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120 Yale L. J. 728 (2010-2011)
Discrimination by Comparison

handle is hein.journals/ylr120 and id is 732 raw text is: SUZANNE B. GOLDBERG Discrimination by Comparison ABSTRACT. Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators - those who are like a discrimination claimant but for the protected characteristic - as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By treating comparators as an essential element of discrimination, instead of as a heuristic device to help discern whether discrimination has occurred, courts have largely foreclosed these other theories from consideration. At the same time, courts have further shrunk the very idea of discrimination by disregarding a central lesson from harassment and stereotyping jurisprudence: discrimination can occur without a comparator present. The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina permits courts to evaluate discrimination claims without appearing to engage in a subjective analysis of workplace dynamics. Given the complex nature of both identity and discrimination, however, the comparisons produce a false certainty at best. By contrast, alternate methodologies, including the contextual consideration favored in harassment and stereotyping jurisprudence as well as the hypothetical comparator embraced in European law, offer a meaningful framework for matching discrimination law and norms to workplace facts, while preserving judicial legitimacy. With comparators dislodged from their methodological pedestal, we may yet recover space for the renewed development of discrimination jurisprudence and theory. AUTHOR. Clinical Professor of Law, Columbia Law School. Many thanks to Henry Monaghan, Susan Sturm, and Elizabeth Emens for extended conversations, as well as to Carlos Ball, George Bermann, Mary Anne Case, Robert Ferguson, Katherine Franke, Julie Goldscheid, Kent Greenawalt, Scott Hemphill, John Leubsdorf, Lance Liebman, Martha Minow, Joseph Raz, Elizabeth Scott, Robert Scott, Charles Sullivan, and Kendall Thomas, as well as participants in faculty workshops at Columbia, the City University of New York, Hofstra, and Vanderbilt Law Schools, and the Washington College of Law at American University. Thanks also to J. Taylor Kirklin, Amy McCamphill, David Pennington, and Mai Ratakonda for excellent research assistance. 728

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