Employment Discrimination Rewritten

The purpose of this entry into the Feminist Judgments series is to create greater context for and extend the reach of the original volume (Feminist Judgments: Rewritten Opinions of the United States Supreme Court, 2016) by developing a volume of rewritten opinions in the substantive area of employment discrimination law.  Our vision is to rewrite opinions in the field of employment discrimination law that, when read together, are consistent with one another and create a new body of law. This body of rewritten cases will demonstrate to readers how the law of employment discrimination could have been significantly improved if feminist perspectives had informed the opinions when they were originally written.  In essence, the volume, when all of the opinions are considered together, will represent a stark contrast to a volume of the same employment discrimination cases as they actually were decided. Because employment discrimination law is almost uniquely dependent on a number of federal statutes, a unitary approach for the cases makes sense.  We hope to demonstrate that feminist perspectives could not only have changed individual opinions, but could also have changed the entire body of law.  This volume will represent a significant revision of much of the law of employment discrimination, as envisioned by feminist scholars and practitioners in the area.

Importantly, individual rewritten opinions will stand on their own as well, and can be used to teach or demonstrate how feminist perspectives would change the result as well as the reasoning and methods of the individual opinion. The commentaries will play the role of not only explaining how the rewritten opinion differs from the individual opinion, but also how the rewritten opinion would have changed the law and how the particular case relates to other rewritten decisions in the volume. Either the commentaries or brief editorial interventions, if necessary, also will explain how subsequent cases would have been changed or eliminated by the individual rewritten opinion.

The feminist approaches we envision for this volume will include an intersectional perspective. We have carefully chosen the cases to be rewritten, as well as the authors to write them, with an interest in making employment discrimination law more responsive to women and all people of color, people of diverse national origins and religions, and individuals with diverse sexual orientations and sexual identities.

In keeping with the tradition of the original Feminist Judgments volume, rewritten decisions for this book will be bound by the precedent and surrounding facts upon which the original decisions are based. The writers, however, will transform the opinions by bringing feminist perspectives to the facts and the law, and by using social science research and legal research that could have informed the authors of the opinions when they were originally decided.  This restriction means that later rewritten opinions in the volume will not cite to earlier rewritten opinions in the volume.  For this reason, we have been extremely careful to select the earliest opinion in a series of opinions to rewrite. By selecting the earliest opinion, the intervention occurs earlier and avoids the need for the rewriting of later opinions.  The commentaries to the individual rewritten opinions will explain how the rewritten opinion would have changed or obviated the need for subsequent opinions.

We have scheduled a workshop with authors and commentators to discuss how they plan to approach their opinions.  We expect this will be a collaborative process in which all will agree how the opinions should proceed. We also expect authors to use a variety of feminist methods and perspectives throughout the book, and we fully expect that the collaborative workshop will encourage a rich exchange of ideas that come from different feminist perspectives and intersectional analyses.

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