Discrimination and Equality

• Pages: 17-33
• Author: George A. Rutherglen

17

Chapter 2

DISCRIMINATION AND EQUALITY

Disputes over discrimination are the flip side of disputes over

equality: discrimination identifies what is prohibited; equality is

what should be achieved.

1

The laws against employment

discrimination were passed in order to promote equality, first for

racial and ethnic groups and then for other disfavored groups. Just

as the nature of prohibited discrimination is contested, so is the kind

of equality to be achieved. Many different versions of equality have

been proposed and defended, but they can be organized around the

emphasis that they give to three different perspectives: historical,

economic, and remedial. Speaking very broadly, each of these

perspectives is associated with a moderate, conservative, or liberal

position on employment discrimination law, but with varying

political positions within each perspective and considerable overlap

among them.

The main difference among the perspectives lies in the factors

they deem to be relevant and the questions they consider to be

crucial. The historical perspective focuses on the events surrounding

the enactment of the various civil rights laws, and, in particular, the

precise form of the prohibitions that have been enacted and the evils

to which these prohibitions were addressed. It invit es a comparison

between the issues that arise today and the issues that confronted

the legislatures that enacted the civil rights laws. The crucial

question from this perspective is how a c laim of discrimination

asserted today resembles the kind of discrimination that the

legislature meant to eliminate. In this respect, the historical

perspective confines itself to a narrow version of political history,

emphasizing the official legislative record, made up of the statutory

text and its legislative history, rather than the social move ments,

political coalitions, and intellectual trends that generate the

profound changes in society reflected in the civil rights laws.

If the historical perspective focuses on the immediate past, the

economic perspective focuses on the near future, examining the

consequences of enforcing prohibitions against discrimination. The

crucial question from this perspective is whether the gains from

eliminating discrimination outweigh the costs of legal enforcement,

and in particular, whether a legal prohibition is superior to deterring

discrimination through the competitive pressure of the market. This

1

For an analysis of d iscrimination as a denial of equal respect, see Deborah

Hellman, When Is Discrimination Wrong? (2008).

18

DISCRIMINATION AND EQUALITY

Ch. 2

question can receive different answers depending upon the kind of

discrimination prohibited, the remedies available for enforcement,

the likely reaction of employers, and a multitude of other factors.

From the economic perspective, everything depends upon an

assessment of the cons equences. Nothing depends upo n any

presumption that discrimination is a particularly serious evil that

must be eliminated.

The remedial perspective, however, d oes take a position on this

question and emphasizes the degree to which the consequences of

past discrimination are likely to persist in the absence of broad and

vigorous remedial me asures. This perspective adds to the historical

perspective by going beyond a narrow examination of legal

enactments and engaging in a deeper inquiry into the social

consequences of past discrimination. It adds to the economic

perspective a greater weight attached to the cost of discrimination in

any form. Its focus is upon the continuing vestiges of past

subordination and upon the steps that can be taken to eliminate

them. To paraphrase a famous school desegregation decision, past

discrimination and its effects must be “eliminated root and branch.”

2

Each of these perspectives provides a separate means of

analyzing the laws against employment d iscrimination, but no one

perspective is comp lete in itself. In any fully developed theory of

employment discriminatio n law, components from each perspective

are necessary, with the differences among them mainly a matter of

emphasis. Thus, a typical moderate view does not rely solely on the

history of the civil rights laws and the types of discrimination that

were prevalent immediately before they were enacted. It also mu st

be pluralistic, offering an accoun t of the economic costs and benefits

of preventing future discrimination, as well as an assessment of the

adequacy of existing remedies for the continuing effects of past

discrimination. And conversely, any full y developed theory based on

the economic or remedial perspective must also offer an account of

how the laws against employment discrimination came to be enacted

and the evils to which they were addressed. Only the emphasis

differs from a theory based on one perspective to a theory based on

another, although such differences in emphasis invariably are

significant and often are crucial.

A. The Historical Perspective: Equality as

Exclusion of Race

What is distinctive about the historical view, and the moderate

political position associate d with it, is the decisive weight that it

attaches to the enactment of the laws against emp loyment

2

Green v. County Sch. Bd., 391 U.S. 430, 438 (1968).