Why Our Laws Against Discrimination Have Failed
By: David Sackman
Tags: Employment, Discrimination, Supreme Court, Anti Racism, Law

Why Our Laws Against Discrimination Have Failed

Photo by Max Anderson on Unsplash

In 1945, Carey McWilliams wrote an article urging the radical idea of enacting laws against race discrimination: Race Discrimination and the Law.[i] McWilliams there argued that it was the law which lead to racist attitudes, so that anti-discrimination laws would lead to more tolerant attitudes. He concluded the article by saying:

“What we, need, above all, is a new federal civil rights statute, cast in the form of a Fair Racial Practices Act and enforced by modern administrative methods as a matter of public policy rather than by individual action as a matter of personal privilege.”

In modern terms, the emphasis on “public policy” means addressing systemic racism rather than the “personal privilege” of individual reparations for past actions. In medical terms, this means attacking the disease, not just its symptoms.

McWilliams helped draft such a “Fair Employment Practices Act” (FEPA) which would have outlawed discrimination based on “race, religion, color, national origin or ancestry” in employment. This appeared as Proposition 11 on the 1946 California ballot. It was defeated by nearly a three-to-one margin, based on the argument that “intolerance is a matter of individual conscience that cannot be changed by legislative coercion.” The same bill was introduced, and defeated, in the California legislature every year thereafter, through 1958. Years of organizing, education, litigation, and political activism by a broad coalition (including a young Cesar Chavez), finally bore fruit in 1959. Newly-elected Governor Pat Brown made good on his campaign promise to pass FEPA.[ii] Five years later, Congress followed suit, with Title VII of the Civil Rights Act of 1964, based on the California law, but adding “sex” to the list of prohibited bases of discrimination.[iii]

Over six decades later, have we come any closer to eliminating discrimination or the racism which underlies it? The legal prohibitions against discrimination have undoubtedly contributed to changes in attitudes over that time. But there has also been a backlash, which in the last few years has grown into a firenado. Even supposedly-progressive California resoundingly defeated a Proposition to restore affirmative action in public employment, education and contracting, on the same ballot which overwhelmingly favored Biden over Trump.[iv]

The racist and xenophobic attitudes underlying discrimination have not gone away, but have only been redirected. I believe that this is partly due to the fact that we have not followed all of Carey McWilliams’ advice. Rather than enforcing these laws “as a matter of public policy” we have turned them into individual actions as a matter of “personal privilege.” When put this way, the law is viewed as creating a competition between individuals rather than a tool to raise the welfare of all.

Legally, the “public policy” attack on systemic racism usually goes under the rubric of the “Disparate Impact” theory. As the Supreme Court explained in the early years of Title VII, “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Twenty years after Griggs, the Civil Rights Act of 1991 codified the Disparate Impact theory into Title VII.

The “personal privilege” view of discrimination law usually comes under the rubric of the “Disparate Treatment” theory. The Disparate Treatment theory typically focuses on the individual, so that the “inquiry regarding an individual’s claim is the reason for a particular employment decision” involved. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984). Thus, in Wal-Mart Stores v. Dukes, 564 U.S. 338 (2011), the Supreme Court denied class certification, despite evidence of systemic discrimination against women in promotions, because each class member would have to separately prove that the reason for her lack of promotion was her gender.

This topsy-turvy focus on the individual is illustrated by the case of Ricci v. DeStefano, 557 U.S. 557 (2009). The Supreme Court there held that a city had to award fire-captain positions according to a multiple-choice test which was admittedly discriminatory, and never shown to have any relation to real-world job qualifications, simply because white applicants relied on the test and studied for it. The Court justified this result in order to avoid “upsetting an employee’s legitimate expectation not to be judged on the basis of race” which would be “antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.” 557 U.S. 557, 585.

In concurrence, Justice Scalia suggested that the entire disparate impact theory should be thrown out, as contrary to the equal protection guarantee of the Fourteenth Amendment. 557 U.S. 557, 594. According to Scalia, an individual’s personal privilege trumps society’s interest in ending systemic racism. While the “Court’s resolution of these cases makes it unnecessary to resolve these matters today,” the supposed “war between disparate impact and equal protection will be waged sooner or later.” 557 U.S. 557, 595–96. With Scalia’s protégé, Amy Coney Barrett, joining the Court, that war is now upon us.

Private attorneys, such as myself, must share the blame for this emphasis on the personal privilege of seeking individual reparations, rather than the public policy of fighting systemic racism. There is not as much money in attacking systematic racism as there is in seeking monetary compensation for individual acts of discrimination. In seeking monetary compensation, the most oppressed low-wage workers offer the least payout for lawyers. Our choice of cases and remedies drives the course of the law.

Administrative agencies should be pursuing this “public policy” as McWilliams suggested. Yet those agencies are not only underfunded, but have been timid in using their limited resources for such broad relief, and under certain administrations have affirmatively sabotaged efforts to fight discrimination. Legal-Aid organizations who receive funding from the Legal Services Corporation, which should be championing the most oppressed workers, are absolutely prohibited from filing class actions, representing undocumented workers, and many other activities which could further this public policy against discrimination.

Even the independent organizations that were once at the vanguard of the fight against racism, such as the NAACP, have become reactionary. I call them reactionary in the literal sense of the word — they simply react to actions taken by others, rather than affirmatively bringing cases as part of a long-term strategy to advance the law.

Instead, it is the forces of racism who have taken to heart the strategies of Thurgood Marshall and Carey McWilliams; they are the ones now thinking through and executing long-term strategies to change the law. For example, they have successfully weaponized the First Amendment so that “religious” employers now have “free rein to discriminate be­cause of race, sex, pregnancy, age, disability, or other traits protected by law” without having to “cite or possess a religious reason” for the discrimination at all. Our Lady of Guadalupe School v. Morrissey-­Berru, 140 S.Ct. 2049, 2072 (2020) (Sotomayor, dissenting).

It is time for us to regain the initiative and the long view of this struggle, rather than just reacting to the horrors of the day. It is time for us to fix the problems of systemic racism, rather than just applying the ointment of reparations to its wounds. It is time to take up the struggle “as a matter of public policy, rather than by individual action as a matter of personal privilege.”

The war against racism cannot be won by giving reparations to its individual casualties. Fighting systemic racism means changing the system itself. It is a problem of society to be solved, not of individual debts to be paid. Only when we attack racism as a matter of public policy will we once again make any progress against it.

Art by Jerolyn Crute Sackman

NOTES

[i] Race Discrimination and the Law, 9 Science & Society №1 (Winter 1945). The purpose of that particular article was to enlist social scientists into the fight against racial discrimination. This, at least, was successful. Social science research was pivotal in winning cases like Brown v. Board of Education, 347 U.S. 483 (1954), ordering the desegregation of schools.

[ii] Calif. Stats.1959, c. 121, now in Calif. Government Code §§ 12900–12996.

[iii] Pub. L. 88–352, now in 42 U.S.C. §§ 2000e through 2000e-17. “Sex” was added as either a joke, or a poison pill, by Southern Senators. Their pill backfired.

[iv] Proposition 16, put on the November 3, 2020 ballot by the Legislature through ACA-5.