Vol. 15 No.3 (March 2005), pp.215-218

RACIAL CULTURE: A CRITIQUE, by Richard T. Ford. Princeton: Princeton University Press, 2004.  248 pp.  Cloth.  $27.95 / £17.95.  ISBN: 0-691-11960-0.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff@jsums.edu.

Over the last thirty years, critical race and gender theorists have questioned whether and if law can protect difference in a meaningful way, especially in the workplace. Richard T. Ford, a law professor at Stanford University, provides an interesting critique of the resulting “multicultural assumptions of difference” in his book RACIAL CULTURE. While he recognizes most refutations of these approaches come from conservatives with a political agenda of legal colorblindness, Ford explicitly asserts he shares the political and social goals of the progressive left. More specifically, he refutes colorblindness as a means of equality (see BROWN et al. 2003 for an articulation of this position). Ford argues that racial identity politics have the liability of undermining their stated objective of eliminating racism in the workplace. The author is clear; his opposition to discrimination based on status does not mean that one is not ambivalent about the development of a new legal category of discrimination based on culture. His overarching concern is that “race,” which is socially and economically constructed, is given additional legitimacy by the assumption that every race manifests cultural similarities and that these cultural artifacts should be protected in the same manner as racism:

Even if one believes that the races are distinguished by cultural differences, one needn’t advance an inevitably oversimplified account of such distinctive racial cultures; we can acknowledge the salience of race in order in resist racial status without a substantive cultural account of group difference (pp.92-93).

This book is eminently readable, although much of the legal theory with which Ford wrestles is less accessible. To demonstrate his points, Ford relies upon many of the same lower court cases that are also the analytical focus of those to whom he refers as “right to difference” legal scholars. These cases, which Ford evaluates from both his and the “right to difference” perspectives, clarify his concerns and bolster his analysis. Two examples in particular are relied upon throughout the book. The first tells the story of Renee Rogers who worked for American Airlines in the late 1970s and preferred to wear her hair in braids. As an African-American woman, she believed her braids reflected her heritage and that it “has been, historically, a fashion and style adopted by Black American women, reflective of cultural, historical essence of the Black woman in American society” (RENEE ROGERS v. AMERICAN AIRLINES, at 229). Rogers claimed that because the braids were an expression of her racial identity, her firing based upon hairstyle was a violation of her legal rights to her culture.  In the second case, Spun Steak employed thirty-three workers, of whom [*216] 24 were Spanish-speaking. Almost all of the Spanish-speaking employees were Hispanic. In September 1990, the company adopted a policy requiring that only English be spoken during work hours and allowing the employees to speak Spanish during breaks. A lawsuit was filed alleging that the new policy violated Title VII by disparately impacting Hispanic workers without an articulated legitimate business justification (GARCIA v. SPUN STEAK).

Ford argues throughout the book that, while the “right to difference” scholars have adopted such issues (hair style and language, among others) as representing the next phase of racial discrimination law, the cases demonstrate the pitfalls of that approach. The right to difference movement argues that behavioral characteristics like language and fashion are surrogates for race, and, if racial discrimination is illegal and actionable, bigots will simply shift the basis for their discrimination:

And in order to capture more subtle cases of discrimination, the law must also prohibit or at least scrutinize discrimination on other bases that might be used as proxies for racial status. But then aren’t racially correlated traits—racial cultures—all potentially proxies for racial status? Yes, and when we have reason to believe they are intentionally used as proxies, discrimination based on them should be illegal. But, because the essence of the employment relationship is that employees are expected to conform their behavior to the demands of their employers, it is reasonable to exclude discrimination based on volitional behavior as a general manner and limit the legal protection to characteristics that are not within the control of the potential employee (p.101).

 

Ford believes that this protection of culture will lead to greater racial discrimination, albeit mostly within the protected community.  For example, if braids become a proxy for African-American women’s race, what happens to Black women who chose not to wear braids or women of other ethnic groups who do?  Should the legal process determine what it means to be Black? White? Latino? Asian? For Ford, it is likely that the discrimination against braids was a racist policy. Consequently, he argues that there is adequate protection under Title VII, as currently interpreted, to challenge this illegal action in the workplace. As Spun Steak demonstrates, “right to difference” litigation contains the danger of an increased hostility towards other racial groups. In this example, the employer’s rationale for the policy was to prevent harassment of non-Spanish speaking racial minorities employed by the company; in particular, one African-American and one Asian-American claimed that other employees were making racially derogatory comments about them in Spanish. The company passed the policy to ensure a non-hostile working environment for all employees. According to Ford, the proper solution to these inevitable conflicts is simple:

[A]nti-discrimination law should be refined so as to recognize only those differences attributable to the production of formal status hierarchy, for the purpose of eliminating or reducing the ill-effects of such hierarchies. Difference discourse, by metastasizing status into a thick social identity, distracts from and confuses the vital task of correcting status hierarchy. Legal decision [*217] makers need to be aware of status differences and castelike social practices in order to correct the injustices that they do. But we should resist the temptation to write a speculative sociology of group difference into law or to enlist the state into a psychotherapeutic quest to validated “repressed” identities (p.123).

Finally, Ford is concerned that in privileging racial culture we foster an environment of conflict and competition, without a thoughtful analysis of which cultures are most worthy of protecting. His assumption is that racial integration should be a dominant goal of society, with members of racial groups selecting for themselves which aspects of their culture are most worthy of preserving. Many readers may agree with aspects of his legal argument, without completely accepting his rejection of identity politics as “provincialism.” Ford offers instead a vision of “cosmopolitanism” in which “minority cultural practices will survive without legal protection, albeit often in an altered, fragmented and recombined form, and that such survival in an admittedly Hobbesian social competition is preferable to the distorted and blinkered version of group difference we should expect cultural rights to produce” (p.170).

While Ford’s analysis is wide-ranging, well-written, and fascinating, there are several limitations to his argument.  His own assumptions regarding employment discrimination law are disturbing. His reliance on current employment discrimination law as the best means for redressing racism ignores several factors that the “difference” discourse has revealed. One factor is the gap for women of color within the protections of Title VII. To demonstrate racial discrimination, women of color must show that others of their race were treated similarly, but if those similarly-situated are men, the discrimination may not be evident. To demonstrate gender discrimination, women of color must show that others of their gender were treated similarly, but if white women are those who are similarly-situated, such discrimination may not be apparent. Contemporary Title VII jurisprudence frequently does not allow for interactions between race and gender that are unique to women of color. The formal equality required by Title VII is limited in how well it can protect against explicit racism, let alone against the “proxies of race” illustrated by cultural practice.

Another area that requires further development is Ford’s extension of cultural analysis to less comparable areas of employment discrimination law—in particular, sexual preference and gender. His premise that sexual preference should be protected as status, rather than as behavior or culture, ignores the lesser protection granted sexual preference under the law compared to racial discrimination. Ford does not address the unanswered question within the law of whether sexual preference is behavior or immutable characteristic.  The current judicial acceptance of lower levels of scrutiny to protect sexual preference in the workplace means that a simple reliance on current employment discrimination law will not render the results he professes are necessary.

Finally, his equivalence of gender discrimination to race is disappointing, especially in the area of pregnancy. While the right to difference literature [*218] builds on a century of analysis by feminist scholars, there are clear differences between the two. However, Ford perceives pregnancy as a form of gender culture, as braids or language can be for race. But this analogy does not work. Discrimination against pregnancy is not justified by employers solely on the basis of predicted workplace impacts of the actual pregnancy, but also because women have the potential to become pregnant. Since pregnancy is a biological reality, how can it be simply another cultural manifestation or behavior choice?  A second difference is that, unlike forms of racial or ethnic culture, Congress revised Title VII to incorporate pregnancy into the definition of gender discrimination.

Richard T. Ford’s analysis of the limitations of the difference discourse to racial protections is worth reading and considering.  His critique of the “right to difference” literature requires a response from those scholars. This book promises a necessary debate within the legal left as to the best methods for challenging the continued manifestations of racial discrimination within the workplace, simultaneously ensuring a more equitable future.

REFERENCES:

Brown, Michael K., Martin Carnoy, Elliott Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Schultz, and David Wellman. 2003. WHITE-WASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY. Berkley, California: University of California Press.

CASE REFERENCES:

GARCIA v. SPUN STEAK, 998 F. 2d 1480 (1993).

RENEE ROGERS v. AMERICAN AIRLINES, INC., 527 F. SUPP. 229 (1981)

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© Copyright 2005 by the author, Michelle D. Deardorff.