Employment antidiscrimination law has been steadily eroding, the result of a dilemma it has never fully resolved: its relationship with identity.
I. From Ricci to Ames: Title VII’s Identity Problem
From Title VII’s inception, lawmakers, judges, and scholars have tried to resolve Title VII’s relationship with identity, oscillating between two competing normative visions of what discrimination is and what equality demands. On one side stands anti-classification theory, which regards any consideration of identity as inherently suspect and advocates formal neutrality. On the other stands anti-subordination theory, which treats identity as central, an index of power and a necessary lens for recognizing inequality.
While the Supreme Court once showed a tendency to acknowledge and apply both theories, in recent decades it has steadily gravitated towards one. In what has been dubbed the “anti-classification turn” in Title VII jurisprudence, the Court has embraced a formalist, colorblind understanding of equality, one that treats race, sex, and other protected characteristics not as proxies for structural disadvantage but as traits employers must ignore. From Ricci through Walmart and into Bostock, the Court has embraced an anti-classification paradigm that divorces equality from social context.
Ames v. Ohio Department of Youth Services, a recent Supreme Court decision on reverse discrimination, is the latest battleground between these approaches. At issue was whether plaintiffs who belong to majority groups must meet a heightened evidentiary burden—also known as the Background Circumstances Rule (BCR)—to establish an inference of discrimination. In a unanimous ruling this week, the Court held that the BCR lacks any textual foundation and imposes an inflexible evidentiary standard on majority plaintiffs. While this outcome is fully justified (as we later argue), the case nevertheless lays bare a deeper structural dilemma. It is the latest front in a broader jurisprudential shift, in which Title VII’s original commitment to anti-subordination is increasingly pushed out, leaving anti-classification to rule the dome alone. In this emerging landscape, the central question is no longer who holds power, but merely whether identity was considered. The result is a vision of equality that erases context, denies history, and treats all claims of discrimination as formally indistinguishable. This shift does not just destabilize individual doctrines like the BCR, it risks hollowing out a fundamental goal of antidiscrimination law itself.
Yet the clash over the BCR also reveals that a rigid attachment to identity as a conclusive proxy for power or hierarchy is no more satisfying. Treating identity categories as stand-ins for structural inequality can obscure the more complex ways in which power operates, both within and across groups, and can leave certain forms of discrimination unrecognized, simply because they don’t map neatly onto expected group boundaries.
Using the BCR debate as a case study, we argue that neither of the dominant approaches to antidiscrimination law offers a satisfying theory of how power and identity actually interact. What’s needed is a conceptual shift: one that takes identity seriously, but refuses to treat it as static, self-evident, or determinative of legal outcomes. We argue that anti-essentialism, a long-muted framework rooted in feminist, queer, and critical race theory, offers a way forward.
II. Reviving Anti-Essentialism: A Forgotten Thread in Title VII Jurisprudence
The clash between the two dominant normative frameworks of anti-classification and anti-subordination have up until now defined the normative landscape of antidiscrimination law. However, for all their differences, anti-classification and anti-subordination both tend to assume that identity categories are rigid and stable, and that power and hierarchy merely react to them.
Running parallel to these frameworks, a third strand has quietly informed how some scholars and courts have come to understand identity and power: anti-essentialism. Developed primarily within feminist, critical race, and queer legal theory, anti-essentialism has long functioned as a critique of both dominant camps, though rarely as a full-fledged doctrinal framework. Often overlooked, anti-essentialism has always been part of Title VII’s conceptual terrain, surfacing intermittently in case law, even as other frameworks claimed center stage. If anti-classification has now decisively prevailed in courts, this moment of instability may be precisely the time to bring anti-essentialism out of the margins, to offer an alternative.
As a theoretical lens, anti-essentialism challenges the way identity is typically conceptualized in law. It rejects the notion that race, sex, gender, or disability are fixed, internally coherent categories, and instead understands identity as contextually constructed and institutionally enforced. It is not simply that people “belong” to identity groups; rather, identities are assigned, policed, and performed within specific social, organizational, and jurisprudential structures. Discrimination, under this account, is not just differential treatment based on group status, but also a form of institutional discipline. It functions as a way of punishing individuals who fail or refuse to conform to normative scripts attached to identity categories, clashing with their freedom to carve their own path. The harm of discrimination, then, lies not only in exclusion but in coercion: in the law’s complicity with systems that tell people who they must be in order to be legible, employable, or protected.
This approach both converges and diverges from anti-classification and anti-subordination theories on critical elements. Like anti-classification, anti-essentialism is skeptical of fixed identity categories and wary of the ways in which identity-based legal solutions can reinforce social inequality. However, it diverges from anti-classification theory in that it does not treat identity as irrelevant. It recognizes that power operates through identity, but in ways that are unstable, contested, and context-dependent. Like anti-subordination, anti-essentialism recognizes hierarchy and social structure, but resists the use of fixed categories as stand-ins for power. It offers not a compromise between the two dominant paradigms, but a different grammar altogether.
What makes anti-essentialism especially potent in this legal moment is its resonance with the vocabulary that now animates the Supreme Court’s civil rights jurisprudence. While rooted in radical critique, this theory’s emphasis on liberty, autonomy, and resistance to institutional overreach opens unexpected points of connection with conservative legal thought. By casting discrimination as a constraint on personal freedom, it articulates a vision of equality that can speak across ideological divides. In this sense, anti-essentialism is not simply a critique; it also offers a strategic reframing that can translate civil rights commitments into a register more attuned to current judicial sensibilities.
Importantly, this framework is not speculative. It already appears, if unevenly, in Title VII jurisprudence. One recent example is Bostock v. Clayton County. While seen as an anti-classificationist decision, Bostock also embodies fundamental anti-essentialist moves. The ruling defines discrimination as occurring when employers penalize individuals because they perceive their behavior, self-expression, or attractions as inconsistent with what is expected of their assigned sex. As the Court noted, “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” The shift from who the plaintiff is to how identity-based expectations shape employment decisions echoes anti-essentialism’s core claim that discrimination functions by policing norms of identity, not simply by classifying traits. Further, this analytical focus contains seeds for protecting a wide range of non-conforming gender performances in the workplace. By focusing on the comparative logic of discrimination rather than creating new fixed categories of protected identities, the opinion potentially extends Title VII protection to any employee whose gender expression challenges essentialist assumptions about “traits or actions” associated with the sex one was identified “at birth.”
Reviving anti-essentialism within Title VII means reclaiming a vision of equality that is neither blind to identity nor bound by it. As traditional equality frameworks falter under conservative judicial scrutiny, anti-essentialism can offer a richer understanding of the relationship between identity and power, as well as a strategic path forward.
III. The Background Circumstances Rule: A Case Study in Essentialist Limitations
To understand both the potential of anti-essentialism in antidiscrimination law and the limitations of the prevailing, essentialist framing of the anti-classification/anti-subordination debate, the recently decided clash over the BCR offers a paradigmatic example. While the outcome of the case may initially appear to reinforce a conservative vision, another example of the broader anti-DEI backlash, anti-essentialism allows us to approach it with more nuance, highlighting the limits of identity-based reasoning.
Some background. Under the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, a plaintiff may prove discrimination without direct evidence by first establishing an inference of discriminatory intent, at which point the burden shifts to the employer to offer a legitimate, non-discriminatory reason for the adverse decision. To make out an inference of discrimination, plaintiffs must demonstrate, alongside other elements, that they belong to a protected group, i.e., a minority. But how should this requirement function when the plaintiff is white, male, heterosexual, or otherwise seen as “majority”? Prior to Ames, some circuits answered this question by allowing majority plaintiffs to demonstrate, alternatively, “background circumstances” indicating that their employer is the rare exception, one that discriminates against the majority.
By requiring additional evidence from majority plaintiffs, the BCR serves as one of the few surviving attempts to uphold Title VII’s anti-subordination vision, the belief that to understand power, we must look at plaintiffs’ identity.
Through the lens of anti-essentialism, however, the BCR is revealed as a case study in how even progressive legal tools can reinforce the very hierarchies they aim to dismantle. While attempting to preserve anti-subordination commitments, it relies on essentialist assumptions about identity, power, and discrimination.
Notably, the rule has divided courts and scholars along mostly-predictable ideological lines. Some defend the rule as a necessary safeguard against reverse discrimination claims, while others see it as discriminatory against majority plaintiffs, or ungrounded in statutory language. Anti-essentialism disrupts this familiar political alignment. Paradoxically, anti-essentialism’s progressive critique of fixed identity categories yields powerful arguments against the rule’s underlying assumptions. Notably, echoes of this anti-essentialist critique can be found in Ames itself.
This critique, which we develop further in a forthcoming article in the SMU Law Review, unfolds on three fronts: the rule’s simplistic majority-minority framework; its narrow assumptions about how discrimination works; and its failure to recognize the ways in which majority plaintiffs can also serve as agents of structural critique.
The first flawed assumption of the BCR is that plaintiffs can be neatly sorted into “majority” and “minority” groups, each with its own evidentiary thresholds, which are designed to reliably track social power. But this framework quickly breaks down in practice. Justice Thomas addresses this issue in his concurring opinion in Ames, noting that in certain contexts, minorities may actually constitute the majority. Yet, this is just one example among many that underscore the limitations of a rigid minority/majority framework. One additional example is intragroup discrimination, where discrimination occurs within the same identity group. To understand how power operated in those instances, courts would need a better proxy than the identities of the parties. Another challenge arises when plaintiffs belong to marginalized identities that lack formal legal recognition. A non-binary person assigned male at birth, for instance, might be legally classified as a man despite facing discrimination for gender nonconformity. Or take someone who is white with a Hispanic name or appearance: As Professor Jessica Clarke has observed, they may experience discrimination based on perceived identity, even though they do not belong to a protected class. Even with formally-recognized identities, it is sometimes unclear who holds privilege in a given context. In debates over access to women-only spaces like bathrooms or prisons, for example, cisgender women are sometimes framed as more vulnerable than transgender women — despite strong evidence to the contrary. Finally, acknowledging the intersectional nature of identity only deepens the instability of the majority/minority binary. In a conflict between a white lesbian woman and a heterosexual Black man, who counts as “the minority”? The question resists any simple answer. The murky nature of majority-minority relations reveals the fundamental limitations of the BCR.
Second, the rule reflects flawed epistemic assumptions regarding the way societal hierarchies translate into discriminatory employment decisions, requiring additional evidence when discrimination doesn’t follow traditional scripts of social subordination. Indeed, power does not always flow cleanly from top to bottom. For instance, examining intragroup dynamics between racial minorities highlights how in some instances, dark-skinned employers tend to discriminate against light-skinned ones. In Bryant v. Begin Manage Program, the plaintiff, a Black woman, claimed she was terminated for not appearing “Afrocentric” enough to her employer, echoing what Professor Kenji Yoshino has dubbed “reverse covering.” The dynamics in Bryant illustrate how systems of racial subordination can produce unexpected and at times paradoxical forms of workplace discrimination. Cases like Bryant, while seemingly counterintuitive, are themselves a product of, and reaction to, pervasive systems of racial hierarchy and white supremacy. This understanding suggests that reverse discrimination should not be seen as a deviation from structural racism, but as one of its more complex expressions. Such recognition requires us to reexamine our epistemological assumptions regarding what is and is not plausible under conditions of social subordination.
Finally, mounting procedural obstacles in front of majority plaintiffs can prevent transformative claims from moving forward. While majority plaintiffs are often viewed with suspicion, as if their claims threaten to hijack Title VII’s remedial mission, this perspective overlooks their potential to expand workplace protections to all workers. One clear example is Justice Ruth Bader Ginsburg’s famous litigation strategy while at the ACLU, to center male plaintiffs as a way to challenge sex-role stereotyping. This approach provided more than a strategic advantage, centering plaintiffs with whom male Justices could more easily identify; it also advanced a more progressive and ultimately transformative vision for workplace equality. Precisely because they occupied an unlikely position as targets of discrimination, male plaintiffs were often better positioned to expose how gender inequality is sustained not only through exclusion, but through the imposition of rigid and prescriptive gender roles.
The reason lies in a basic insight about how stereotypes operate: They define social groups in opposition to one another, working as mirror images. Masculinity is often understood as the opposite of femininity; likewise, the traditional image of Black people, as Professor Kimberlé Crenshaw once wrote, “correlates with a counterimage of whites.” As a result, when employers act on stereotypical assumptions to discriminate against majority-group candidates, they often reinforce the very narratives that constrain minority workers. This reciprocal structure underscores why even reverse discrimination cases can illuminate systemic harms. Declining to hire a man for a caregiving role based on the belief that men lack empathy doesn’t just disadvantage him, it also reaffirms the notion that caregiving is inherently women’s work. Likewise, rejecting a white applicant due to presumed difficulty to connect with Black clients perpetuates the same essentialist logic that undergirds racial segregation, validating stereotypes about the intrinsic differences between racial groups.
By focusing on group membership, the BCR does more than misclassify plaintiffs; it misunderstands discrimination itself. The critique of the BCR underscores a broader insight: Identity-based frameworks, even when well-intentioned, often falter under the weight of their own assumptions. Using identity as a proxy for power is generally intended to illuminate structural inequality, but it can just as easily obscure it, undermining the very goals of equity we aim to promote.
Anti-essentialism, we believe, can offer Title VII a better normative grounding, one that not only avoids these pitfalls, but also allows the statute to survive, and even evolve, in a changing doctrinal and political landscape.
IV. Anti-Essentialism as a Future for Civil Rights Law
What would Title VII look like if we took anti-essentialism not only as a tool of critique, but as a guiding normative vision? An anti-essentialist theory would reorient Title VII’s purpose toward preventing employment decisions grounded in reductionist, essentializing assumptions about both work and workers. Under this theory, the discriminatory harm lies not only in the unequal outcomes such assumptions may produce, but also in the denial of individual dignity and autonomy.
Accordingly, anti-essentialism would seek to examine the complex, nuanced, and dynamic nature of discrimination without resorting to identity as an analytical shortcut. Notably, both anti-classification and anti-subordination tend to fast track the inquiry into whether discrimination had occurred. Anti-classification stops the analysis once identity categories are invoked. Anti-subordination ends the inquiry when harm to a historically-marginalized group is detected. Both approaches risk abandoning the ultimate question Title VII poses: Did the decision, in its substance and effect, deny individuals equal access to employment opportunities? Anti-essentialism demands that we stay with this harder question, refusing any identitarian shortcuts.
An anti-essentialist examination could ask questions like: What considerations informed the employment decision, and did they rely on stereotypes, assumptions, or implicit expectations about how a “good” employee should look, act, or speak? Were these considerations meaningfully connected to job performance or organizational needs? Ultimately, the inquiry would shift from asking who fits protected categories to asking how power operates through expectations that restrict individual opportunities.
Imagine a white woman applying for a job at a firm that is predominantly white. She is from a rural background, speaks with a Southern accent, and lists on her résumé volunteer work at her local church. Despite meeting all formal qualifications and performing well in the interview, she is not hired. Instead, the job goes to another, less qualified, white woman from a Boston suburb. The hiring committee’s notes cite concerns about her “professionalism” and whether she would “resonate with clients” given her “provincial” background and her accent. An anti-classification framework sees no claim here: Both applicants are white women. An anti-subordination approach likely finds no fault either, since no marginalized identity group appears harmed. But anti-essentialism asks a different set of questions: What implicit norms about how whiteness should look, sound, or be performed are shaping this decision? Circumstantial evidence (such as the choice to hire a less qualified candidate), internal notes referring to the plaintiff’s background as “provincial,” concerns about her “professionalism,” and references to her accent could collectively establish an inference of discrimination based on essentialist racial expectations.
This approach can also offer critical insights in cases of disparate impact. While anti-classification theory struggles with facially neutral policies that disproportionately harm certain groups, and anti-subordination theory tends to assume that any disparate burden on historically marginalized groups necessarily signals illegality, anti-essentialism insists on a deeper inquiry. It recognizes that facially neutral practices can replicate and reinforce inequality, but it does not treat disparate statistical outcomes alone as conclusive. Instead, it asks: Did the policy, in its design or operation, distort access to workplace opportunities in ways that are arbitrary, unjustified, or tied to essentialist assumptions regarding certain groups?
Anti-essentialism’s refusal to bind discrimination analysis to rigid identity categories further protects plaintiffs from a second-order harm: the coercion of legibility. When courts demand that individuals fit neatly within recognizable identity scripts to qualify for protection, they force plaintiffs to present themselves — and often to reshape themselves — in ways that align with dominant social expectations. Anti-essentialism resists this dynamic. By focusing on the nature and impact of the employment decision itself, rather than on the plaintiff’s conformity with predefined categories, it allows individuals to seek redress without first having to render themselves intelligible according to the law’s existing identity templates.
An anti-essentialist Title VII thus offers judges a disciplined way of staying with the harder question, insisting that their analysis proceed all the way to the apparatuses that either enable or impede workplace equality.
Conclusion
As Title VII enters its next chapter, the question is not whether antidiscrimination law will change, but how. In a legal culture increasingly hostile to identity politics and suspicious of group-based remedies, anti-essentialism may offer not only a more accurate account of discrimination, but a more durable language through which to contest it. The task, now, is to pull this framework from the margins and make it central — not as theory layered on top of doctrine, but as a reading of Title VII that has always been possible and may now be necessary.