Cultural rights and the immutability requirement in disparate impact doctrine.

• Author: Gonzalez, Roberto J.

INTRODUCTION

International and regional human rights instruments, as well as the domestic law of certain countries, proscribe discrimination on the basis of culture in addition to discrimination based on race, national origin, and religion. (1) The United States, however, has not followed this course. This can be seen by examining the legal status of facially neutral workplace policies that govern the dress, grooming, and language use of employees. Although such policies are often routine and unremarkable, they can become flash points for controversy when they impose burdens that are felt along racial or ethnic lines.

Courts have been largely unreceptive to employees who have challenged these policies as discriminatory under Title VII. For example, in the well-known case of Rogers v. American Airlines, the district court rejected a Black woman's challenge to a policy that prohibited employees from wearing an "all-braided hairstyle." (2) The court assumed as true Rogers's claim that her cornrow hairstyle "has been and continues to be part of the cultural and historical essence of Black American women." (3) Nevertheless, the court concluded that "[a]n all-braided hairstyle is an 'easily changed characteristic,' and, even if socioculturally associated with a particular race or nationality," (4) may be legitimately prohibited by a workplace grooming policy. In a similar line of cases, courts have frequently rejected Title VII challenges to "English-only" policies that prohibit the use of Spanish and other languages in conversations among bilingual employees. (5)

Scholars have reacted voluminously to Rogers and the English-only cases, proposing that "ethnic traits" or "cultural traits" be protected under Title VII through a reinterpretation of the statute or outright amendment. For example, Juan Perea proposes that Title VII be amended to prohibit discrimination "because of [an] individual's race, color, religion, sex, national origin, ancestry, or ethnic traits," (6) where the latter "includes, but is not limited to, language, accent, surname, and ethnic appearance." (7) Perea's is perhaps the most expansive proposal for guaranteeing cultural rights to members of racial and ethnic groups.

In his recent article, Covering, Kenji Yoshino joins this debate by mounting a wide-ranging critique of the failure of U.S. constitutional and statutory law to address compulsory assimilation, which he views as one of the primary forms that discrimination takes today. (8) He traces this failure to the "assimilationist bias" of antidiscrimination law, which puts emphasis on immutability as a prerequisite to protection. Under this "assimilationist bias," discrimination should only be prohibited if it is committed on the basis of a trait that cannot be "helped," that is, a trait that cannot be changed or concealed (e.g., black skin or black "status"). As a result, gays, (9) who are thought to be able to engage in "self-help" by concealing their identities, are denied protection. Similarly, racial minorities and women are left unprotected when they face discrimination on the basis of traits (such as cornrows) that are salient to their identities yet within their power to change. As a solution, Yoshino advocates that these groups make common cause to extend the law's protection to those traits that are constitutive of their identities. This reform would recognize that a demand to discard one's cornrows can be just as injurious as the forms of discrimination currently prohibited by law.

This Note will evaluate the wisdom of cultural rights by using Yoshino's proposal as a case study. It concludes that, in trying to move beyond the assimilationist bias of current law, Yoshino's approach generates a new set of dangers. Yoshino's regime of cultural rights calls upon the courts to engage in the essentialist endeavor of tracing the metes and bounds of a given identity group in order to determine which cultural traits are deserving of legal protection. Even if a court could resolve the conflicting claims over which traits are essential to a group's identity--and even if a court could separate the empowering narratives of identity from those that are repressive--recognizing cultural rights would nonetheless solidify one version of the group's identity over others and bolster the notion that groups have essences. And once the "truth" of each identity group is codified into the law, it would come to subtly shape the lives, both within and outside the group, of those persons the law purported to describe.

In developing this antiessentialist critique, this Note draws on a dissenting thread in antidiscrimination scholarship, epitomized by the work of Janet Halley, that warns of the "boomerang" dynamics by which legal measures designed to improve the lot of an identity group end up subjecting the group--or at least some of its members or those of a different disadvantaged group--to new and perhaps less visible mechanisms of oppression. (10) Richard Ford has offered the most recent, and perhaps most pessimistic, statement of this antiessentialist critique. (11) Sounding a Foucualdian alarm, he emphasizes that cultural rights are double-edged--they both protect and regulate their beneficiaries. In relation to Rogers's claim, for instance, Ford argues that, even if we assume that cornrows have a "positive" political and cultural meaning, recognizing a right to cornrows would constitute "an intervention in a longstanding debate among African Americans about empowerment strategies and norms of identity and identification. It is by no means clear that an argument that presumes that blacks or black women have a cultural essence as blacks or as black women is a vehicle of racial empowerment." (12) Ford recommends that we continue to limit the operation of antidiscrimination law to the domain of purely ascriptive status because adding cultural protections would mire the law in an essentialist quagmire.

There is, however, an alternative to either embracing Yoshino's essentialist proposal or ceding most or all control over the appearance and language use of minority employees to the whims of the market. In developing this alternative, (13) this Note looks to the disparate impact prong of Title VII, which currently affords some protection on the basis of mutable traits. Scholars such as Yoshino may have overlooked the potential of disparate impact doctrine due to an excessive focus on broadening the scope of disparate treatment protection. (14) The Note proposes the elimination of what may be called the "immutability requirement" of disparate impact doctrine, which is the key, though little-understood, culprit in blocking challenges to workplace assimilation. Currently, in order to make out a case under disparate impact, the plaintiff must show that the employer's policy has an adverse effect on her. (15) If there is no adversity, the disparity of the impact is irrelevant. It will be shown that the courts have, without sufficient justification, read an "immutability requirement" into the meaning of adversity, such that a policy that burdens a mutable trait will generally not be considered to have an adverse effect. The elimination of the immutability requirement and the concomitant lowering of the adversity threshold would enable disparate impact law to scrutinize a wider range of policies, including grooming and English-only policies, that disproportionately impact members of protected groups. This more modest approach to the problem of workplace assimilation avoids both the essentialism of Yoshino's proposal and the difficulties it would encounter in fitting cultural-trait discrimination into the rubric of disparate treatment.

The Note proceeds as follows. Part I outlines Yoshino's argument for reforming antidiscrimination law so that it recognizes assimilative demands as illegitimate discrimination. He advocates protecting traits and behaviors that are deemed to be constitutive of particular identities. Special attention will be paid to how Yoshino applies his proposal to the problem of cultural-trait discrimination against racial and ethnic minorities under Title VII. Part II develops a critique of Yoshino's proposal. By treating certain traits as constitutive of certain identities, Yoshino adopts an essentialist model of identity and invites the State to endorse--and thus to reify--particular interpretations of racial, gender, and sexual identities over others. Additionally, by analyzing Yoshino's discussion of Rogers v. American Airlines, this Part will show that Yoshino puts undue emphasis on expanding the scope of disparate treatment. Not only is disparate treatment ill-suited to the demands that Yoshino would make of it, but this emphasis diverts attention from disparate impact doctrine, which is a better vehicle for combating workplace assimilative demands. Part III describes a feature of disparate impact doctrine--the "immutability requirement"--that should be eliminated in order for the doctrine to serve as such a vehicle.

1. YOSHINO'S APPROACH TO COMBATING ASSIMILATION

   In his fascinating article, Covering, Yoshino proposes a rethinking of antidiscrimination law (16) from the vantage point of gay experience. In one sense, Yoshino's goal is to reverse the tendency of gay rights advocates to make "like-race" arguments, that is, arguments that try to fit gay discrimination into the canonical rubric of race discrimination. (17) By putting gay experience at the heart of a "new civil rights paradigm," (18) Yoshino casts gays as the miner's canary of antidiscrimination law: The noxious principles of current law, which fully exclude gays from protection, also function to deny certain protections to racial minorities and women in significant but under-appreciated ways.

   Part I.A summarizes Yoshino's critique of antidiscrimination law and its roots in what he calls the "classical model" of identity. Part I.B discusses Yoshino's proposal for...