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Library of Congress Cataloging-in-Publication Data
Names: Kramer, Zachary, author.
Title: Outsiders : why difference is the future of civil rights / Zachary Kramer.
Description: New York, NY : Oxford University Press, [2019]
Identifiers: LCCN 2018019004 (print) | LCCN 2018032206 (ebook) | ISBN 9780190682750 (Universal PDF) | ISBN 9780190682767 (E-pub) | ISBN 9780190682743 (hardcover : alk. paper)
Subjects: LCSH: Civil rights. | Equality.
Classification: LCC JC571 (ebook) | LCC JC571 .K655 2019 (print) | DDC 323—dc23 LC record available at https://lccn.loc.gov/2018019004
9 8 7 6 5 4 3 2 1
Printed by LSC Communications, United States of America
For Rhiannon
Acknowledgments ix
Introduction 1
PART ONE Identity
1. Discrimination, Old and New 11
2. Unlocking Identity 37
3. Boxes 63
PART TWO Equality
4. Visions of Equality 89
5. Accommodations 111
6. Equality Derby 135
PART THREE The Future
7. Accommodating Difference 161
Conclusion 185
Notes 189
Index 213
ACKNOWLEDGMENTS
This work wouldn’t have been possible without the help, in various forms, of wonderful friends, colleagues, and kind strangers: Kelli Alces, Daphne Atkinson, Cecelia Cancellaro, Brenda Cornelius, Beth DeFelice, David Gay, Debbie Gershenowitz, Betsy Grey, Zack Gubler, Craig B. Haircuth, Carissa Hessick, Andy Hessick, Jeff Kahn, Sherry Kramer, Stuart Kramer, Rhett Larson, Willy Lumpkin, Kaipo Matsumura, Marcia McCormick, Tara Mospan, Jeff Murphy, Mary Sigler, Judy Stinson, Doug Sylvester, Anders Walker, Adam Winkler, and Anonymous Reviewers (1, 2, and 3).
Professors and conference participants at Florida State University, St. Louis University, Savannah Law School, Tulane Law, the University of Denver, and Wayne State University gave me wonderful feedback. Many thanks to Dave McBride, Holly Mitchell, Katie Weaver, Suganya Elango, Kate Roche, and everyone else at Oxford University Press who helped make this book a reality. Izaak and Gittel never once complained when I chose to write instead of hang out with them. Izaak, in particular, let me write about his life. I am forever thankful for that gift. And Rhiannon
is the best person I know. Hopefully we won’t have to talk about this book anymore.
My colleague Mary Sigler supported this project from the start. She was an early reader, a sharp critic, and the dearest of friends. I miss her terribly. May her memory be a blessing.
INTRODUCTION
My son has always had a keen sense of justice. His first test subjects were our family’s many pets. Why does the one cat get to go outside but not the other? How come you greet the dog when you get home but not the cats? Why are the birds in a cage? His ideas about equality sharpened with time, as he became aware of the injustices that occurred beyond the walls of our house. He was especially inspired by his school’s lesson on Dr. Martin Luther King, Jr., part of the school’s pervasive campaign to stop bullying. Deeply affected by the idea of civil rights, he wrote a song about racial equality:
Black is black White is white, Let’s all work together. [Chorus] ‘Cuz we’re all the same on the inside.
He sang the song often, each time with a different melody. Yet he never wavered from the central idea. People deserve to be treated equally because we are all, fundamentally, the same.
The song—which we have taken to calling the “Work Together” song—nicely illustrates the principle that lies at the heart of American civil rights law. Identity traits like race and sex are culturally significant but shouldn’t be. At its most basic level, the goal of civil rights law is to undo deep patterns in the way people relate to one another. Although we tend to categorize people on the basis of salient identity traits—race, sex, disability, and age, among others—civil rights law spurns superficiality. It seeks to break down artificial barriers that divide people into different groups. Like the “Work Together” song, civil rights law envisions a society in which difference doesn’t matter.
But difference does matter, significantly so. Each and every one of us is different in some way. The closet is no longer a metaphor reserved for gay people. Each of us has a part of our identity that, if revealed, would mark us as outsiders. Some of these closeted identities may seem trivial—not liking HBO’s The Wire, rooting for the Chicago Cubs, preferring chain restaurants to fine dining. Other identities are more fundamental—being poor, having a disability, practicing a fringe religion. Whether immutable or fleeting, deeply held or fickle, these differences define who we are and how we relate to the world around us. Being different is universal. We are all outsiders.
The work of civil rights used to be about integrating marginalized groups into civic life, about breaking down barriers and shattering ceilings. Yet the landscape looks very different today. Inclusion is no longer the only problem. A mounting challenge facing civil rights today is accommodating difference. The new targets of discrimination are those who stand out among their peers. They face discrimination not because they belong to some
disfavored group, but because they do not or cannot fit in. They are the freaks, the geeks, the weirdos, and the oddballs among us. They do strange things, say strange things, wear strange things, have strange opinions, and need strange accommodations.
Outsiders offers a new way to think about identity, equality, and discrimination. It argues for a civil rights for everyone.
Melanie Strandberg wanted to do something to show support for her sister. Both had survived cancer once before, but her sister’s had returned. As a sign of solidarity, Strandberg shaved her head. “They told her chemo, and I found my clippers,” she said.1 Unfortunately, Strandberg ended up sacrificing more than her hair. She also lost her job.
Strandberg worked as a stylist in a salon located inside a casino, in a small town outside Spokane, Washington. After she shaved her head, her boss requested that she wear a wig to work. According to Strandberg, the boss gave two reasons why she needed to cover her bald head: You can’t market hair products if you don’t have hair, and customers might not be comfortable being around a bald woman. Strandberg responded by quitting.
In her resignation letter, which she posted on Facebook, Strandberg wrote, “I consider myself, my sister, and every bald woman out there to be strong and beautiful!”2 She added, “I will not wear a wig to work and I will not hide my support for the so many battling this illness in the community and all over the world.”3 Supporting her sister was not just important to Strandberg; it defined her, was something that made her, her. As she explained in her letter, “I decided that I can’t just support her fifty percent of the time. That’s not why I did it.”4
The perfect place to start, Melanie Strandberg’s story highlights the promise and pitfalls of civil rights law. As the moral compass of American law, civil rights law has the highest of ambitions. In its quest to weed out injustice and right wrongs, civil rights law strives to make real change in how we order our society, to create harmony in an increasingly diverse and, at times, divisive community. Melanie Strandberg took a stand on behalf of her sister and cancer patients everywhere. This is the stuff that civil rights are made of.
Yet civil rights law is a blunt tool for making change. Despite its lofty aspirations, civil rights law is a remarkably narrow enterprise. Only a handful of traits get protected status, and baldness certainly isn’t one of them. Melanie Strandberg’s story is a stark reminder that most discrimination exists beyond the reach of the law.
What if the law could do more? What if it could reach a wider universe of discrimination? The goal of this book is to argue for a more inclusive vision of civil rights, one that focuses not on the usual subject of civil rights—stigmatized groups—but on individual experiences of discrimination. There is no denying that discrimination persists as a social problem. But it persists in a manner that is vastly different than it used to be. When Congress passed the Civil Rights Act of 1964, it could not foresee that the Melanie Strandbergs of the world would one day face discrimination. It could not predict what diversity would look like over half a century later.
Ours is an age of individuality, a time when diversity runs deeper and is more widespread than ever before. However fractured our society may seem at times, difference is the common
denominator, the thing that cuts across groups and connects us as people. In his wonderful book Far from the Tree, Andrew Solomon explains difference as a unifying force. “Difference unites us,” he writes. “The exceptional is ubiquitous; to be entirely typical is the rare and lonely state.”5 Modern discrimination is the product of a complex web of cultural norms, stereotypes, and unconscious biases. Together, these forces make discrimination messier and more individualized than ever before. Accordingly, the work of civil rights needs to be about the universal experience of being different. We need a right to personality.
Imagine a civil rights regime that seeks to carve out space for people to be themselves fully, a regime that values expressions of individuality as central to the human experience. Imagine that the law recognizes a right to shave your head; a right to be fat; a right to be open about your same-sex partner; a right to wear your hair in braids; a right to transition from one sex to another; a right to have tattoos; a right to speak a language other than English. These examples are drawn from real cases, all of which point to a common problem: Civil rights law is stuck in the past. Time and time again, discrimination claimants find themselves shut out of a legal system that still views the group as the focal point of discrimination. The future of civil rights must be about individuals, and a right to personality is the vehicle to make this happen.
If a right to personality sounds too utopian, consider that one branch of antidiscrimination law already works this way. Religious discrimination law is an outlier within civil rights jurisprudence. Unlike other areas of the law—such as race or sex
discrimination—religious discrimination law strives to protect people in their capacity as individuals. There is no list of preferred religions, no set of required practices. Each person determines the substance of her own religious practice, and courts by and large defer to a person’s choice. For a belief or practice to count as a religion, all a claimant needs to show is that the belief or practice is religious in her own scheme of things and that it is sincerely held. The result is a body of law that accepts a vast universe of religious practices, each as distinctive as the next. A hospital employee refused to get a flu shot because he is vegan (the flu shot is incubated in eggs). The court concluded that this was a religious belief.6 A cashier at Costco wanted to wear face piercings in violation of the company’s ban on facial jewelry. Religious.7 A public school principal decided to homeschool his children so their classes would reflect “an aspect of God as the creator.”
Religious.8 A police officer refused to take assignment guarding an abortion clinic. Religious.9 A saleswoman at Abercrombie & Fitch wants to wear long skirts rather than short skirts and longsleeve shirts rather than low-cut shirts that show her cleavage.
Religious.10
Even more importantly, religious discrimination law does not define discrimination in the conventional manner. The hallmark of civil rights law is the idea that like people must be treated in a like manner. Religious discrimination law, by contrast, mandates differential treatment; it says that, if possible, a person’s religion needs to be accommodated. Say an employee can’t work on the Sabbath. The employer must at least try to rework the schedule to accommodate the employee’s religious practice. This may not be possible. It may be too difficult to get other workers to change
their schedules. Or maybe the employee requesting the accommodation is the only one who can do the job. The outcome of a given case matters less than the process that gets us there. For accommodation to work, people need to interact with one another, to discuss their needs and expectations, to find common ground.
I’m envisioning a grand conversation. Law will initiate little conversations, and little conversations beget big conversations. Real change can only come about if we engage each other, if we challenge each other to be true to ourselves and accept each other despite our differences. Civil rights law is at its most effective when it is accompanied by strong social norms favoring equality. Brown v. Board of Education could not, and did not, dismantle segregation all by itself. Law is a tool of change; it can only take us so far. In the end, it is up to us to work together to find common ground. To that end, this book seeks to reengineer civil rights law to facilitate difficult conversations about who we are and how we treat each other.
Discrimination, Old and New
The firm had made its decision.1 Ann Hopkins would not become a partner. At least for now, as the partners had put Hopkins’s partnership application on hold until next year. The fact that it wasn’t an outright rejection was cold comfort. Ann Hopkins was mad, and with good reason.
Hopkins was a strong candidate. During her five years with Price Waterhouse—the professional services firm that would later become PricewaterhouseCoopers—Hopkins had been a standout in the firm’s Washington, D.C., office. She was decisive and effective. She was tough. She was emerging as a leader. In support of her candidacy, the partners in D.C. released a joint statement praising Hopkins. They described her as “an outstanding professional.” They hailed her “strong character, independence and integrity,” and they noted that she had a “deft touch.” Of particular importance was Hopkins’s two-year effort to secure a $25-million contract with the Department of State. An “outstanding performance,” the partners called it, which Hopkins performed “virtually at the partner level.”
If the partnership decision turned on work product exclusively, Hopkins would have been an easy case. But partnership decisions are holistic. Making partner is as much about personality as it is about results, and the partners had some concerns about Hopkins’s personality. She was curt with the support staff. She rubbed people the wrong way. She cursed. This wasn’t some excuse ginned up to thwart her candidacy. Earlier in her career, partners advised Hopkins that she needed to improve her interpersonal skills, particularly with respect to her interactions with the support staff. She had improved, but not enough.
To gather information on candidates, the firm invited all the partners in the firm to submit written evaluations of the candidates. Hopkins’s evaluations were revealing, to say the least. Partners described Hopkins as “universally disliked,” “consistently annoying and irritating,” and “macho.” One said that she “overcompensated for being a woman.” Another advised her to take “a course at charm school.” One of her supporters wrote that “Hopkins matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” Some of these partners interacted with Hopkins more than others. Some of them had no direct contact with her whatsoever.
Thomas Beyer had spent a lot of time with Hopkins, perhaps the most of any partner at the firm. As her mentor, Beyer shepherded Hopkins though the partnership process. He was a trusted advisor. The two were close, friends as much as colleagues. When she learned of the firm’s decision, Hopkins sought Beyer’s counsel. He was candid: If she wanted to make partner in the future, she should walk, talk, and dress more femininely, wear
make-up and jewelry, and style her hair. She should, in short, be more ladylike.
At the time, Price Waterhouse had 662 partners worldwide. Just seven of them were women. There were eighty-eight candidates up for partner that year. Hopkins was the only woman.
In 1991, the Department of Labor established the Federal Glass Ceiling Commission. Comprised of prominent leaders in government and the private sector, the Commission was tasked with making proposals to break down arbitrary barriers that prevent women and minorities from ascending to the upper ranks of corporate life. The culmination of the Commission’s work was a 1995 report, “A Solid Investment: Making Full Use of the Nation’s Human Capital.”2 The report opens by declaring that the glass ceiling “betrays America’s most cherished principles.” “The American dream is about opportunities for all,” the report continues. “Yet the glass ceiling denies millions of Americans opportunities for economic and personal advancement.” The report argues that the glass ceiling is not only discriminatory in operation, but it is bad for business. It proposes a number of recommendations, including more expansive affirmative action and diversity training programs, leading by example, and strengthening antidiscrimination laws. Whatever the method, the goal is the same: “achieving the full promise of our society by making its bounty available to all.”
There are two ways of reading Ann Hopkins’s story, and the first is in terms of the glass ceiling. Hopkins applied for partnership at Price Waterhouse in 1982, almost a decade before the Glass Ceiling Commission was created and thirteen years before it issued its findings. At the time, only seven women had scaled the firm’s partnership structure, a mere one percent of the
firm’s total partnership. This alone suggests that Hopkins was not playing on a level field. But the story comes into even sharper focus when you add that Hopkins was the only female in a pool eighty-eight candidates deep. Men would make the decisions, and the decisions were mostly about men. Looking back, the problem seems obvious. The absence of women in the process is conspicuous, strongly suggesting that discrimination was afoot. But back in the early 1980s, this was not an uncommon picture. The whole idea behind the glass ceiling metaphor is that, to achieve equality, women would have to change the landscape. The glass ceiling would crack before it would shatter, and Ann Hopkins was determined to be an important first crack.
On this reading, what is Ann Hopkins’s vision of equality? How was she harmed by the firm’s decision? In the most immediate sense, Hopkins did not advance at work. Making partner is a big deal. It carries with it prestige and, in most cases, the prospect of transforming a person’s financial circumstances. There is no question that being denied access to partnership is a tangible harm. But glass ceilings demand a more robust vision of equality. Sure, Ann Hopkins was injured by the firm’s decision, but its real victims were women. The firm’s decision sent the message that women were not welcome in leadership roles. In doing so, the firm fortified the glass ceiling. Ann Hopkins represented all ambitious women trying to climb the corporate ladder.
In this regard, Ann Hopkins’s case is a textbook example of old discrimination. Old discrimination has two defining features. The first is that it involves issues of integration. Stories about old discrimination always go the same way: A group of people is being excluded from some benefit of public life. The remedy for exclusion is integration, and this is exactly what civil rights law
seeks to do in cases of old discrimination: integrate the group, break down the barrier, and shatter the ceiling.
Note that the group is the focal point of old discrimination. The second feature of old discrimination is that it is only skindeep. Group membership is the only thing that matters. A person becomes a victim of discrimination simply by virtue of having the disfavored trait in question.
A prominent case from the mid-1970s helps to illuminate the dynamics of old discrimination.3 The Water and Power Department for the City of Los Angeles administered a pension fund for its employees. The Department funded the program, in part, through employee contributions. In practice this meant that the Department withheld employees’ contributions directly from their paychecks. The problem was that the Department withheld more money from women’s paychecks than it did from men’s paychecks. The reason for this disparity was simple: Women tend to live longer than men. If they’re going to live longer than men, women will need more money, so the company had its female employees pay larger sums into the system.
The discrimination revealed itself in wages. Because women had to make larger contributions to the system than men, women took home less pay than men, to the tune of almost fifteen percent. The discrimination was formal in nature, targeting women as a group. It didn’t matter if a particular woman died earlier than expected. The Department didn’t assess an employee’s risk factors. It didn’t require medical certification before withholding contributions. The only thing that mattered was the employee’s sex. If you were female, you had to make the extra contributions, plain and simple.
