Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [77]
Those who see slips in every slope will point out that such reason-forcing conversations will tax the courts by involving them in endless disputes about identity. Here I find myself thinking of a rebuttal Justice Brennan made to the Court in the death penalty context. In 1987, the Court declined to consider statistical studies showing racial disparities in the administration of the death penalty, saying the use of such studies would lead to challenges to all dimensions of criminal sentencing. Brennan dryly observed that this slippery slope argument seemed “to suggest a fear of too much justice.” That phrase revealed the perversity of making the magnitude of a social injustice a reason for letting it stand. In the context of antidiscrimination law, the “too many reason-forcing conversations” concern is a “too much justice” argument.
I know the sky will not fall if the accommodation model of antidiscrimination law is adopted, because the heavens still hang (however wanly) over England. Based in part on our Civil Rights Act of 1964, the British Race Relations Act requires employers to justify employment practices that disproportionately burden a racial group. Under the 1976 version of the act, a plaintiff could prove he was burdened only if he could not comply with the employment practice. This “cannot comply” language could have functioned as an immutability requirement, but the House of Lords interpreted it differently. In a 1983 case, the court found that Sikhs (whom it construed to be a racial group) could not comply with an employer’s no-turban requirement. As Lord Fraser stated, “can comply” did not mean the person could conform “physically,” but rather that he could conform “consistently with the customs and cultural conditions of the racial group.” Finding the plaintiff could not comply in this sense, the court struck down the no-turban requirement. (Note the contrast with the cornrows case in the United States, in which Renee Rogers’s physical capacity to conform resulted in a reflexive ruling for American Airlines.) In 2003, amendments to the Race Relations Act dispensed with the “cannot comply” language altogether, inviting even broader protections for race-related cultural attributes.
The House of Lords similarly construed the Sex Discrimination Act of 1975. In 1978, women challenged an employer’s age limit of twenty-eight for promotions to executive-officer grade, arguing that women were less likely to meet this requirement because of work interruptions due to child-care responsibilities. The employer stated the age limit was permissible because women could choose to forgo having or caring for children. The court rejected this argument, finding that “it should not be said that a person ‘can’ do something merely because it is theoretically possible for him to do so: it is necessary to see whether he can do so in practice.”
These cases correctly look beyond the physical body to the body politic, focusing not on people’s capacity to assimilate, but on the legitimacy of the social demands made on them. They impel courts to look at difference in life as it is lived. American antidiscrimination law, in contrast, too often conflates equality with studious nonperception of difference. As the rhetorics of “color blindness” or “Don’t ask, don’t tell” indicate, the law’s dominant reaction to difference has been to instruct the mainstream to ignore it and the outsider group to mute it.
Of course, the concepts of justice and blindness have long been intertwined. Since classical times, Justice has been blindfolded to show her imperviousness to fear or favor. Until