Wednesday, August 06, 2008

Symmetry in Anti-Discrimination Law

I have a column appearing later today on FindLaw. The topic is the recent decision by the D.C. Circuit holding that sex is a major life activity for purposes of the Rehabilitation Act. Briefly, a breast cancer survivor sued the State Department under the Rehabilitation Act, which prohibits discrimination on the basis of disability, for revoking her acceptance into the Foreign Service when it learned about her cancer. To survive a motion for summary judgment in a Rehabilitation Act case, a plaintiff has to allege discrimination on the basis of a disability, and a disability requires an impairment that significantly limits a major life activity. In the case of the plaintiff’s cancer, because it was cured already, her major life activity that suffered as a result of treatment was her sex life, and the D.C. Circuit affirmed that her allegations do trigger the application of the statute.

My column discusses the oddity of having to prove not only that you have suffered from discrimination but that you have suffered from your impairment as well. Such a requirement seems to compel a plaintiff to cast herself in the role of a disability victim. I contrast the disability law, in this regard, with other kinds of antidiscrimination law that permit anyone to bring a suit, regardless of whether or not he or she falls into the class of people already disadvantaged by virtue of their sex, race, etc. In this post, I want to focus on the implicit assumption that the antidiscrimination laws should primarily protect the people who are disadvantaged by virtue of their membership a particular class (disabled persons, African-Americans, women, etc.).

One could argue that what is truly objectionable about discrimination is the drawing of irrational distinctions between people of different races, sexes, or ability. On this theory, it is just as bad for an employer to discriminate against a white person because he is white as it is for an employer to discriminate against a black person because he is black. If one takes such a view, then the problem is racial discrimination or sex discrimination rather than victimizing individuals from a disfavored group.

On behalf of this theory (which I ultimately find unconvincing), one could make two arguments, the first instrumental and the second theoretical. The instrumental argument is that as long as people discriminate on the basis of race, it will be the disadvantaged group (women, African-Americans) who suffer, even if it appears otherwise. When men, for example, are excluded from nursing school (as they were from the Mississippi University School of Nursing), the true victims are women as a group, whose stereotypical role (embodied by the work of a nurse) is affirmed and reinforced. The decision in Mississippi v. Hogan, on this reading, was a victory not only for the man who wanted to become a nurse but for women who want to break out of the feminine role that primarily harms women.

The theoretical argument for a race-neutral or sex-neutral approach to discrimination is that the harm is segregation, which hurts everyone. As long as people are treated differently on account of sex or race, this argument goes, it further entrenches the separation of the sexes and the races and the allocation of distinct lives to the different groups. Every individual is entitled to be treated as an individual, and discrimination of any sort and in whatever direction disrupts that entitlement.

The instrumental theory is persuasive as long as the people complaining of discrimination are attempting to break out of traditional role allocations (like the male nurse). When so-called “reverse discrimination” is aimed at leveling the playing field, however, this theory becomes less compelling. If there are very few women stockbrokers, for example, then a decision to hire a highly qualified female stockbroker rather than a somewhat better credentialed male applicant (rather than using a sex-blind process) does not entrench sex inequality but instead attempts to dismantle it. One can dispute the efficacy of such measures, and many people have, but their benign objective places them in a different category from policies excluding men from nursing school. An outstanding high school that excludes all African-Americans, in other words, is a very different entity from an outstanding high school that only admits African-Americans.

The theoretical argument – that the harm is segregation rather than discrimination – strikes me as unconvincing as well. Segregation is toxic (or as toxic as it is) because of the history and purpose behind such segregation. If an employer separated people into categories based on whether their belly buttons are “innies” or “outies,” this separation would be weird and perhaps offensive but would not likely find itself replicated in the employees’ other spheres of life (or even other jobs). This discrimination or segregation would be random and could therefore more easily be forgotten. Race and sex discrimination, by contrast, carry a history of de jure and de facto persecution and violence aimed not in both directions but in one – against African-Americans and against women. A child growing up black and/or female would see his or her world constrained by race and sex in a way that white males would not. When the law began to prohibit discrimination on the basis of these categories, the identity of the groups of beneficiaries of past discrimination was no mystery to anyone.

There might still be good reasons to create neutral anti-discrimination laws (like Title VII), which do not distinguish between plaintiffs from advantaged versus disadvantaged groups. I discuss some of these reasons in my column. It is worth remembering, however, that whether or not our law draws (or should draw) such distinctions between “advantaged” and “disadvantaged” victims of discrimination, the distinctions nonetheless remain real.

Posted by Sherry Colb

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