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The composition and identity characteristics of the American workforce are changing. The population in this country is rising, aging, and becoming much more racially and ethnically diverse. Appearance norms are shifting too. These changes have enormous implications for constitutional and employment discrimination law. In both equal protection and employment discrimination cases, recovery usually depends on membership in a constitutionally or statutorily protected category. Yet the statutory approach to anti-discrimination law has stagnated. Part of the difficulty of the protected class approach is that it is based on something of a paradox — the paradox of exceptionalism. Class-based protection requires individuals to prove immutable or deeply embedded differences to obtain protection from being treated differently. The categorical approach also means that some types and lived experiences of discrimination are simply omitted from federal and state protection. The article discusses cramped doctrinal interpretations, narrow intersectional analysis, and the problematic of intra-group distinctions — all of which inhibit the reach of Title VII and state laws. The proposal to reinvigorate the anti-discrimination frontiers envisions constructing a judicial and regulatory patchwork of protections. The article recommends expanding doctrinal coverage for new types of discrimination, as well as building on the efforts of various states and municipalities, which have begun to provide somewhat more robust anti-discrimination protection than is afforded under federal law. Finally, the article suggests that one of the more promising avenues for addressing the types of discrimination that will face the workforce of the future is to endeavor to change cultural understandings about identity characteristics through media efforts.

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Lewis & Clark Law Review