Reciprocal Antidiscrimination Arguments

Abstract

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ feasibility, by mapping both their potential and their limitations. It concludes that RADARs can be useful analytical tools for legislators and policymakers when assessing the overall impact of specific antidiscrimination measures. RADARs are also helpful for cause lawyers in considering the long term impacts of antidiscrimination litigation. In contrast, courts should be cautious in accepting RADARs made by defendants in antidiscrimination cases due to the inherent institutional and procedural limitations of adjudication.