Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union

U.S. judges, activists, and academics have theorized extensively about how the struggle for African Americans' civil rights shapes U.S. law prohibiting discrimination against other groups. Many worry that race jurisprudence has made U.S. discrimination law overly preoccupied with achieving formal equality and has blocked other important goals. Some feminists argue that analogies to race prevent discrimination law from reaching the "substance of most lived sex inequality," such as low pay in feminized professions and inadequate childcare provision. Advocates for the disabled are concerned that race analogies block group-based claims to radically redesign workplaces.

Gay rights activists argue that analogies to race limit the law's focus to immutable traits. As a result, gays and lesbians feel compelled to downplay their orientation, ethnic minorities have to mute their accents, and women must hide their status as mothers.