Controversy, Consensus and the Concept of DiscriminationChair Lecture by George Rutherglen, John Barbee Minor Distinguished Professor of Law
Thank you, John, for that gracious introduction. I have often wondered at the generous support that I have received here at the University of Virginia: at the encouragement and assistance of my colleagues on the faculty; from the attention and effort of the students in my classes; and from the generosity of our alumni who have made possible chairs like the one I now hold. I have often thought, What did I do to deserve so much from so many people here at the Law School? My thanks to all of you for all your help over the years.
But more immediately, I have wondered, what did I do to have this chair lecture scheduled for April Fool’s Day? In the spirit of this propitious day, perhaps I should not inquire further into this question. As we are told, “Where ignorance is bliss, it’s folly to be wise.” Or perhaps more in keeping with the seniority of those of us who give these chair lectures, I should repeat this observation by the Renaissance scholar and humanist Erasmus in his book, “In Praise of Folly”: “Folly is the one thing which can halt fleeting youth and ward off the relentless advance of old age.” As Ken Abraham said in his chair lecture last year, we may be aging professors, but we aspire to be youthful scholars.
In this vein—suitable, I hope, for this day and occasion—let me state my thesis in the simplest possible terms. In civil rights law, we have an overlapping consensus about what constitutes discrimination. In the words used in the statute I will be principally concerned with, Title VII of the Civil Rights Act of 1964, discrimination constitutes a practice motivated by some suspect factor, such as race or sex. This definition embodies our consensus about discrimination. If a decision is based on race, it constitutes discrimination, and unless otherwise specifically permitted, it is prohibited by law. We have no such consensus, however, about equality, which can embrace a bewildering variety of different conceptions and proceed along many dimensions other than race, national origin, sex, age, disability, or, indeed, any personal characteristics. The other dimensions of equality involve wealth, income, and resources generally; social status, offices, and opportunities; talents, capabilities, and functions; political power and influence; happiness and satisfaction of personal preferences—all of these, and others as well, have formed the basis for general theories of social justice. And this list is very partial and incomplete. Discrimination is a narrower concept than equality and for that reason has proved to be less open to dispute.
My thesis is that, where the concept of discrimination runs out, the inherently contested concept of equality takes over, leading to disputes in areas as varied as affirmative action, liability for neutral practices with discriminatory effects, the extent of prohibitions against sexual harassment, and the duty of reasonable accommodation. This is true in employment discrimination law, the field that I am best acquainted with, and I suspect it is true throughout civil rights law. All the major controversies occur where prohibitions against discrimination no longer provide a reliable and accepted guide about how to achieve equality. Disputes about equality then feed back into disputes over what constitutes prohibited discrimination, narrowing the prohibition in some respects and extending it in others, but giving rise to controversy precisely because of these distortions of the concept of discrimination itself.
Let me illustrate this point by more fully considering the provision from Title VII, that I mentioned a moment ago. Title VII is the major federal statute prohibiting discrimination in employment. It was enacted as part of the Civil Rights Act of 1964, and like all recent civil rights legislation, it includes a variety of complex prohibitions. But prohibited discrimination is defined in only one subsection of the statute, which provides that a plaintiff proves a violation of the statute by establishing “that race, color, religion, sex, or national origin was a motivating factor for any employment practice even though other factors also motivated the practice.” This is, I submit, our ordinary concept of discrimination. It is what our nation came to agree upon, when we eventually agreed that segregation had to be abandoned, that the strange career of Jim Crow had to come to an end. This consensus, of course, was not always so. It formed in the decades leading up to Brown v. Board of Education, whose 50th anniversary we celebrate this year. And it was confirmed and consolidated by the Civil Rights Act of 1964, whose 40th anniversary we also celebrate. Remarkably, the provision which I have just quoted to you, was added to the statute many years later, by the Civil Rights Act of 1991.
The immediate occasion for the passage of this provision was the development of disputes over mixed motive cases, those in which discriminatory reasons and legitimate reasons combined to result a disputed employment decision—in the employer’s refusal to hire or to promote the plaintiff or to discharge the plaintiff based both on good reasons and bad reasons. This is a complex issue that is also addressed in a variety of other provisions in the statute, but it implicates other and more profound controversies over Title VII. This definitional provision was thought by some to outlaw affirmative action in employment, but other provisions enacted with this one in the Civil Rights Act of 1991, preserved, and in some respects, encouraged affirmative action. In a telling qualification, the statutory definition of prohibited discrimination itself recognized these limits on its scope. It applies “except as otherwise provided” elsewhere in Title VII.
This qualification reveals as much about the power of the concept of discrimination as about its limits. It establishes the default condition for proving a violation of the statute: by proving that race, color, religion, sex, or national origin was a motivating factor in a disputed decision. It defines discrimination as colorblindness—or blindness to the other factors prohibited by Title VII. This definition, and the concept of discrimination that it embodies, is what we agreed on when we agreed to reject segregation; it represents the overlapping consensus on civil rights. In this respect, it offers an illuminating contrast with the overlapping consensus of the philosopher, John Rawls, from whom I have borrowed the term.
For Rawls, the overlapping consensus is a condition that assures the stability of principles of justice in a well-ordered society. It assures that these principles, derived by arguments that appeal to rational individuals in a hypothetical situation, would prove to be minimally acceptable to people with diverse moral and religious beliefs in the realistic conditions of a modern democratic society. The overlapping consensus, on his view, is not a compromise that somehow represents the weighted average of otherwise inconsistent beliefs. It represents a commitment that adherents of those beliefs, to the extent they are reasonable, would have to principles of justice. Rawls derives these principles by entirely different means, dependent upon elaborate arguments made within what he calls “the original position.” The overlapping consensus only assures that, if the principles of justice derived in the original position were actually adopted in any modern society, reasonable people with fundamentally different moral and religious views would find them acceptable as a basis for social cooperation. The overlapping consensus neither provides the arguments for his principles of justice nor guarantees that those principles would be adopted. It only explains how, once adopted, they would form the basis for a stable political order.
To pursue the subtleties of Rawls’s theory of justice would take me far from employment discrimination and civil rights law. But that is, in a way, my point. No theory of justice explains the law as we have it. No comprehensive theory of equality uniquely determines the legal prohibitions against discrimination. Instead, altogether too many theories of what equality truly requires can be invoked to support the minimal concept of discrimination as colorblindness. And altogether too many disputes among those theories reflect disagreements about how that concept should be extended, modified, or limited. I offer the overlapping consensus, as Rawls uses the term, only as an analogy. For Rawls, it provides a means of describing the problematic relationship between comprehensive moral and religious views and the more limited concept of political liberalism that he endorses. It insulates his theory of justice from more fundamental disputes between adherents of different religions and secular philosophies of life. It describes the relationship between comprehensive moral and religious views and the more limited concept of political liberalism that Rawls endorses.
I would like to invoke “the overlapping consensus,” however, in a different sense, at a lower level of abstraction and generality: to describe the relationship between theories of justice and equality and actual legal rules. As I have said, my claim is that disputes break out in employment discrimination law at exactly the point at which the concept of discrimination gives way to arguments over equality; where arguments about the best means of preventing improperly motivated actions, whether by government or by employers, gives way to arguments about the kinds of equality the law is seeking to achieve, in terms of equal opportunity throughout society. We see this most dramatically in the law of affirmative action, but it permeates every aspect of employment discrimination law. In the debates over affirmative action, the fault line between discrimination and equality occurs just at the point that race-conscious programs can no longer be justified as remedies for identifiable instances of past discrimination. Broad theoretical agreement supports the concept of discrimination as colorblindness. It gives way to fundamental controversy when that principle must be violated in order to attain some broader concept of equality, defined in terms independent of discrimination itself.
The theoretical support for the concept of discrimination as colorblindness is so broad that the concept itself, is often defined redundantly as “intentional discrimination.” The widespread use of this phrase, without much sense that it is redundant, reveals what the problem is. Discrimination, in the usual meaning of the term, outside of civil rights law, requires some form of intent with respect to the grounds of discrimination. A manager cannot discriminate between skilled and unskilled, or qualified and unqualified, workers without taking these characteristics into account. So, too, he (or she) cannot discriminate on the basis of race or sex without taking these factors into account. Concepts such as “unconscious discrimination” and “discriminatory effects” are extensions of the concept of discrimination in the ordinary sense and have elicited controversy for just this reason. My purpose is not to question these extensions but to contrast them with the accepted sense of discrimination. Across the political spectrum, from right to left, there is agreement about the need to prohibit discrimination in its most narrowly defined and widely accepted sense: as adverse action taken against members of minority groups and against women simply because of their status as members of these groups.
Thus, Richard Epstein, who is usually a reliable indicator of the extreme right wing of acceptable political opinion, endorses a prohibition against discrimination by government, and to the extent necessary to dismantle the effects of government discrimination, discrimination by private employers as well. To be sure, from his book, Forbidden Grounds, it is sometimes difficult to tell whether he objects to discrimination by the government more because it is by the government than because it is discrimination. Nevertheless, he does oppose it, sometimes based on libertarian arguments for restricting the role of government and sometimes based on utilitarian arguments for promoting overall efficiency.
Representative of a more moderate conservatism is Alexander Bickel, who clearly stated his position in his well-known denunciation of affirmative action. As he said before the first affirmative action cases were decided: “The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored.” This famous passage promotes the principle against discrimination into a constraint on any form of legitimate government action—a surprisingly absolutist position for Bickel to take given his otherwise general allegiance to the pragmatic, conservative approach he adopted from Edmund Burke, with his sensitivity to the history and circumstances in which government must act.
Another constitutional scholar, John Hart Ely, offered an equally famous defense of affirmative action, confronting Bickel directly with the argument that it did, indeed, make all the difference whose ox was gored: the minority’s or the majority’s. He saw no constitutional objection to the majority discriminating against itself through programs of affirmative action. The majority could protect itself through the political process by means that were not available to minority groups. His position was based explicitly on rights of democratic participation: not simply to have each individual’s vote counted equally with every other but to have each individual’s interest considered equally in the entire process of government.
Still further along the spectrum of liberal views, many scholars have defended prohibitions against discrimination as a means, but only one means, of “breaking down patterns of racial segregation and hierarchy,” to use the phrase from United Steelworkers v. Weber, the major decision upholding affirmative action under Title VII. This defense of affirmative action as a remedy for the persistent consequences of past discrimination has been widely embraced, by figures otherwise so diverse in their philosophical commitments, as Lawrence Tribe, Cass Sunstein, Ronald Dworkin, Owen Fiss, and David Strauss. It attaches priority to the end of achieving effective equality over the means chosen to achieve that end. Prohibitions against discrimination are only one such means to this end.
At the left-wing extreme, partisans of Critical Legal Studies, Critical Race Theory, and Critical Feminists denounce any attempt to make prohibitions against discrimination the exclusive means of remedying inequality, not on the ground simply that they are ineffective, but on the ground that they legitimate the status quo of caste, oppression, and disadvantage. Alan Freeman, Charles Lawrence, Richard Delgado, Lani Guinier, and Catharine MacKinnon have criticized prohibitions against discrimination as the embodiment of a purely formal principle of equality that fails to take account of the reality of race- and sex-based subordination. This deficiency in existing law can be cured only by recognizing the rights of groups to achieve equal status and recognition. As I read these authors, however, they have stopped far short of advocating repeal of the laws against discrimination, like Title VII. Their criticism essentially is that existing law does not go far enough, not that it goes too far.
This commitment, however qualified and nuanced, to prohibitions against discrimination represents the common ground among legal theorists across the political spectrum. It constitutes the overlapping consensus, reached by theoretical arguments from very different, if not utterly incompatible, premises and proceeding by equally varied and divergent methods of reasoning. This consensus is not only a matter of theory, but expresses the widespread support for prohibitions against discrimination, as revealed by polling data on affirmative action. These data show that approval rates for affirmative action depend very heavily on how programs of affirmative action are described, whether in general terms using the phrase “affirmative action,” which elicit approval, or in terms that specifically describe the benefits conferred on narrowly defined groups. The common thread in all this data is that discrimination is the base line from which both approval and disapproval is derived: approval if affirmative action is seen to be necessary to remedy past discrimination; disapproval if it is thought to be only an instance of continued discrimination. Prohibitions against discrimination are the common ground on which disputes over affirmative action are fought out.
The reasons for the consensus on discrimination perhaps are obvious, but they are worth recounting because they are so frequently overlooked and their force so frequently underestimated. To speak in strictly categorical terms, these reasons combine pragmatic effectiveness with individualism, universality, and limited government—four characteristic values, if not defining features, of American democracy.
As an initial matter, prohibitions against discrimination were tailored to the immediate task of dismantling Jim Crow in its most obvious form of explicit segregation on the basis of race. And once they were effectively enforced, such blatant forms of discrimination were soon abandoned. Applying these prohibitions to hidden forms of discrimination has proved to be more difficult, as has their extension to entirely new grounds of discrimination, such as sex, age, and disability. The strategy of the law in all these areas, however, has been basically the same: to narrowly construe exceptions that allow discrimination on otherwise prohibited grounds, such as the exception for bona fide occupational qualifications on the basis of sex or age, and to engage in detailed case-by-case analysis of claims that otherwise neutral practices and legitimate reasons serve, in fact, as pretexts for discrimination. Both elements of this strategy preserve and enhance the focus of the law on the individual and not on characteristics that he or she is, by and large, powerless to change.
This focus on individuals leads to another attractive feature of laws against discrimination: that anyone can invoke their protection. The legal rule is only against considering specifically identified grounds of discrimination—against favoring one race, or ethnic group, or sex at the expense of another. The universal coverage of such laws has been emphasized from the beginning. As early as the Civil Rights Act of 1866, sponsors such legislation, which in that case protected “all persons” within the jurisdiction of the United States, have appealed for passage on the ground that everyone was protected from discrimination. As Senator Lyman Trumbull, said in the debate over that act, “this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights . . .” The same case was made for the Civil Rights Act of 1964 which, like its predecessors enacted during Reconstruction, protects all “individuals” from discrimination.
With the passage of other laws against discrimination, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act, the principle of universal coverage has been eroded, but in a manner that confirms rather than undermines the principle itself. The Age Discrimination in Employment Act protects only individuals who are at least 40 years old and, as we recently learned from the Supreme Court, does not protect even covered individuals from discrimination on the ground that they are too young, only that they are too old. The ADA likewise applies only to a “protected class” of disabled individuals, who suffer from physical or mental impairments that substantially limit one or more major life activities. Yet neither of these limitations on coverage absolutely exclude any segment of the population. As Justice Powell pointed out in a decision on age discrimination under the Constitution: a classification based on age—in that case requiring police offices to retire when they reach age 50—does not define a “discrete and insular minority.” “Instead, it marks a stage that each of us will reach if we live out our normal span.” By the same token, the coverage of the Americans with Disabilities Act is not confined to individuals disabled from birth. It protects anyone unfortunate enough to become disabled, and indeed, by the estimate of Congress when it passed the statute, it covers at least 40 million Americans. It is only a slight exaggeration to say that both of these statutes provide for universal coverage because almost anyone could fall within the scope of their protection.
This principle of universal coverage, expanding those who benefit from laws against discrimination, would be intolerable if it imposed equally large burdens on those who must obey these laws. But their expansive scope in one direction is offset by countervaling limitations in the other. Title VII, to take my main example, tells employers only what they may not consider—race, color, national origin, sex, and religion—not what they must consider in making personnel decisions. In hiring, firing, and otherwise dealing with their workers, employers are left free to set their own standards for employment. They are required only to treat all their worker equally according to those standards. As compared to more onerous forms of centralized regulation and control, prohibitions against discrimination leave employers with the freedom to structure their personnel practices and policies as they see fit.
At least that is the promise of laws against discrimination. It, too, has been eroded as the grounds of prohibited discrimination have increased. Federal law identifies only a handful of such grounds, but this list has grown and is likely to continue to do so. Thus employers cannot take account of veteran status, union membership, and actions taken as a whistleblower, and state laws have extended the list still further, to characteristics such as sexual orientation and marital status. The longer the list of characteristics that an employer cannot consider, the more it narrows and therefore functions like a list of factors that an employer must consider. It threatens to narrow the grounds of permissible decisions only to a short list of indisputably relevant factors, which nevertheless might be differently evaluated by an employer than by a court, a jury, or an administrative agency. Nevertheless, even this process must come to a halt at some point, and recent decisions have emphasized the difference between disagreeing with an employer’s offered reasons and finding them to be discriminatory.
All four of these features of laws prohibiting discrimination—pragmatic effectiveness in eliminating discrimination, individualized consideration and application, universal coverage of anyone who invokes their protection, and inherent limitations on government regulation—stop well short of justifying any form of affirmative action, and in numerous respects, argue against allowing it at all. These arguments have been ably articulated by the critics of affirmative action and I will not repeat them here. What is surprising is how these arguments are reflected in the contours of permissible affirmative action. Thus, the recent decisions on affirmative action at the University of Michigan both struck down the preference in undergraduate admissions that conferred a numerical advantage on members of designated minority groups and upheld those in the law school based on individualized consideration of race and national origin, along with a variety of other factors that promote diversity in higher education. The law school’s plan allowed anyone to claim the benefit of the preferences at issue, whether or not they fell within the racial and ethnic groups identified for special treatment, so long as they could point to their individual contribution to diversity. In doing so, it echoed—even if only distantly—the individualist and universalistic reasons supporting prohibitions against discrimination. The same point can be made about the voluntary nature of these affirmative action plans: no government regulation forced the university, even if it was a public university, to undertake these programs. And the most fundamental reason for upholding these affirmative plans relies directly on the need to reject the legacy of Jim Crow. As Justice O’Connor frames this reason in her opinion for the Court in Grutter v. Bollinger, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Neutral admissions criteria that result in only token representation of minorities at the elite colleges and universities in this country would be unacceptable. In the terms used under Title VII, colleges and university can take voluntary steps to break down traditional patterns of segregation and hierarchy.
These points, of course, do not add up to a full defense or complete justification of the Supreme Court’s decisions on this issue. My point is that these decisions and the preferences on the basis of race and national origin that they uphold are controversial precisely because they contravene the simple command not to take these factors into account. Again, in terms of Title VII, “race, color, religion, sex, or national origin” would have been “a motivating factor” in the decisions governed by the preference, “even though other factors also motivated the practice.” Yet the Supreme Court, and other institutions of government as well, take steps to minimize the divergence between the affirmative action plans that they uphold and the prohibition against discrimination that these plans violate. The letter of this prohibition might be violated, but the reasons that support it still command respect.
Whatever the weakness of these decisions as a matter of logic, they have much to be said for them in terms of popular appeal and acceptability. Public support for programs of affirmative action is strongest when they are framed in the ambiguous and uncertain terms of that phrase itself. As Owen Fiss pointed out during his conservative phase, while he was briefly at the University of Chicago, the phrase itself does not tell employers what to do, only that they must do something. In fact, its derives from an implied contrast with an omission or failure to act, most often by government, and it found its way into civil rights law, and indeed, into the literal terms of Title VII from the law of equitable remedies. The statute explicitly confers authority on judges to “order such affirmative action as may be appropriate,” for instance, to order employer, not just to cease discriminating, but to take affirmative steps to compensate for past discrimination and to prevent its recurrence. In recent polls, about 50% of all respondents favor of affirmative action in these terms, as general support for recruiting and training programs that increase the opportunities available to members of minority groups. When it is defined more specifically, as a preference on the basis of race or national origin, support declines dramatically, to less than 30%. Support falls still further and becomes overwhelming opposition for any preference that is mandatory in any sense, in the terms used in the polls, that becomes “a rigid quota.”
The same limitations can be found in other areas of legal doctrine within the field of employment discrimination law. The liability of employers for neutral practices with discriminatory effects, or the theory of disparate impact as it is usually called, is one such area. In its focus on the effects of employment practices rather than the motive behind them, it has much in common with affirmative action. The theory of disparate impact seeks to achieve equal opportunity directly, by examining the effects of disputed practices instead of the motive behind them. As a practical matter, too, employers faced with liability for disparate impact have powerful incentives to adopt affirmative action plans to alleviate the adverse effects of practices that they would otherwise have to justify with more or less extensive empirical evidence. As Judge Wisdom first articulated the problem, employers faced with liability for disparate impact, without the possibility of engaging in permissible forms of affirmative action, would be placed on a “high tightrope without a net beneath them.” They would be subject to suit either for disparate impact or for reverse discrimination. Allowing them to adopt race-conscious programs of hiring, training, and promotions, even if they do so in the shadow of the law, allows them to reduce their exposure to liability.
But here, too, the instrumental aims of legal doctrine necessarily limit its force as a vehicle for achieving equality. Liability for disparate impact under Title VII, whatever the hopes of its advocates, has never strayed very far from liability for intentional discrimination. Claims for disparate impact under Title VII have succeeded usually only when there is some reason to believe that the employer has engaged in intentional discrimination: where there is a complete absence or only minimal presence of members of a minority group, “the inexorable zero” as it has been famously characterized; or where the practice in dispute is inherently suspect, either because it has been previously found to be illegal or because it was framed in terms that obviously exclude members of the plaintiff’s class, such as ostensibly neutral height and weight requirements that nevertheless exclude a large proportion of women. As Justice Stevens said of the Supreme Court’s opinion in Washington v. Davis, “the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.”
The same dynamics—of departing from the principle against discrimination yet observing its underlying rationale—influences a completely unrelated area of employment discrimination law: the duty to make reasonable accommodations to disabled individuals under the Americans with Disabilities Act. That act, unlike Title VII, contains a detailed definition of discrimination, but paradoxically, includes within it the duty not just to disregard disabilities in most circumstances but to take them into account through the duty of reasonable accommodation. An employer must make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” unless doing so “would impose an undue hardship on the operation of [its] business.” Congress evidently saw no contradiction in defining prohibited discrimination as, in part, failing to make a discrimination, in this instance, in favor of the disabled instead of against them. For reasons that I have already given, we should expect this conceptual dissonance to result in actual controversy, as indeed it has under the ADA. The success rates of plaintiffs in asserting claims under the Act is remarkably low, as several commentators have documented. In the federal district courts and courts of appeals, plaintiffs prevail in only about 10% of the cases, a percentage much lower than for any other class of plaintiffs other than that of prisoners.
Unlike the highly visible issue of affirmative action, no segment of public opinion or any active political movement openly opposes reasonable accommodation of the disabled. And, indeed, the ADA itself received broad bipartisan support when it was enacted and signed into law by the first President Bush. Nevertheless, the form in which Congress enacted this duty seems to have taken on a life of its own, allowing employers to avoid all but the cheapest accommodations so long as they do not actively discriminate against the disabled. Indeed, in its only decision explicitly concerned with this issue, the Supreme Court has established a presumption against accommodations in violation of a seniority system. There is, the Court held, generally no duty to transfer a disabled employee to a job that he or she can more easily performed if another employee already holds that job or has the right to it. This decision corresponds, almost exactly, to decisions on affirmative action that have also completely barred virtually any kind of preference that displaces incumbent employees from their existing jobs. In decisions in these otherwise unrelated areas, the Court has sought to diffuse controversy by limiting the range and adverse consequences of discrimination in favor of a protected group. The law tolerates deviations from a simple prohibition against discrimination, but in deference to the overlapping consensus on civil rights, seeks to minimize their significance.
A variation on the same theme can be found in still another area of employment discrimination law. Claims for sexual harassment based on a hostile environment have been the subject of seemingly inexhaustible controversy, most recently explored in a large volume of essays, Directions in Sexual Harassment Law, edited by Catharine MacKinnon and Reva Siegel. There are, as might be expected, two sides to the disputes over this issue: that the law goes too far in prohibiting conduct usually tolerated, if not condoned, outside the work place; and that it does not go far enough. Curiously, however, there is no dispute over the other kind of sexual harassment, what used to be called “quid pro quo” harassment in which requests for sexual favors where accompanied by promises of material rewards on the job. Perhaps such claims allege conduct that too closely resembles the sale of sexual favors or coerced sexual relations to elicit much dispute. The same cannot be said of hostile environment claims, which most frequently have been criticized on the ground that they prohibit speech protected by the First Amendment, for instance, displays of soft-core pornography in the work place.
This criticism strikes me as misguided, not least because free expression is often limited in the work place for a variety of reasons. The real ground for this objection has to do with the burden of accommodating women and changing the locker room behavior that previously prevailed in jobs predominantly held by men. The objection, in other words, is very similar to the objection to reasonable accommodation under the ADA: employers and their employees cannot ignore, but must take into account the expectations and reactions of women who newly have entered onto the job. And just like other affirmative duties in employment discrimination law, this one has been narrowly construed, making employers liable only for harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” This determination, moreover, is made on the facts of each case, again reinforcing the individualist orientation of prohibitions against discrimination.
Like these prohibitions, too, the law of sexual harassment, is framed in entirely neutral terms. Men, as well as women, can assert claims of sexual harassment, and in a widely noted case, Oncale v. Sundowner Offshore Services, the Supreme Court recognized a claim of sexual harassment, not just by a man, but by a man harassed by other men. This decision raises interesting questions about the possibility of extending Title VII to protect gays from harassment under Title VII, but in many ways the decision was profoundly conservative. It simply applied Senator Trumbull’s observation, now well more than a century old, that prohibitions against discrimination protect everyone.
The account of the overlapping consensus on civil rights that I have offered here fits the contours of disputes across a wide range of issues in employment discrimination law. I do not mean, however, to advance the nearly tautological claim that disagreements break out where the overlapping consensus breaks down. My claim is the prohibition against discrimination, endorsed by that consensus, structures the debate and influences the law on issues outside the area of its immediate application—outside of claims now characterized as those alleging “intentional discrimination.” On the issues that I have discussed—affirmative action, disparate impact, reasonable accommodation, and sexual harassment—and on many more, the prohibition against discrimination affects the outcome of issues that it cannot, taken literally, itself resolve. Yet the reasons that support the prohibition—in terms of history, morality, and political appeal—continue to exercise authority beyond the boundaries of the prohibition itself. Its reach, we might say, exceeds its grasp.
Many writers and advocates for civil rights have lamented this state of affairs. It is common practice for academics to decry the prohibition against discrimination as merely a formalistic device that constrains the pursuit of true equality. It is, on this view, a solution to yesterday’s problems—to forms of explicit segregation and discrimination that have largely disappeared from view, only to be replaced by less visible practices with the same result. Critics of this limited concept of discrimination—and I count myself among them—have not, I now think, given sufficient credit to the force and appeal of this principle. If it doesn’t solve our problems today, at least it gives us a good indication of what they are and what the acceptable solutions to these problems might be. To return to an analogy to the work of John Rawls, if he is concerned with acceptability in formulating and defending abstract principles of political theory, then those of us who work with the far more concrete issues in civil rights law should take these issues seriously as well. We might want to go beyond the principle against discrimination—or even go against it— in order to achieve equality in some broader sense. But we must do so with an eye to the values that made that principle acceptable in the first place. Neglecting those values threatens to make any attempt to achieve equality, in any form, ineffective. But my thesis today has been mainly descriptive. Its normative implications are for another time.
Having said this much, and raised more questions than I have answered, it is too late for me to observe another maxim appropriate to today’s date: “Let a fool hold his tongue and he will pass for a sage.” But what wisdom I have gained, I owe to my colleagues and students at this law school. To all you, thanks for all your help over the years, and I hope, for many more to come.