Anti-Discrimination Law.

Vol. 14 No. 9 (September 2004), pp.751-753

ANTI-DISCRIMINATION LAW, by Christopher McCrudden (ed). Burlington, VT: Ashgate Publishing Co., 2004. 632pp. Hardcover. $225.00 / £125.00. ISBN: 0754620115.

Reviewed by Lawrence E. Rothstein, Department of Political Science, University of Rhode Island. Email: ler@uri.edu

It is always nice to have a collection of seminal essays in one volume. In 1991 the International Library of Essays in Law and Legal Theory produced just such a volume on anti-discrimination law, including classic articles by Brest, Fiss, Freeman, Delgado, Becker and Posner. The volume under review is a follow-up on that first volume reflecting what the editor terms “an explosion of theoretically inclined writing about anti-discrimination law” (p.xi). Unfortunately, this second series of essays does not pack the punch of the first. As with the first series, these are all articles that have appeared elsewhere. The essays included, while interesting and reflecting more diverse perspectives than the first set, are commentaries on or responses to criticisms of more seminal post-1990 pieces. The volume purports to represent the geographical diversity and the expansion of types of discrimination discussed (e.g. age, disability, sexual orientation) that characterizes post-1990 writings. While the articles do mention the law of jurisdictions other than the U.S., Canada is the only one treated with some detail. Racial and gender discrimination remain the main topics of discussion.

The law with which the volume is concerned is primarily employment discrimination law. The essays are divided into four major themes. The first theme is “libertarian critics of anti-discrimination law.” Larry Alexander’s essay, keynoting this section, is a detailed dissection of forms and motivations for discrimination and some consideration of the moral wrongness, if any, of these forms. Unfortunately, there are many distinctions without a difference. Alexander’s point is to show that very few types of discrimination are so morally wrong as to justify curtailing through law the preferences of employers or the efficient operation of the market. He takes particular aim at disparate impact analysis and affirmative action. His conclusion is that discriminatory preferences for or against certain people are morally wrong if premised on erroneous moral judgments about those unpreferred, but should only be addressed by law if the costs of legal prohibition and enforcement are low with respect to the imputed gains for society (p.73).

The second essay in this section is Richard Epstein’s defense against attacks in other publications of his preference for market forces developed in FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS. This treatment is confusing unless one has already familiarized oneself with Epstein’s book and the critics’ arguments. Epstein, like Alexander, trades on an assumed moral superiority [*752] of market transactions over government interventions. Both raise, but do not further, the issue of empirical evidence for the effects of the market or government policies on discrimination or the relationship between the “free” market and government policies that support it. This lack of empirical analysis of the actual social costs and benefits of Title VII is brought out by John Donohue’s closing contribution to this section which was originally a review of Epstein’s book.

The articles in the second section address the theoretical proposition that the underlying meaning of discrimination is an attack on the human dignity of the person disfavored. Rosa Ehrenreich takes the position “that workplace harassment, sexual or nonsexual, is fundamentally a dignitary harm” (p.167). Confusing this nature of the harm with the context, the pervasive discrimination against women, makes problematic acts against women in the workplace that are not clearly sexual in nature, same sex harassment and the harassment of men by women. It also stunts the legal recognition of other kinds of attacks on human dignity in the workplace. She argues that common-law tort actions addressing dignitary harm such as assault and battery and intentional infliction of emotional distress may be a better way of attacking workplace harassment and abuse of power than Title VII, leaving Title VII actions for the classic cases of discrimination.

Vicki Schultz, from a feminist position, takes issue with the notion that sexual harassment is primarily an attack on human dignity. She argues that it is most often a tactic for securing important distributional goods for a particular individual as a member of a socially dominant group. Therefore, it is of a piece with other forms of discrimination designed to favor the power of an advantaged group. The sexual aspects of the harassment itself are incidental. Denise Reaume, analyzing jurisprudence under the Charter of Rights and Freedoms, argues that the Canadian Supreme Court has taken seriously the injunction to consider substantive equality. To do so effectively, however, the Court must develop a theory of what areas must be equalized and whose disadvantages must be compensated for. Not everyone can or should be equal in every facet of their lives. Which inequalities are a detriment to human dignity is the consideration that must underlie substantive equality. Unfavorable treatment based on prejudice or stereotypes or that result in limiting access to goods or benefits that are necessary for full participation in social life are all attacks on human dignity. Redressing these attacks requires considering disparate impact and accommodative responses.

In the third section, the essays delve more deeply into the role of anti-discrimination law in redistributing social and economic benefits and burdens. David Strauss opts for emphasizing the disparate impact approach to employment discrimination litigation as most appropriate under contemporary conditions for achieving the main policy objectives of Title VII, inducing employers to hire, promote and adequately compensate minority employees. Cass Sunstein suggests that anti-discrimination law should be based on an anti-caste principle—i.e., attacking and remedying social policies that turn [*753] “highly visible but morally irrelevant differences into a basis for second-class citizenship” (p.386). His emphasis is on legislative rather than judicial remedies and seems willing to let market forces work more freely than does Strauss. Christine Jolls points up the similarity between disparate impact principles and accommodation principles. She maintains that if Congress has the power to mandate disparate impact analysis under Title VII, it clearly has the power to make accommodation a policy to remedy race- and sex-based employment discrimination. After a thorough-going analysis of comparable worth pay decisions in Canada, Judy Fudge acknowledges that highly publicized legal victories for some groups of women have not done much to advance generally the cause of pay equity. Neo-classical free market notions held by judges and employers, a declining economy and stereotypical notions of women’s work in and out of the home have limited a more widespread attack on the wage gap.

The final section elaborates on the focus of anti-discrimination law on group identity. Kimberle Crenshaw notes stereotypes that underlie anti-discrimination law have made it difficult to attack discrimination that results from the intersection of disadvantaged statuses. Thus, black women have had a problem asserting and proving disparate impact claims where all women or all blacks have not suffered the same statistical impact. For Sujit Choudhry a Rawlsian theory of distributive justice reconciles anti-discrimination law’s use of definitions of group identity with a system to redress injuries to individuals. Using the shock value of a proposed Santa Cruz ordinance prohibiting employers from discriminating on the basis of “personal appearance,” Robert Post attempts to show that efforts to promote “looks-blindness” or “color-blindness” can frustrate the true purpose of anti-discrimination law. A sociological approach would recognize the reality of group definitions and stereotypes and promote policies that consciously redress the disadvantages of these groups in the employment market.

Many of these essays provide rewarding analyses and informative footnotes, but at a very high price.

REFERENCES:

Epstein, Richard. 1992. FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS. Cambridge: Harvard University Press.

McCrudden, Christopher. 1991. ANTI-DISCRIMINATION LAW. Aldershot: Ashgate.

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