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Orentlicher on Dismissiveness & Anti-Discrimination Law

By Lawrence Solum

David Orentlicher (Indiana University School of Law-Indianapolis) has posted Discrimination Out of Dismissiveness: The Example of Infertility (Indiana Law Journal, Vol. 85, 2009) on SSRN. Here is the abstract:

In recent years, anti-discrimination theory and doctrine have rested heavily on the anti-caste principle first enunciated in Strauder v. West Virginia. According to this principle, equal protection law and anti-discrimination statutes should eradicate public - and private - policies that subject some persons to ongoing stigma and subordination and therefore to second-class status in society.

This article argues that while a focus on stigma and subordination is important, it misses a key source of discrimination-the discrimination that arises from dismissiveness. Anti-discrimination law has recognized the need to overcome the discrimination that results from invidious bias, unfair stereotyping, irrational fear, accumulated myths, or simple neglect. All of these forms of discrimination reflect situations in which society disfavors people because of traits or conditions that are unpopular. Yet it is important to recognize as well that discrimination can - and does - occur when majorities dismiss the impact that a person's differences can have and disfavor people because of traits or conditions that are not unpopular. Indeed, the trait or condition may even be viewed as desirable by others, even though it is viewed as undesirable by many of those who have the trait or condition.

This article illustrates discrimination from dismissiveness with the example of infertility. Infertile men and women suffer from one or another physical abnormality of their reproductive capacity, and they experience high levels of psychological distress. By standard measures, infertility is a disability.

Yet despite the level of suffering and the presence of a real bodily dysfunction, many policymakers and scholars do not treat infertility as a disability. Although infertile persons may be deprived of the opportunity to procreate, such a deprivation, it is argued, is the loss of a lifestyle option. Infertile persons still can carry on their lives at work or at play at normal levels, with no reduction in functioning.

This article traces the evolution in views about fertility and reproduction in Western society and demonstrates how changes in perspective about the value of reproduction can turn infertility from an obvious disability into a condition that may be viewed by many as non-disabling. To protect the interests of persons with infertility and anyone else who might be subject to discrimination on the basis of dismissiveness, it is critical to ensure that public policy recognizes the possibility of discrimination from dismissiveness as it shapes anti-discrimination theory and doctrine.

Full post as published by Legal Theory Blog on March 16, 2009 (boomark / email).