Duke Journal of Constitutional Law & Public Policy
The Supreme Court has said that the Equal Protection Clause of the Constitution and Title VII’s prohibition of discrimination require that all persons be treated as individuals and that the laws operate primarily to protect “persons, not groups.” This article shows that the legal requirement of individual treatment has two distinct components: a rule invalidating inferences about persons based on their membership in protected groups and a rule prohibiting disparate treatment for the sake of group interests or intergroup equality. The first rule is rooted in moral principles of respect for individual autonomy. The second rule is a principle that gives lexical priority to individual rights over group welfare. Both are formal, anti-classification rules that abjure reliance on group concerns, and both are central to antidiscrimination law. Neither rule, however, mandates group-blindness or entails the categorical irrelevance of group classifications. Antidiscrimination law cannot be completely understood without reference to goals of substantive intergroup equality. The rules of individual treatment and the protection of “persons, not groups” represent formal constraints on the means by which substantive equality can be sought. They should not be mistaken as substitutes for it.
12 DUKE J. CONST. LAW & PUB. POL'Y 107 (2016)