The anti-bottleneck principle in employment discrimination law.

Author:Fishkin, Joseph
Position::III. The Anti-Bottleneck Principle through Conclusion, with footnotes, p. 1470- 1518

    A common thread runs through the arguments that led state legislators to enact all three of these sets of novel employment discrimination statutes. In each case, legislators saw that some variable about a person-- good credit, currently being employed, a clean criminal record--was playing (or might soon play) an outsized role in many employers' hiring decisions, to the point that those without the requisite qualification might face sharply constrained employment opportunities. In each case, there were colorable arguments of varying degrees of plausibility that these variables might be performance-predictive, although in each case legislators were skeptical of those arguments. In each case, legislators judged that there were good policy reasons to activate the machinery of antidiscrimination law to restrict substantially--but not eliminate entirely--employers' discretion to use each of these facts about a person in allocating opportunities.

    Do these reasons add up to a general principle? This Part will argue that they do. The argument up to this point has repeatedly invoked the anti-bottleneck principle but has not really explained it. This Part gives an account of the principle and suggests that we can see it in action not only in legislative enactments, but also in some aspects of the ways courts and the EEOC reason about how best to interpret Title VII.

    This Part thus marks a major turn in the argument, from recent history to theory. The project of this Part is not to reconstruct, as a positive matter, what one or another legislator may have had in mind when enacting any of the new laws discussed in Part I. Rather, the objective here is to build as normatively compelling an account as possible of a general principle--the principle that I call the anti-bottleneck principle--that can explain and justify not only these recent enactments, but also, as the remainder of this Article will argue, much of antidiscrimination law.

    1. The Anti-Bottleneck Principle and the Opportunity Structure

      First, a word about what the anti-bottleneck principle is not. It is not a principle about individual desert. Nor is it a principle about group-based justice. Instead the anti-bottleneck principle is structural: its object is the way a society structures and organizes the many different kinds of opportunities it offers.

      We can visualize the numerous opportunities available in any society as being arranged in an opportunity structure: a lattice of forking and intersecting paths through which individuals pursue different jobs and careers, different goods such as money and prestige, and ultimately, different lives, involving different combinations of forms of human flourishing. The opportunity structure encompasses the world of education and training as well as the world of work; it begins with the developmental opportunities available to children growing up in different environments and extends upward through all the roles in society, including but not limited to jobs, that one might hold as an adult. Individuals must navigate this structure to reach whatever goals they may have.

      In any real society, different parts of this opportunity structure are organized in different ways. Perhaps the only paths to high elective office involve intensely competitive, zero-sum electoral competitions, structured in a pyramidal way. A few exceptionally competitive professional career paths may work similarly. Other paths will not have this shape. For instance, the paths that lead to the role of parent depend on various social norms and legal constraints concerning procreation and adoption; these paths do not generally involve any zero-sum competitions for fixed numbers of scarce opportunities.

      Although there is great variation and complexity within societies, the overall shape of the opportunity structure also varies from one society to another. Indeed the shape of the opportunity structure is a highly consequential, if rarely noticed, fact about any society. Some societies organize more of the paths worth pursuing in a way that involves zero-sum, high-stakes competitions. At one extreme, imagine a society in which a single variable--say, one's score on a standardized test, administered at age eighteen--is completely determinative of one's future life prospects. (143) Unless one scores well on this test, the vast majority of paths in the employment sphere are forever closed. The test in this "big test society" is a very extreme example of a bottleneck: a narrow place through which people must pass in order to reach many opportunities that fan out on the other side.

      There are many questions we might ask about fairness and desert in who passes and who fails the big test. However, the anti-bottleneck principle is not primarily about those questions. Instead, the anti-bottleneck principle draws our attention first to a different, and in some sense prior, structural question: why is the test so "big" in the first place? Why do so many of the paths in this opportunity structure require going through this bottleneck--and must they? Another society might organize opportunities differently: while a few comers of the opportunity structure might turn on a zero-sum test, by and large, a variety of paths lead to most of the valued careers and roles in life, and people can embark on the preliminary steps on those paths at different moments in life. Opportunity structures of this sort are more pluralistic, in the sense that they offer people at different points in life a richer plurality of opportunities they might pursue.

      Societies also vary along a closely related dimension: in all societies, some characteristics such as race, gender, class, physical appearance, or the geography of where one grew up affect which opportunities are open to any given person, for reasons both direct and indirect. These characteristics, then, act as bottlenecks: society is narrowing opportunities by channeling people into particular sets of life paths deemed appropriate for people like them. At the extreme, we might imagine a society that separated people into hereditary "priest" and "warrior" castes, where members of the two castes have separate, non-overlapping sets of opportunities. (144) Caste membership, in that society, amounts to an extremely powerful bottleneck: an absolute prerequisite for pursuing any opportunity is membership in the correct caste. Similarly, in a society where pursuing one set of opportunities requires being a man, and pursuing another set of opportunities requires being a woman, gender is functioning as a powerful bottleneck. One must be the "right" gender--or, in a less extreme case, it helps a lot to be the "right" gender--to pursue many paths. The severity of such bottlenecks is a matter of degree. In a relatively more pluralistic opportunity structure, the bottlenecks are less severe, with the consequence that people will generally have before them a broader plurality of paths they could pursue.

      Most ways of thinking about equal opportunity treat the types of cases in the previous two paragraphs quite differently. The effects of caste or sex on opportunity seem unfair in part because these variables are unchosen demographic facts about a person, whereas a test might instead reflect efforts for which we are responsible. (145) Equalizing opportunity, on most conventional views, is about giving everyone the same chance, regardless of unchosen demographic factors, to take the test. If the test is fair, then those who fail had their fair opportunity. Similarly, those convicted of crimes might be viewed as having failed a certain sort of test society puts to all its members. When we speak of equal opportunity we typically are speaking about a fair first chance for everyone, not a second chance for those who squandered their first.

      And yet, something important is missing from this typical way of framing equal opportunity. To make this illustration as stark as possible, let us imagine that the "big test" is perfectly fair, and furthermore, that those who fail do so entirely because of their own choices not to study hard enough, choices for which (let us suppose) they were entirely responsible. Even in that case, we might ask: is shutting these people out of pursuing any further career opportunities really the best we can do? Is there no normative reason we might want to give people another chance--in the form of a training program, a community college program, an entry-level opportunity in some new field--some path whereby they can find their way out of the dispiriting cul-de-sac in the opportunity structure in which they find themselves stuck?

      Opening up such additional paths makes a society's opportunity structure more pluralistic, in the sense that no single test or other single factor has quite so outsized an effect on a person's prospects. In a more pluralistic opportunity structure, different gatekeepers impose different requirements; the most important gatekeepers offer multiple points of entry. From any position in a more pluralistic opportunity structure, even those positions that seem rather bleak, the first steps along a variety of paths remain open. As the statutes in Part I suggest, this idea applies not only to those who may have lost their job or ruined their credit, but even to those who have committed a felony and served time in prison. The principle here is not about judgments of responsibility or desert. It is a structural principle about the ways opportunities are organized and the paths that lead from one to another.

    2. The Relative Severity of Bottlenecks

      In any real society, even a relatively pluralistic one, some requirements will loom large, across many jobs and other fields of endeavor. This is another way of saying bottlenecks are inevitable. For instance, in most societies, including our own, speaking the dominant language is helpful for almost every job and essential for many. In that sense, speaking English...

To continue reading