This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructions, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice that is implicitly encompassed by a ban on discrimination pushes discrimination law in promising directions. Recognizing retaliation as a form of discrimination challenges the dominant anti-differentiation model of discrimination and promotes a broader conception of discrimination as the preservation of race and gender privilege. In addition, recognizing protection from retaliation as implicit in legal proscriptions on discrimination furthers the democratic underpinnings of discrimination law by adding content to the ideal of equal citizenship. Finally, the Article contends that an existing doctrinal constraint on the retaliation claim, the reasonable belief requirement, undermines the potentially progressive role that the retaliation claim can play in realizing its promise for discrimination law. The Article urges a reconsideration of this doctrine to bring the retaliation claim closer to the theory advanced here.
Volume 90 - No. 1
- Note: Stranger than Science Fiction: The Rise of A.I. Interrogation in the Dawn of Autonomous Robots and the Need for an Additional Protocol to the U.N. Convention Against Torture
- SIRI-OUSLY 2.0: What Artificial Intelligence Reveals About the First Amendment
- The Consequences of Disparate Policing: Evaluating Stop and Frisk as a Modality of Urban Policing
- Regulating Cumulative Risk
- Toward a Critical Race Theory of Evidence
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