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Title: “Defining Protected Traits”


Abstract: Both statutory and constitutional law prohibiting discrimination forbid actions taken on the basis of certain traits.  But rarely are those traits specifically defined. As a result, courts fill in or flesh out the contours of these definitions, and do so with consequential results.  Defining a trait broadly often yields an instance of disparate treatment on the basis of the protected trait, while defining it narrowly yields merely disparate impact on the same basis.  As disparate treatment calls for a significantly heavier burden of justification than does disparate impact, the key move putting laws, policies and the acts of individuals into one category or the other happens in this definitional step. Yet the significance of this task has been overlooked. 


This Article highlights the importance of defining protected traits and, at the same time, the difficulties involved in doing so.  It proceeds by presenting three puzzles, each of which elucidates a particular problem that arises in defining protected traits.  In working though these puzzles, the Article clears away some important misconceptions and draws out the questions that remain.  Ultimately, the Article concludes that answering these questions and thereby settling the definitions of the traits on the basis of which discrimination is prohibited requires that courts answer the foundational question: what is discrimination law for?


Speaker Bio: This event's speaker is Deborah Hellman, the David Lurton Massee, Jr. Professor of Law and F. Palmer Weber Research Professor of Civil Liberties and Human Rights at the University of Virginia School of Law. 

There are two main strands to Hellman’s work. The first focus is on equal protection law and its philosophical justification. She is the author of When Is Discrimination Wrong? (Harvard University Press, 2008) and co-editor of The Philosophical Foundations of Discrimination Law (Oxford University Press, 2013) and several articles related to equal protection. The second strand focuses on the relationship between money and legal rights. This includes articles on campaign finance law, bribery and corruption, each of which explore and challenge the normative foundations of current doctrine. Her article "A Theory of Bribery" won the 2019 Fred Berger Memorial Prize (for philosophy of law) from the American Philosophical Association. In 2020 she won the Association of American Law Schools Section on Jurisprudence Article Award for “Measuring Algorithmic Fairness,” which was published in the Virginia Law Review. 

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  • Xi Cao

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