I make three observations on Yuracko's thesis to explain these ideas. First, in Part II, I argue that it is possible to explain the case law distinctions between various categories of BFOQ claims within the liberal model of antidiscrimination. Specifically, I turn to a more robust analysis of the antisubordination paradigm than Yuracko describes in her paper. I argue that we should consider the dangers of under-inclusion in one sector as the result of structural inequalities across the workforce. Because of the need to take a more macro approach in addressing the effects of discrimination on the market at large, I also argue that as a matter of policy, the courts are often not best situated institutionally to promote labor market gender equality. In particular, discrimination that stems from disparate impact, which requires a macro understanding of the current market, past wrongs, and the ongoing effects of social group hierarchies, would benefit from a more active administrative agency rather than a court-focused process. While Yuracko and many other commentators equate antidiscrimination regulation with adjudication, I argue that it is desirable to allow the Equal Employment Opportunity Commission (EEOC) a greater role than it currently plays in the administration of antidiscrimination law.
Reflections on Equality, Adjudication, and the Regulation of Sexuality at Work: A Response to Kim Yuracko,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol43/iss4/8