The Triumph and Transformation of Antidiscrimination Law

Abstract

Brown both crystallized and launched a revolution in the way our society understands what equality requires, a revolution that is ongoing. I want to discuss two basic aspects of this revolution. The first is that we have witnessed a triumph of the antidiscrimination model, by which I mean that more and more areas of social life are now viewed as raising a problem of "discrimination"—rather than viewed as raising some other kind of problem, or raising no problem at all. My second claim is that at the very time that the nondiscrimination idea has been emerging triumphant as a way of addressing matters as diverse as race, gender, age, religion, sexual orientation, and disability, the meaning of nondiscrimination has itself been transformed. Originally, nondiscrimination meant an obligation to treat people the same. But today, nondiscrimination is coming to mean accommodating differences. This transformation has occurred across the board, in all the subject matter areas where nondiscrimination ideas have now come to be applied—and when these changes are seen as a kind of unity, they are really quite striking, and are having a profound impact on American life.