restricted access 97 Antidiscrimination Law and Transparency: Barriers to Equality?
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97 Antidiscrimination Law and Transparency: Barriers to Equality? BARBARA J. FLAGG Racial identity is not a central life experience for most white people, because it does not have to be.1 Like members of any socially dominant group, white people have the option to set aside consciousness of the characteristic that defines the dominant class-in this case, race. Thus whiteness is experienced as racelessness, and personal identity is conceived in a race-neutral manner. However, race plays quite a different role in the lives of people of color in this society. It is, again as a consequence of existing social structures that define and give meaning to racial identity, a central facet of life. One black feminist , bell hooks, describes her experience of race: I often begin courses which focus on African-American literature, and sometimes specifically black women writers, with a declaration by Paulo Freire which had a profound liberatory effect on my thinking: "We cannot enter the struggle as objects in order to later become subjects." This statement compels reflection on how the dominated, the oppressed, the exploited make ourselves subject. How do we create an oppositional worldview, a consciousness, an identity, a standpoint that exists not only as that struggle which also opposes dehumanization but as that movement which enables creative, expansive self-actualization? Opposition is not enough. In that vacant space after one has resisted there is still the necessity to become-to make oneself anew. Resistance is that struggle we can most easily grasp. Even the most subjected person has moments of rage and resentment so intense that they respond, they act against. There is an inner uprising that leads to rebellion, however short-lived. It may be only momentary but it takes place. That space within oneself where resistance is possible remains. It is different then to talk about becoming subjects. That process emerges as one comes to understand how structures of domination work in one's own life, as one develops critical thinking and critical consciousness, as one invents new, alternative habits of being, and resists from that marginal space of difference inwardly defined2 Thus, Keisha's employer is simply wrong in thinking that [the firm's] conformity requirement is race-neutral; the standard places quite a different burden on nonwhites than it does on white employees. [See Chapter 15 for Keisha's story. Ed.] Moreover, this difference is not subjective, but structural. The social significance of race-the existence of a racial hierarchy-guarantees that race will intrude on the self-consciousness of nonwhites to an extent that most whites never will experience. Thus the hypothetical white candidate From "FASHIONING ATITLE VII REMEDY FOR TRANSPARENTLY WHITE SUBJECTIVE DECISIONMAKING," 104 YALE 1.J, 2009 (1995). Originally published in the Yale Law journal. Reprinted by permission of The Yale Law Journal Company and Fred B. Rothman & Company. Copyrighted Material 590 Barbara]. Flagg for promotion is unlikely to experience as race dependent the personal attributes called into question by her employer's workplace conformity rule. Even if she does experience these attributes as associated with race, they are not likely to be for that reason central to her self-definition. For Keisha, on the other hand, conformity is excruciatingly difficult precisely because it calls her racial identity into question. Once one sees that race is inevitably implicated in matters of "personal choice," it becomes apparent that the assimilationist interpretation does not truly reflect a conception of race-neutral employment opportunity. Under the assimilationist interpretation, the mandate of equality is satisfied in Keisha's case because she could, in theory, conform to the employer's expectations, even though doing so necessarily would levy costs on her that are inseparably linked to her race. The pluralist conception of equal opportunity embodies a more thoroughgoing notion of race neutrality. This interpretation of equality would not hold the requirements of equal opportunity to be satisfied unless the employer at least explored ways of accommodating diverse, race-dependent means of achieving legitimate business objectives. Thus only the pluralist interpretation of equal opportunity can capture fully the vision of a workplace in which race does not matter-in Title VII's language, a workplace in which the individual is not disadvantaged "because of" race. Of course, Title VII's vision of race neutrality is closely tied to the redistributive objective of improving the relative economic position of blacks and other racial minorities. However , redistribution is not an end in itself; it is desirable because of a history of intentional discrimination...


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