It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's failures to the transgender community as exhibited by case precedents. Then, this Article refutes the categorical approach and proposes a de-categorized reformulation of Title VII, a concept that, to the Author's knowledge, has never before been proposed. This new category-less approach would replace relevant parts of Title VII's text with language focusing on an individual's objective qualifications for employment. Under this new proposal, the determination of whether that individual is the "most qualified" for the job is the key question, and employment decisions based on factors other than job qualifications are strictly prohibited. The culmination is the "Employment Qualifications Approach" ("EQA"). Penultimately, this Article addresses the possible benefits and drawbacks that might attend implementation of the EQA. Finally, this Article asserts that the EQA is the best hope and means by which to afford currently unprotected employees, including transgender persons, equal employment opportunities and non-discrimination protections through the law.
Removing Categorical Constraints on Equal Employment Opportunities and Anti-Discrimination Protections,
Mich. J. Gender & L.
Available at: https://repository.law.umich.edu/mjgl/vol18/iss1/2