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Prejudicial appearances The logic of American antidiscrimination law
By Robert Post
Duke University Press
Chapter One K. Anthony Appiah | Stereotypes and the Shaping of Identity
I have spent a good deal of time over the years thinking about how our racial identities should figure in our moral and political lives - reflecting, that is, on the ethical significance of one dimension of difference. I have thought about these questions as a moral philosopher and not as a legal theorist, and so I have not had to work within the constraints imposed by the law and the history of its interpretation. The advantage of this freedom is that one may reflect on how things should be, unconstrained by the necessity of deference to the confusions of the executive, legislative, and judicial branches of our government. The disadvantage is that one can find oneself proposing norms or practices that have no chance at all of being implemented and giving advice that seems, in the justly derogatory sense, "merely theoretical." So it is cheering to find someone like Professor Post, who both recognizes an important moral truth about the ethical significance of difference and believes that it can be brought to bear in the practical business of interpreting actually existing American antidiscrimination law.
The moral truth I have in mind is the importance of a distinction that is at the heart of Post's characteristically elegant essay, thatbetween treating people equally on the one hand, and treating them as if they were the same on the other - the distinction, as one might put it, between equality and sameness. The Vonnegut story he quotes rightly represents as wildly dystopian a world in which everyone is pushed toward sameness. This story should make us suspicious of that interpretation of equality as an ideal.
Professor Post does a thoroughly convincing job of showing how unhelpful the picture of equality as sameness has been. He urges on us an approach in which, rather than pretending that difference does not exist, we take on, in part through legal action, the social reshaping of identities. The cases he explores center on gender, though he makes important observations along the way about race; but the conclusion he wants to draw applies to both of them and to other forms of identity, such as sexual orientation and disability as well. He wants us to think of the project of antidiscrimination in all of these cases as one of reshaping identities rather than ignoring them. But he does not say very much - and he says nothing directly and explicitly - about what norms should guide this reshaping. So I shall try, in the next part, to sketch in some features of a more direct and explicit account. I do not propose a general account of the ways in which it is appropriate to seek to reshape identities. But I want to say enough to connect the question of antidiscrimination with some central liberal ideas - in particular, in part II, with autonomy, dignity, and individuality. Against this background, in part III, I will then take up the issue of "stereotypes." Here I shall be more explicitly critical than Post is of current judicial facons de parler: For I think the way this word is used conflates a number of distinct issues. In part IV, I make some concluding observations about why affirmative action, in the form of racial or gender preferences, need not be inconsistent with antidiscrimination properly construed - that is, as Post and (as he points out) Justice Brennan in Weber both construe it.
The best way, I think, to grasp the power of the idea of equality is to think about the past practices against which those who have espoused the ideal were reacting. Slavery, Jim Crow, and what John Stuart Mill called the "Subjection of Women"; the denial of civic rights to ethnic and religious minorities and to homosexuals; systems of caste and class: All these have evoked an ideal of equality in counterreaction to them. This suggests to me that it is not disparate treatment as such - not merely treating a member of class A differently from a member of class B - but rather some fairly specific kinds of disparate treatment that people have had in mind. After all, nobody thinks it offends equality to send some people to jail and not others - even though such treatment on the part of the state could hardly be more disparate - because there is an important difference in a just legal system between the sheep and the goats - namely, that the goats have been found guilty of a crime. The reason this does not offend equality, of course, is that there is an ethically relevant distinction between the As and the Bs here. And I have always drawn the inference from such cases that the key to equality is best understood negatively: Equality as a social ideal is a matter of not taking irrelevant distinctions into account. All the work here will go into deciding what distinctions are relevant. But in my judgment that is exactly where the work should go.
To understand equality this way is to see it as requiring that we treat like cases alike and thus to consider what makes two people or two kinds of people morally alike for current purposes. People should be treated differently because there are grounds for treating them differently (or at least no grounds for not doing so): Egalitarians are people who have strong views about which grounds are permissible (and impermissible). You might think that social identities - race, ethnicity, gender, class, sexuality, religious affiliation - are never proper grounds for disparate treatment; you might think, like some of the good burghers of Santa Cruz, that (at least when we are acting as employers and public officials) we ought not to treat the fat differently from the skinny or the pretty from the plain. I used to think something like this myself, so I would not regard you as foolish if you did. But I no longer think that so general a proscription can be right.
And that is because of another important feature of equality as a social ideal; namely, that questions of equality largely arise when the treatment is not only disparate but in some way invidiously so. It is one thing to give pink cookies to the girls and blue ones to the boys, but another to give the boys expensive toys and the girls cheap trinkets. There are those who think we should never treat females and males differently as such - that is, that our ground for treating them differently should never be that they are men and women. I confess to thinking that such gender blindness would be slightly crazy or, in our world at least, simply impossible. Sexuality, as it is currently configured, makes the distinction between males and females relevant for most people: Is it really wrong to pay more attention to the men than the women at the party, if I am on the lookout for a partner? Gender (and it is gender, not just sex) seems relevant - or at least seems so for most people. As I scan the party, what I am considering offering to a potential partner is not something that is invidious to offer only to someone who, for some reason and in some way, attracts me. There are perfectly possible criticisms of the structure of sexual desire: It seems wrong, for example, to be out looking for someone whom I will enjoy abusing, even if that is what turns me on. But I do not think it can be wrong to be out looking for a man, or for a woman, as such. (This, by the way, immediately makes gender and race different for the purposes of thinking about disparate treatment, because there seems to be no morally acceptable feature of human life that stands to racial identity as sexuality stands to gender. That is one of the reasons why, as Post rightly observes, "antidiscrimination law seeks to exercise a far more sweeping transformation of race than of gender.")
I am using invidious here as a term of art, to describe treatment that differentially affects A and B with the aim or effect of producing a result that disadvantages one or the other of them in virtue of her identity. So it is not enough that the outcome be disparate and to the disadvantage of one of them: It must be disparate because, in some sense, their identities are different.
Whether or not I am right about either of my points - that equality is not identity and that the ideal of equality is aimed at invidiously disparate treatment - Post, in his sociological account of American antidiscrimination law, agrees with me. It used to be taken for granted that it was all right for the state and for private employers and those who provided public accommodations to make invidious distinctions between blacks and whites and between men and women. That is, it used to be thought to be all right to give as a reason for granting something to A that you denied to B - a job, access to a hotel, voting rights - that A was white or male and B was black or female. The statutes and the constitutional law making of the last thirty or more years include many attempts to move away from that practice and that assumption.
Post's paper focuses on antidiscrimination as a principle in the laws regulating employment. But invidious disparate treatment occurs in many areas of social life, and it will be helpful, I think, to frame the issues he considers within a more general understanding. So let me define a category of what I shall call public actions. This is intended to cover actions taken by state officials in their official capacity - which are clearly subject to norms of nondiscrimination - but also to include actions undertaken by people in the course of hiring and managing employees and in admitting people to and ministering to them in public accommodations. It is an interesting question why, in a liberal society, antidiscrimination should be enforced as a legal norm in the sphere of public actions that are not state actions. I think the answer is clear enough: In our world, allowing each of us a fair chance at developing a dignified, autonomous existence, in which we can pursue a life governed by aims and an identity that we have reflectively appropriated, requires that we have access to employment and public space, as well as to the rights and privileges of the citizen. Dignity and autonomy being the core liberal values, a liberal will want the state to insist on reasonable access to employment and to public space for all. Why limit this insistence to public actions? Because to include other spheres of action within the ambit of antidiscrimination law - to require me not to distinguish between men and women, blacks and whites, in my everyday interactions - would infringe on my capacity to construct my own life. Freedom of expression and of association are central to such self-construction, and requiring me to have dinner parties in which gender or racial identity does not feature as a ground for choosing the guests interferes with these freedoms.
Because liberals believe not just in dignity but in equal dignity, what is made available by the state should be made available equally to everyone. The invocation of equality here must mean that the rights in question should not be denied to anyone by virtue of a feature that is morally irrelevant in the context. And so here, in the crafting of these regulations, there is space for discussion of which features should and should not be taken into account.
Post takes up exactly such a discussion when he distinguishes Wilson and Fesel, suggesting that gender is relevant in the context of sexual privacy but not in the context of the forms of service properly provided by airline staff. I agree that this is the right sort of way to make the distinction between these cases. But we cannot always say simply that gender is relevant to employment in the context of sexual privacy, because we should then have to hold that Griffin was wrongly decided. In that case what mattered was the relative weight of the sexual privacy rights of prisoners on the one hand, and the righs of women to equal treatment as prison guards on the other. Prisoners do have sexual privacy rights (it would be wrong to broadcast photographs of showering prisoners for the gratification of the general public). The gender of prison guards is, indeed, therefore not irrelevant. But, in this context, sexual privacy weighs less than the need to open to women on the same terms as men forms of employment previously closed to them. The general point is that we may have to consider sometimes not just whether gender is relevant but also how weighty a consideration it provides.
I shall call the rights granted to us by laws that regulate public actions "public rights," and those that limit only actions taken by the state I shall refer to, in the usual way, as civil rights. Constraining employers, hotelkeepers, and the like by granting us public rights against them does indeed limit their freedom, but it does so in a way that is usually less central to their life projects than the opportunities they would deny us are to ours. (That is why the limitation to public actions is appropriate, though there is reasonable room for debate about exactly what belongs in the category of public action.) Where constraining an employer to grant us public rights does interfere profoundly with individual or collective projects - as requiring the Catholic Church to employ women as priests undoubtedly would - we cannot justify it on these grounds. And, since we must, as a result, adjudicate the claims of individuals against such organizations, we are speaking here of the balancing of opposing interests.
It would be a mistake to allow the centrality of a project to my individuality by itself to trump your interests in such cases: Do we want the centrality of anti-Semitic hatred to my life to entitle me to keep Jews out of my hotel, for example? And so, we are obliged also, in the end, to address the merits of the projects.
In attempting to avoid invidious discrimination in public actions on the grounds of gender or race, we discover at once that it is not enough simply to require that race and gender not figure in the announced reasoning of public actors. People and legislators can easily cover gender bias by pretending that it is really something else - long hair, earrings, the risk of motherhood - that they are worried about. That intentions are easy to disguise means that we have a reason to look beyond facial neutrality and see whether there is not an invidious hidden agenda. But there is a deeper reason than this why we must look beyond facial neutrality. The fundamental rationale that I sketched for public rights was that they provide opportunities for their beneficiaries that are essential to a dignified autonomous life: If an action deprives me of such an opportunity, it hardly matters, from this point of view, that this was not the result of intentional malice. Of course, it may be that the deprivation was by virtue of a morally relevant feature. (For example, I might have been deprived of my liberty because I committed a crime.) Thus, it is important in assessing the harm done to me by the deprivation of an opportunity that we ask whether it can be justified. But if it cannot, then, so it seems to me, the fact that the agents of my deprivation did not intend to harm me seems less important than that they did in fact harm me. I may be entitled to a remedy, even if they are not reasonably to be subjected to punishment.
That, in my view, is why antidiscrimination law naturally leads to discussion of "disparate impact." It is also why something like a "bona .de occupational qualification" (BFOQ) exception seems natural as well: If my gender, nationality, or racial identity are in fact relevant for the purposes of a public action, then there is nothing morally troublesome about taking them into account. (So we ought to admit the possibility of a BFOQ in the case of race, as the federal law does not, because there seems nothing harmful, in a realist production, in requiring that we have actors who look - and sound - like people of whatever racial identity they are representing.)
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