularly in retail and other low wage positions. While promising to remove subjectivity […]

Villaronga, Poulsen, Søraa and Custers, ‘Gendering algorithms in social media’

ABSTRACT Social media platforms employ inferential analytics methods to guess user preferences and may include sensitive attributes such as race, gender, sexual orientation, and political opinions. These methods are often opaque, but they can have significant effects such as predicting behaviors for marketing purposes, influencing behavior for profit, serving attention economics, and reinforcing existing biases […]

Deborah Widiss, ‘Proving Discrimination by the Text’

ABSTRACT Employment discrimination laws make the ‘simple but momentous’ declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, […]

‘The Supreme Court’s Job Is Not to Provide Clarity’

Joanna Grossman and Gillian Thomas, ‘Making Sure Pregnancy Works: Accommodation Claims After Young v United Parcel Service, Inc’, 14 Harvard Law and Policy Review 319 (2020). Professors Grossman and Thomas have written a wonderful article that describes how courts have applied Young v United Parcel Service, 575 US 206 (2015), in which the Court considered […]

Leslie Francis, ‘On (not) deserving disadvantage’

ABSTRACT The Americans with Disabilities Act (ADA) is a civil rights statute, giving rights to everyone, but is structured to require people claiming its protections to have a characteristic, ‘disability’. This structure presents an apparent paradox: how can a statute accord both civil rights to all and special rights to some? This contribution argues that […]

‘Filling the Gaps in IIED’

Alex B Long, ‘Using the IIED Tort to Address Discrimination and Retaliation in the Workplace’, (March 31, 2021) University of Illinois Law Review (forthcoming), available on SSRN. The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the […]