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Posted April 5, 2004
Controversy, Consensus and the Concept of
Discrimination
Chair 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.
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