Employment discrimination law in perspectve: three concepts of equality.

• Author: Donohue, John J., III
• Position: Visions of Equality: The Future of Title VII

Over the past fifty years, the body of law prohibiting discrimination in employment has grown enormously in terms of the extent of geographic coverage, the range of covered employers, the array of protected workers, and the spectrum of prohibited practices. Beginning in the mid-1940s, states began passing Fair Employment Practices laws that generally prohibited discrimination on the basis of race, color, religion, or national origin. Over the next two decades, the geographic reach of these laws spread as most states outside the South enacted some form of this legislation. With the passage of Title VII of the Civil Rights Act of 1964,(1) the legal prohibition became national in scope and the categories of protected workers were extended to include women. In successive years, more employers came within the regulatory domain of Title VII as the required number of workers in a covered firm dropped from one hundred to fifteen,(2) and in 1972 Congress extended the reach of the law to state and local government and educational institutions.(3) Then, in the mid-1970s, the prohibition against racial discrimination was extended to all employers through the Supreme Court's decision in Runyon v. McCrary,(4) which interpreted the century-old 42 U.S.C. [sections] 1981 as providing a remedy for racial discrimination that was independent of Title VII and therefore not bound by the latter's exemption of small employers.

Prior to 1971, employment discrimination laws had banned only intentional discrimination. But in the first Supreme Court case interpreting Title VII, Griggs v. Duke Power Co.,(5) Chief Justice Burger, writing for a unanimous Court, extended the reach of the law through the novel formulation of the disparate impact doctrine - which prohibited the application of neutral employment practices that generated adverse effects upon the protected classes specified in Title VII, absent a showing that the practices were justified by business necessity. Since then, subsequent decisions and legislative enactments have banned an array of diverse practices - ranging from actuarially based pension plans6 and exclusions of childbirth expenses from employer health insurance plans(7) to sexual harassment(8) - that were not at first seen as discriminatory. In addition, the passage of the Age Discrimination in Employment Act,(9) the Americans with Disabilities Act,(10) and a large array of state and local employment discrimination laws that are more expansive than Title VII(11) has greatly broadened the number of workers falling into some protected category.

One might suppose that the burgeoning corpus of employment discrimination law reflects a consensus that this form of regulation has been working well and should be expanded. But the contentious and protracted struggle among the Supreme Court, Congress, and the Bush administration that culminated in the passage of the Civil Rights Act of 1991,(12) as well as the growing academic debate over the appropriate scope of employment discrimination law, belie this view. There are deep disagreements about whether the country would be best served by a reduction or an intensification of the legal attack on employment discrimination. This essay attempts to provide a conceptual framework with which one can assess both the enormous transformations of employment discrimination law and the continuing disagreements over its proper scope. The thrust of the argument is that the initial creation and subsequent growth of employment discrimination law has been generated by the development over time of a richer conception of the demands of equality, while the antagonism between the contending parties is at least in part explained by differences concerning which version of equality best describes the modem labor market.

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

Over time, three different conceptions of equality have influenced the development of employment discrimination law. Before World War II, the nation's willingness to accept the outcomes generated by competitive labor markets was premised on an implicit conception of equality - namely, that a worker's wage should equal the market-determined value of the individual's labor. I refer to this concept of equality as "contingent equality" because a worker's value often depended on the degree of discrimination against a particular group of workers - and therefore was contingent on attitudes about the worker and not just on his work. As Part II discusses, there is a distinction between the equality one can expect from a competitive labor market and the greater degree of equality that is generated by a more perfectly competitive market such as an efficient capital market. Capital markets ensure that the price of assets will equal their value even in the presence of severe bias or discriminatory attitudes on the part of investors. The capital market equates price not with mere contingent value but with intrinsic value and in this sense guarantees "intrinsic equality." The initial goal of employment discrimination law was to provide intrinsic equality, which the free labor market could not deliver, to the enumerated protected classes. But while a consensus has emerged that intrinsic equality is a desirable goal for protected workers, there is significant disagreement regarding both the extent to which intrinsic equality has already been achieved and the degree to which the goal itself is adequate. A richer notion of equality, which I refer to as "constructed equality," has motivated much of the growth of employment discrimination law in an effort to go beyond the protections that even a perfectly competitive market would afford.

Part III illustrates that the early civil rights movement sought to achieve the equivalent of intrinsic equality for black workers; the goal was to have black workers receive what would be the true value of their labor in a nondiscriminatory environment. Some of the principled opponents of antidiscrimination law in the early 1960s based their opposition on the view that intrinsic equality already existed. Many of the principled opponents of today believe that intrinsic equality has now been achieved and thereby deny the continued need for legal intervention in labor markets to protect female and minority workers. Yet, while the labor market has tendencies pushing in the direction of intrinsic equality, there is likely to be a significant difference between contingent equality - which is all that workers can hope for without government intervention - and intrinsic equality.

Part IV shows that although women, the elderly, and the disabled at first embraced the quest for intrinsic equality, the closer they have come to achieving it the more they have sought to reject it as the goal of employment discrimination law. Law increasingly seeks and requires a higher degree of equality - "constructed equality." Rather than compelling employers to pay protected workers the true value of their productivity by equating wages and intrinsic value, the demand is to have employers make workers equal. Although the market was often an ally - albeit at times an inconsistent one - of the quest for intrinsic equality for protected workers, the market cannot achieve constructed equality. In fact, the market relentlessly opposes it.

1. Who Deserves Special Protection?

   Employment discrimination laws forbid employers from considering various attributes - such as race, sex, religion, or national origin - in making employment decisions. This formal command to disregard particular characteristics of workers is based on the premise that bearers of these characteristics should be treated equally with members of some favored comparison group who lack these traits - perhaps white males under the age of forty. But who deserves special protection? The State of Israel prohibits discrimination on the basis of sex but not on the basis of religion.(13) Do the unique religious tensions that exist in that country argue in favor of or against the exclusion of religion from the list of protected categories? Some state and local jurisdictions in the United States have prohibited discrimination against gays,(14) overweight individuals,(15) and cigarette smokers,(16) while others have rejected these claims. Defining the appropriate characteristics of workers that merit the special solicitude of employment discrimination law is not a simple task. Yet this process of definition is an important one, because every expansion of the categories to be given special consideration carries the risk of diluting the protections afforded to the groups already defined.(17)

   The problem is particularly difficult because numerous factors appear relevant to the determination of protected classes, and in many cases the factors offer conflicting signals. For example, at first glance, it seems relatively unobjectionable that older workers should be given special protection. We help the elderly across roads and we give them special seating on public transportation, so why not give them a little break in the work arena? Perhaps surprisingly, though, the large majority of cases brought under the Age Discrimination in Employment Act - and the cases resulting in the largest awards by far of all employment discrimination suits - are brought by white, male professionals and managers.(18) This is not a class of individuals that one normally would consider to be in need of special legal protections.

   Even groups with seemingly unassailable claims for privileged treatment can possess characteristics that at...