Distinction or Discrimination?

When I was a senior in high school, I wrote a submission for the Ohio Bar Association’s There Ought to Be a Law Contest (nerd, guilty as charged).  I advocated civil unions for same-sex couples.  I presented the essay at a conference organized by my school, only to have a student visiting from another school ask me if I was “the gay,” as he put it, and then suggest to me that gay people were not as deserving of equal rights as African Americans.  His teacher soon chimed in to spin his comment: What he was really saying was that gay people needed to work hard for their rights without help from allies, the same way that African Americans had.

That was 2002. In hindsight, my position was discriminatory (a civil unions law is not full marriage equality), that of the other student was bigoted, and the teacher’s was inaccurate revisionist history.  And I’d bet that they’d agree.  So what explains the remarkable change in attitudes over the last twelve years?  I’ll get there.

Eleven years after the essay contest, I found myself taking constitutional law. My professor began the line of cases on gay rights with Justice Douglas’s dissent in the 1967 case of Boutilier v. INS.  The case is hardly an upper.  Justice Douglas explains his understanding that “[t]he homosexual is one, who by some freak, is the product of an arrested development.”  This was, my professor observed, the Supreme Court’s most liberal justice.  So why begin here?  Because, the professor explained, constitutional protections often turn on social meaning.  Social meaning helps us tell distinction from discrimination.  And the fact that our law once recognized a distinction does not mean that, at some later point, the same distinction is not, in fact, discrimination.

That marriage inequality has passed from distinction to discrimination now appears obvious.  And it looked like equal rights were on-the-march until last Thursday.  That day, the Sixth Circuit issued its decision in DeBoer v. Snyder upholding bans on marriage equality in my home state of Ohio, as well as in Michigan, Kentucky, and Tennessee.  Writing for the two-judge majority, Judge Jeffrey Sutton sought to cast his decision as one of fidelity to the role of the judiciary: staying out of the way of a popular majority that still—at least according to him—opposes marriage equality.

History will not look kindly on Judge Sutton’s decision.  But almost as troubling as the Court’s decision were its assumptions about equality.  And these may be more insidious and ultimately damaging for workplace equality, the subject of this blog.

In a telling moment of candor, Judge Sutton asked rhetorically,

May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Although these questions may not be central to Judge Sutton’s life, for many American workers, these questions and the assumptions that employers make about them profoundly influence both career trajectories and, by extension, personal lives.

Judge Sutton’s statement that he “rarely thinks about these questions” indicates an entrenched and static thinking.  Assumptions about with whom an employee has children, how many children the employee has, and who should care for them have changed rapidly in recent years.  A stable assumption now means a biased one.  And, if Judge Sutton isn’t thinking about these questions, then he hasn’t seen the seismic shifts occurring on these questions.  In other words, what he sees as distinction has evolved into discrimination.

Indeed, the failure to consciously consider these questions itself indicates a reliance on implicit biases (a topic my colleague, Siham, addressed on this blog last week).  In their path breaking studies on implicit bias summarized in their book Blindspot, Mahzarin Banaji and Anthony Greenwald expose that most of us are implicitly biased in shameful ways.  For example, their experiments reveal that most people correlate women with family and men with careers (you can take the test for yourself, but you may be disturbed by what you learn; I’ve never taken it for that reason). These biases are bad—no question—and most people carry them in spite of themselves.

So what can we do about it?

The answer, Banaji and Greenwald propose, is that we can bring hidden bias into the open; we can think about biases and talk about them.  And then, when we understand the bases of our assumptions, we can bring them in line with our better intentions.  But the sad revelation of Thursday’s ruling is that at least two judges of the Sixth Circuit don’t normally think about at least one species of hidden bias.  And for a judiciary premised on protecting the minorities from discrimination, that revelation is profoundly troubling.

Unless Judge Sutton is willing to understand the bases and origins for his assumptions on these questions, he will continue to see discrimination as mere distinction.  And the fact that Judge Sutton doesn’t realize as much means that advocates for equality have a lot more work to do.  DeBoer may have been a case about marriage equality, but the assumptions underlying it will also damage workplace equality.

Russell Kornblith

Russell Kornblith represents employees in all sorts of cases as a member of the NY office of Sanford Heisler, LLP .  He is proud to distinguish himself from Maya S. in that he is from Oberlin, OH – not Cleveland – home of the first college to integrate education on both race and gender lines.  He is also willing to volunteer to fly you in a prop plane to the nearest Willie Nelson concert, as he has his pilot’s license and thinks Willie is the BEST. 

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