"Covering" Differences

There were a bunch of things in Sunday's New York Times that caught my interest and on which I had originally set out to write yesterday. But then I got carried away on the Alito thing and ran out of time. But here's another one of them:

There was a long article in the Times Magazine by Kenji Youshino, a Yale law professor, on the pressure that society puts on minorities to hide or "cover" characteristics of their minority status over which they have some control. See"The Pressure To Cover." Youshino argues that the triumph of the American Civil Rights movement over the last 40 years has been to thoroughly discredit status-based discrimination. Today, it is not only illegal to discriminate against people because of their race, ethnicity, religion, gender or handicap; there is now a near universal acceptance that such discrimination is wrong. This is not to say that people no longer discriminate on these bases. However, it is to say that few people will any longer admit to doing so. Such status-based discrimination is just no longer acceptable in polite society, and those who retain such discriminatory impulses (all of us to some degree or another) recognize, for the most part at least, that acting on those impulses violates what has become a well-established cultural norm.

The general principle that underlies this norm is an agreement that it is wrong to discriminate against a person for things the person cannot change. (Note: religion is the one exception to this, since technically a person is able to change his religion, but that exception is explained by our shared commitment to freedom of religion). Gay Rights is still an active issue precisely because there is, as yet, no agreement on whether sexual orientation is or is not a matter of choice. Of course, homophobia is not at bottom a result of an intellectual distinction between choice and non-choice any more than race discrimination was (or is). Prejudice of all sorts springs first from the guts, not the head. However, when it comes down to defending or justifying discrimination, the only "principle" on which we can fall back is that of choice. That is, while we all agree that it is wrong to discriminate against a person because of what he is, we generally feel that it is OK to discriminate against him because of what he does.

Youshino wants us to re-think the second half of this distinction. He argues that, at least in some cases, individual actions are a form of self-expression and that where that self-expression is linked with the person's status, it is arguably no more valid to discriminate based on those actions than it is to discriminate based on the status itself.

He offers a number of examples, but two should suffice for our purposes.

1. A black woman employed as a stewardess for an airline wanted to wear her hair in "corn rows", but this violated an airline policy against hairdos comprised entirely of braids. The woman sued, arguing that the policy was racially discriminatory. She lost.

2. Youshino, who is gay, received the following (perhaps friendly) advice when he first arrived at Yale: " 'You'll have a better chance at tenure if you're a homosexual professional than if you're a professional homosexual." Youshino understood the speaker to mean that, since he was himself gay (and openly so), he would be better off professionally if he devoted his teaching, research and writings to areas of the law other than Gay Rights.
   

These two examples present very different types of situations in that the first is a is a case of de jure "discrimination" whereas the second presents a much more subtle case of unspoken, even unacknowledged "bias". But, in both kinds of cases, Youshino argues, the underlying impetus is an implicit desire by the organizations at issue (the airline or Yale) to discourage actions that tended to emphasize or call attention to the person's minority status. He agrees that some discrimination based on action is justified. For instance, no one would argue that it is or should be either illegal or immoral to discriminate against arsonists in interviewing candidates for a job in the fire department. But Youshino argues that the action vs. characteristic distinction is often not enough of a justification. The question he wants us to ask in each case (both as courts and as people) is "why?" Why did the airline want to prohibit women from wearing their hair in corn rows? Why should a gay law professor be encouraged to devote his professional life to issues other than those surrounding sexual identity? More generally, he poses the question thusly:

[The "New Discrimination," as he calls it,] does not aim at groups as a whole. Rather, it aims at the subset of the group that refuses to cover, that is, to assimilate to dominant norms. And for the most part, existing civil rights laws do not protect individuals against such covering demands. The question of our time is whether we should understand this new discrimination to be a harm and, if so, whether the remedy is legal or social in nature. . . .

This distinction between being and doing reflects a bias toward assimilation. Courts will protect traits like skin color or chromosomes because such traits cannot be changed. In contrast, the courts will not protect mutable traits, because individuals can alter them to fade into the mainstream, thereby escaping discrimination. If individuals choose not to engage in that form of self-help, they must suffer the consequences.

I have to admit that I was shaking my head at this whole line of argument. The very idea of a "new discrimination" was appalling enough, since we continue to have trouble enough with the old. More important, his theory conjured up a whole new and nearly infinite universe of minority-based "entitlements" that would serve to only further exaggerate the "identity politics" that have led in no small part to the polarization of our society. "What is so wrong," I wondered, "with asking people to conform a bit, even if society has no good reason for the standards to which they are asking people to conform? After all, a shared set of standards and norms is the glue that makes us a society as opposed to an agglomeration of individuals. We should not have to have a rigorous justification for everything we ask of the members of our society." I was so far disgusted with the argument that I was about to quit reading when I came to this statement:

[W]e must shift away from claims that demand equality for particular groups toward claims that demand liberty for us all. This is not an exhortation that we strip protections from currently recognized groups. Rather, it is a prediction that future courts will be unable to sustain a group-based vision of civil rights when faced with the broad and irreversible trend toward demographic pluralism. In an increasingly diverse society, the courts must look to what draws us together as citizens rather than to what drives us apart.

The thing that "draws us together" in Youshino's view is our shared commitment to liberty.

For me, "liberty" is the magic word. Liberty is, indeed, the correlative to tolerance: no one can ever be free unless others are willing to tolerate some level of interference with their own freedom of action. Indeed, at some level, the invidiousness of discrimination has less to do with "equality" than it does with liberty. For instance, read literally, the Supreme Court's conclusion that "separate is inherently unequal" is simply wrong. Separate schools can be made equal. What is wrong with segregation is less a matter of inequality than it is of one group imposing unreasonable limitations on the liberty of another. Suddenly, I was ready to give Youshino's argument more thought -- at least enough more to get me through the rest of the article.

In the end, I don't think this is a useful legal distinction in any but the most extreme cases. There are unquestionably some cases where the organizational interests furthered by a prohibition on individual conduct are so insignificant (or even non existent) as to make the prohibition's imposition on individual liberty seem plainly wrong. The dreadlocks case would seem to be one good example of such a case. The airline policy wasn't really objectionable because it was unequal. It was objectionable because it was silly. In other cases, the interests of the individual are so strong that they are sufficient to overcome even some level of (arhgualbly) legitimate state interest. Consensual, private sexual relations between homosexual adults is one such example, and the Supreme Court has now struck down such prohibitions using a liberty-based analysis. Another is presented by one of the examples Youshino provides: a young woman, who was known to be a lesbian at the time she was hired by a state attorney general's office was subsequently fired when her employer learned that she and her partner had had a religious "commitment ceremony." The attorney general argued that this could have interfered with her ability to enforce state laws against homosexual marriages. In fact, I do not think that is a worthwhile or valid "interest" to begin with, but even if it is it is so ephemeral as to be an inadequate justification for the burdens the policy placed on the liberty interest of the woman.

But these are the easy cases, and the problem, at least in law, is that once you get away from the distinction between being and doing, it is very hard to figure out where to stop. If the woman in the airline case was entitled to wear cornrows, on what basis would we allow an employer to prohibit another person from wearing a bone in her nose.

Since a liberty-based analysis is necessarily a balancing of the liberty interests of the individual against the organizational interests in rules that apply to everyone, there are a nearly infinite number and gradations of respective interests, and the subjectiveness of any "weighing" of such conflicting interests makes this an area in which I do not wish to see the courts venture in any but the most egregious cases --i.e. really important individual liberty interests vs. really silly or non-existent institutional interests.

However, as a way of looking at our own relationships with people it does have some potential. When an employer makes rules, it ought to ask itself -- and perhaps its employees -- whether this rule actually has any legitimate purpose other than to demand conformity. If it does not -- and such rules frequently do not -- then maybe the rule should not be adopted, even if it would not be illegal.

To his credit, I think, Youshino reaches essentially the same conclusion. While he does see a role for the law in extreme cases, he also acknowledges that:

The primary solution lies in all of us as citizens, not in the tiny subset of us who are lawyers. People confronted with demands to cover should feel emboldened to seek a reason for that demand, even if the law does not reach the actors making the demand or recognize the group burdened by it. These reason-forcing conversations should happen outside courtrooms - in public squares and prayer circles, in workplaces and on playgrounds. They should occur informally and intimately, in the everyday places where tolerance is made and unmade.

What will constitute a good-enough reason to justify assimilation will obviously be controversial. We have come to some consensus that certain reasons are illegitimate - like racism, sexism or religious intolerance. Beyond that, we should expect conversations rather than foreordained results - what reasons count, and for what purposes, will be for us all to decide by facing one another as citizens. My personal inclination is always to privilege the claims of the individual against countervailing interests like "neatness" or "workplace harmony." But we should have that conversation.

Such conversations are the best - and perhaps the only - way to give both assimilation and authenticity their due.

Even here, though, I have my doubts. It all sounds so warm and fuzzy to imagine ourselves all having such "conversations." But who has time for that? And, moreover, is it really reasonable to expect such conversations to result in agreement? Human nature just does not work that way. The more likely outcome, I think, is increased hostility as some people's self-expression is approved and others' is not, for reasons that those denied will almost inevitably find "inadequate." At some point, I think, even if the effect is to constrain an individual's "self actualization" (my LORD I hate that word) we need in the name of efficiency if nothing else to grant employers and other organizations the right to be arbitrary at least in cases where the liberty individual liberty interests at stake would commonly be considered insignificant.