Professor Gail Heriot of the University of San Diego School of Law writes that we live in an “Age of Identity Politics” and asks why. Anti-discrimination laws are part of the problem, she posits in a draft research paper, The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression.
Professor Heriot points out that “the purpose of [civil rights] legislation was to make one’s destiny depend less on race, sex, and national origin,” such that “It would have been natural to expect them gradually to recede in importance in public life.” Instead, she says, “Quite the opposite seems to be happening. ‘Color blindness’ is not just unpopular these days among policy trendsetters; some condemn it as a form of racism.” And “Programs at the national, state, and local levels that openly grant preferential treatment to women and under-represented racial minorities . . . have mushroomed.”
Professor Heriot asks “what accounts for what otherwise might seem a paradox—the growing prominence of identity politics in the 21st century in the wake of several decades of improvement in the status of women and racial and ethnic minorities.” Anti-discrimination laws are part of the answer, Heriot argues.
To some extent, the connection is obvious, she says. For example, “The fact that Title VII covers discrimination based on race, color, religion, sex, and national origin (and not, say, socio-economic class, political party affiliation, or dietary choice) puts a premium on attributing adverse employment decisions to those prohibited grounds.”
Professor Heriot’s paper focuses on a less obvious and less discussed part of anti-discrimination law, the expansion of remedies enacted in the Civil Rights Act of 1991. She writes that “Two of the most lasting and consequential effects [of the 1991 Act] may have been to encourage the growth of identity politics and to weaken support for American norms of free expression—at least as those norms apply to statements that relate to race, sex, or national origin.”
Heriot explains that:
“Prior to [the 1991 Act], a lawsuit in a Title VII case that did not result in lost wages was probably not worth the plaintiff’s time. Afterwards, broad recovery for compensatory and punitive damages was allowed. Consequently, racial or sexual harassment that caused emotional distress (but not lost wages) became, for the first time, worth suing over. . . . Suddenly, it could pay for employees to interpret events in terms of those identity factors and to view common interactions—"Ms. Smith, you look nice today”—as somehow on the wrong side of the law. For good or ill, the change made it pay for employers to start vigilantly policing their employees’ speech. . . . [I]t made sense for practical-minded employers to come down on even . . . everyday annoyances—a zero tolerance approach.
As a result, sensitivity training programs proliferated. “The level of sensitivity they promoted grew ever more exacting,” Professor Heriot writes, “as exemplified by the popularization of the concepts of micro-aggressions and white privilege.” Heriot notes that “no one should be surprised to learn that 58% of Americans report that the ‘political climate’ these days prevents them from saying what they believe ‘because others might find them offensive.’”
Professor Heriot concludes that “Changes in Title VII remedial law were certainly not the only factors in producing these cultural changes. But they have likely been a significant factor in the workplace, especially at large corporations, and also beyond the workplace.”
“Lest we forget: The purpose of Title VII and other anti-discrimination laws was to promote integration, not fragmentation,” Heriot says, concluding that:
It’s hard not to wonder whether we have created too many incentives to see things in terms of race, sex, or national origin and not enough to see the commonalities that are so necessary to true integration. . . . [and] the kind of collegiality and indeed camaraderie that are so needed in the workplace.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at firstname.lastname@example.org.