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Abstract

"Invidious," through its Latin root invidia, for envy, hints at the dangers of arbitrary discrimination. Statutes, for instance, that distribute social or economic benefits and allocate burdens in a patently arbitrary manner alienate the burdened class. Such laws tear at the social fabric by instilling resentment and bitterness in the disfavored group. At an extreme they encourage rebellion. The famous Carolene Products footnote, in which Justice Stone suggested that the Court would apply a heightened standard of judicial review to statutes affecting "discrete and insular minorities," draws an implicit connection between invidiousness and fundamental unfairness. Invidiousness thus refers to the patent unfairness and immorality of the decisionmaker's choice and to the victimization that discrimination involves, including the socially destructive impulses that subjection to arbitrary decisionmaking engenders. As antidiscrimination law has evolved, however, courts construing antidiscrimination statutes, such as the Maine Human Rights Act (MHRA), have held that invidious motivation is no longer necessary for a finding of unlawful discrimination. These courts have taken cognizance of the fact that barriers that are not erected purposefully to exclude persons belonging to a protected classification, but which nevertheless operate to exclude them, can discriminate just as effectively as policies of intentional exclusion. Defendants who come under antidiscrimination statutes may be held liable for the discriminatory effects of their conduct unless they can justify the practice that has produced the discriminatory effect either on the grounds of business necessity or job relatedness or on the basis that the alternatives would cause undue hardship to the defendant's enterprise. Thus, whereas prior to the development of non-invidious discrimination doctrine a defendant needed only to satisfy a court that he harbored, or at least acted upon, no stereotyped ideas connoting the social inferiority of a particular group or protected classification in order to acquit himself of a charge of discrimination, the duty imposed by non-invidious discrimination doctrine includes an affirmative obligation to foresee, and to act to alleviate or avoid, the exclusionary consequences of one's activity. Non-invidious discrimination doctrine thus embodies more stringent moral principles than those expressed in invidious discrimination doctrine. Rather than limiting itself to purging the process of the more egregious, stereotype-based discrimination, antidiscrimination law now focuses on the more subtle but equally pernicious factors of apathy and indifference to the "basic human right to a life with dignity."

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