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Article Excerpt
Some years ago, for a law review article, I created a character named Keisha Akbar. (1) The article had to do with Title VII; Keisha made her appearance in order to illustrate one pervasive form of employment discrimination. In the end, the article set forth two alternative doctrinal interpretations of Title VII, either of which would provide a legal remedy for the particular form of race discrimination that the fictional Keisha had suffered.
Keisha has reappeared in print a number of times in the past decade, twice in other works of mine, (2) and several times in the works of other scholars. (3) In general, both Keisha and her claim have been treated well in these publications, even when their authors disagree with me on one or another point of Title VII law. Now, however, Keisha's claim has come under a more sustained attack, at the hands of Professor Richard Ford. Initially in several articles, (4) and more recently in a book titled Racial Culture: A Critique, (5) Ford has elaborated a thesis questioning the utility for racial justice of at least one version of multiculturalism.
It seems that for Ford the claim I fashioned for Keisha is an example of a "rights-to-difference" proposal, a particular variety of legal recommendation that is an instance of what he calls a larger "difference discourse." The latter, Ford asserts, "has the potential to stall egalitarian and humanist reforms and deprive us of much of the exciting potential of cosmopolitan society." (6) Under Ford's analysis, Keisha could be harmed more than helped by my Title VII remedy.
I have two somewhat contradictory reactions to Ford's arguments. On the one hand, I regard his presentation of my views as infuriatingly misleading. I don't think there is much fit at all between his account of "rights-to-difference" proponents and my work. On the other hand, I do find many of his observations concerning multiculturalism illuminating. I especially take his point that norms of cultural pluralism may not be the best foundation on which to build remedies for racial subordination. It has prompted me to rethink the normative underpinnings of Keisha's claim.
Hence this essay has two objectives. The first is to respond to Professor Ford, insisting on some points that I think were set forth clearly enough in my Title VII article that they should not have been misread, and clarifying others that I now think might have been presented more intelligibly. The second objective is to purge Keisha's claim of its reliance on a norm of cultural pluralism and see what remains. It turns out, I think, that to whatever extent one sees my "models of Title VII liability" as doctrinal proposals, both emerge from the process of normative reconstruction pretty much unscathed.
The essay proceeds in three parts. In the first I describe the salient points of Professor Ford's critique, (7) and in the second I review my Title VII article. In both of these sections I provide extensive quotations, for reasons that will become apparent. The final section responds to Ford, first by comparing his claims about my work with the work itself as I see it, and then by undertaking the project, for which he has provided the impetus, of normatively refashioning Keisha's claim.
I. PROFESSOR FORD'S CRITIQUE
My overview of Ford's project begins with his own description of his book:
Chapters 1 and 2 describe the set of ideas, policies, and literature I wish to attack and introduce the book's central thesis: Group cultural difference---racial culture--is a social discourse that produces rather than describes preexisting group cultural differences. I argue that the "recognition" of group difference is not an antidote to the forced assimilation of distinctive social groups. Instead the two--recognition of difference and forced assimilation--are both part of a single mechanism of oppression, a whipsaw dynamic that effectively produces and punishes group difference, making assimilation both mandatory and unavailable.... Chapter 2 argues that racial and analogous social identities are never autonomously adopted or intrinsic; they are always, at least in part, the effect of this social regulation.... Chapter 2 suggests that, instead of presumptively protecting the traits associated with groups that have suffered from pervasive social and political oppression (which would reinforce the regulation that produced the identities in the first place), anti-discrimination law should only protect individuals from discrimination based on ascribed group membership or status. I conclude that "cultural difference" conflicts, which concern traits or conduct, are distinct from social struggles concerning racial and other ascribed statuses. In chapter 3 I build on this conclusion and argue that political solidarity based on a common relationship to oppression and domination is the appropriate focus of (racial) identity politics and legal rights assertion; by contrast cultural claims are more contestable on both descriptive and normative terms and should be left to more fluid domains of conflict resolution such as social dialogue, the democratic process and the market economy.... Chapter 4 addresses the limits of civil rights law with respect to cultural pluralism and group identity and suggests a direction for reform of anti-discrimination law consistent with my arguments above. The appropriate goals underlying anti-discrimination law are to counter the social and economic isolation of historically subordinated groups, which is produced by the ascription of stigmatized status. Rights-to-group cultural difference are of questionable legitimacy at best when evaluated in this pragmatic, consequentialist manner. The chapter ends by suggesting approaches to cultural difference and the expression of individual identity that would avoid the pitfalls of difference discourse. (8)
Thus, Ford presents both a positive and a negative program: On the negative side, Ford criticizes proponents of "difference discourse," defined as "a series of claims, proposals and practices" that set forth, or undergird, "a set of moral and legal arguments that promote what [Ford calls] 'rights-to-difference.' These arguments hold that a just society could and should prohibit discrimination on the basis of the [sic] cultural difference (thereby establishing a 'right-to-difference') for the same reasons it should prohibit discrimination based on statuses such as race." (9) On the positive program side, Ford sets forth his preferred vision of multiculturalism and advances his own views on the appropriate contours of antidiscrimination law. In my opinion, the two programs are not equally successful; while Ford makes a number of solid and useful points on the positive side, (10) his "critique" of the proponents of "difference discourse" and "rights-to-difference" is little more than a disappointing caricature.
Ford's discussion of "difference discourse" begins with a quotation from the district court opinion in Rogers v. American Airlines, (11) in which Rene Rogers, an employee of American Airlines, challenged her employer's grooming policy, which prohibited her from wearing her hair in cornrows. The significant portion of the quotation is as follows: "[T]he completely braided hair style, sometimes referred to as corn rows, has been and continues to be part of the cultural and historical essence of Black American women." (12) Ford objects that the plaintiff's reasoning--which was reproduced in the district court opinion--assumes (1) that there is a distinctive Black culture, or Black women's culture and (2) that this culture is unitary. Ford argues that legal enforcement of Rogers' complaint constitutes "an intervention in a long-standing debate among African-Americans about empowerment strategies and norms of identity and identification." (13) Moreover, he says, enforcement of such a right can increase pressure on members of the group in question to conform to the practice that gained legal recognition, provide a disincentive for nonmembers of that group to behave similarly, thus increasing racial disunity, and set precedent for other, even more troubling racial distinctiveness claims. (14)
Unproblematic as Ford's assessment of the Rogers argument may be, it unfortunately becomes a template for his presentation of all proponents of "rights-to-difference." Thus, under the heading "Rights-to-Difference Require an Official Account of Group Difference," Ford contends:
Rights-to-difference claims are presented as a simple matter of freeing individuals and groups from a mainstream cultural hegemony. The conceptual foundation of this claim is that there is a baseline of authentic behavior that members of minority groups would engage in out of unfettered free choice, in the absence of cultural hegemony. (15)
This passage seems to suggest that rights-to-difference proponents must believe in a relatively sharp distinction between mainstream and minority cultures (cultural distinctiveness), and definitely suggests that such proponents must believe in the unitary ("authentic") nature of any given minority culture (cultural essentialism). (16)
Neither suggestion receives further support from Ford. Surely one could adopt a vision of multiculturalism that understands cultural difference as fluid, overlapping, and contingent (as does Ford himself (17)). He fails to support either the descriptive claim that all proponents of cultural rights adopt the more rigid, categorical conception of cultural difference, or the normative claim that any rights-to-difference proposal would require such a conception. Along similar lines, it clearly is possible to conceive of culture as a set of social practices, norms, and ideologies that are internally varied, partially inconsistent, and sometimes contested. (18) Thus, Ford's assertion that all rights-to-difference proponents subscribe to a rigid and categorical understanding of culture--adopting some form of cultural essentialism--either is descriptive of a contingent fact or is a normative claim about the nature of legal rights. Here again he fails to provide any support for either proposition.
Much of Ford's critique of "rights-to-difference" focuses not on proposals grounded in cultural pluralism, but on proposals grounded in conceptions of identity. Ford uniformly conflates notions of difference among cultures with notions of difference based on individual traits that vary along lines of social identity. (19) More precisely, Ford treats as indistinguishable proposals that, in one way or another, prohibit discrimination based on some sort of cultural difference and proposals that, in one way or another, prohibit discrimination based on traits linked in some manner to social identity. (20) Though each might well be brought under a general rubric of "difference discourse," clearly there is a conceptual distinction to be made between culture and individual traits, and it is a distinction that has some significance if one is concerned primarily
about legal rights.
To illustrate the conceptual distinction: I can be a member of the same culture as persons with whom I have almost no shared individual characteristics, and I can share quite a few, even a great number of, individual characteristics with persons who inhabit and are members of wholly different cultures from mine. (21) The payoff of the distinction for rights proponents is this: If one wished to frame a "cultural right" proposal of some kind, one would need some conception of "culture" (though it need not be a categorical notion; it might, for example, be a functional definition), and some conception of membership in a culture. For example, I can imagine trying to frame a right to fish by gill-netting (which is otherwise prohibited) for individual Native people. In order to do so, I would need some account of the relevant culture in order to support a claim that members of that culture should have unique fishing rights, and I would need some way to test cultural membership. In contrast, if one wanted to frame some sort of legal protection for one or more individual traits, one would need to specify the trait(s), but would not necessarily have to say anything at all about the culture or social identity of persons bearing such traits. Of course, many "trait discrimination" proposals are identity-trait proposals; that is, they link the (desired to be) protected traits with some (desired to be) protected social identity. Even in these instances, however, the proponent of such a right would not have to be concerned about the culture of members of the social category in question. Thus, if I wanted to frame some sort of individual right for gay persons, I would need some definition of "gay," which could be framed in terms of some set of traits (if I wanted to theorize "gay" in that way), but even so I wouldn't have to specify, or even know anything about, gay culture.
Ford systematically overlooks this distinction in his own presentation, moving back and forth without pause between considerations having to do with identity-linked traits and considerations having to do with culture. Consider this sentence: "Rights-to-difference are premised on a belief...
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