2

Discriminating Tastes

In 2008 a California man filed a civil rights lawsuit to stop Mother’s Day. On May 8, 2005, the California Angels baseball team held a Mother’s Day celebration, which included a “#1 Angels Baseball Mom” contest and a Mother’s Day tote bag giveaway. According to the court that heard Michael Cohn’s lawsuit, “due to the difficult logistics of discerning which women were mothers in the heavy traffic of entry to the game, the Angels decided to generalize ‘mothers’ as females 18 years old and over” and give them—and only them—the Mother’s Day gifts. Cohn didn’t fit that description, and so he didn’t get a fetching Mother’s Day goody bag. Angry that he was denied a gift because of his sex, the disappointed Cohn sued. Mothers may rest easy: the court dismissed the lawsuit, and the Golden State remains safe for celebrations of maternity. The California Court of Appeals pointed out that the Angels did not in fact intend to denigrate or disadvantage men; instead, the team wanted, as the scripture admonishes and as loving children have done for millennia, to honor mothers. “The intended discrimination,” the court insisted, “is not female versus male, but rather mothers versus the rest of the population.” The court noted, “It is a biological fact that only women can be mothers … The Angels did not arbitrarily create this difference.”¹ In other words, it was not the Mother’s Day celebration that discriminated against Michael Cohn; it was Mother Nature, and her policies are not subject to the court’s jurisdiction.

But the Angels did discriminate on the basis of sex, whether that was the goal or not. A strict application of civil rights laws favored Cohn’s complaint, even if nature’s law did not. So far, Mother’s Day has survived legal challenge. But the zealous guardians of sexual equality have had success in other struggles against the menace of matriarchy.

* * *

The modern, anonymous, cosmopolitan singles scene is tricky under the best of circumstances. Office romances are professional suicide. Internet chat rooms are filled with trolls, adulterers, perverts, and pimply junior high school students, all of whom can use the anonymity of the medium to hide their deficiencies. Mixers are often glorified cattle calls. So dewy coed and rumpled hipster, weathered bachelor and middle-aged divorcée alike turn, in hope and in desperation, to Cupid’s watering hole: the singles bar. Many of these establishments deter the thrifty and indigent with a sizable cover charge and repel the impatient with a velvet rope and queue. The singles bar presents unique challenges for women, who often must run a gauntlet of wolves looking for an easy score, repressed misogynists, and married conventioneers. Little surprise, then, that men tend to outnumber women in most such venues, and hence the institution, celebrated in song, on signpost, and in newspaper advertisement, of ladies’ night.

Viewed charitably, ladies’ night is an admirable form of chivalry in an era when few courtesies survive the cold logic of markets and the competitiveness of the concrete jungle. Viewed cynically, ladies’ night is itself a beady-eyed response to a competitive market: if one is selling romantic and sexual opportunities, one needs to offer a wide field of compatible partners and reasonable odds of success. The practice has a whiff of patriarchal condescension, and the ethics of a fisherman baiting a hook. But ladies’ night is certainly no worse—in terms of sexism or exploitation—than the singles scene is generally.

It is, however, blatant and unapologetic sex discrimination. And that gave the New York attorney and men’s rights activist Roy Den Hollander his opening. In June 2007 he filed a sex discrimination lawsuit against five Manhattan nightclubs that charged women less than men as part of their ladies’ night promotions. “What I’m trying to do now in my later years is fight everybody who violates my rights,” Den Hollander explained to a New Yorker magazine reporter.²

Den Hollander was not the first man to strike out against the scourge of ladies’ night. In 1979 an Anaheim, California, student, Dennis Koire, saw the ugly face of discrimination when he was excluded from a bar that admitted his female companion. He began to notice female chauvinism everywhere: car washes offered women discounts on discriminatory “ladies’ days,” and nightclubs waived cover charges for women. When Koire sought to assert his equal rights, not only was he rebuffed—he was ridiculed. “Come back when you’re wearing a skirt,” quipped one car wash manager. “So sue me,” dared a nightclub proprietor. Koire did just that: with the help of the Orange County ACLU he took his complaint all the way to the California Supreme Court, and in 1985 the court held that ladies’ nights violated the Golden State’s Unruh Civil Rights Act, which in unequivocal language entitles anyone in the state to “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”³

Koire’s lawsuit was the beginning of the end for ladies’ nights in states across the nation. In 1998, David Gillespie filed a complaint with the New Jersey Division on Civil Rights against the Coastline Restaurant, which occasionally waived a $5 admission charge and offered drink discounts exclusively to women. The division sided with Gillespie and dropped the gavel on ladies’ night.⁴ In 2006, Steve Horner sued a Denver nightclub over its ladies’ night policy. Horner explained his opposition to the unfair advantages women enjoy in American society: “Women are growing up these days feeling they’re entitled to favors. I believe that this entitlement mentality is counterproductive to the social goals of an egalitarian society.” He then added, apparently without irony, “I’m going to ask for every dollar I’m owed to the letter of the law, which is $500”—this as damages for the $5 admission charge he was forced to pay as women entered gratis.⁵ In 2007, Todd Phillips, a lawyer specializing in gender bias, sued a Las Vegas gym that offered women a discount on initiation fees and a separate workout area.⁶ Courts in Iowa, Pennsylvania, Connecticut, and Hawaii have found that ladies’ nights and similar promotions or discounts are unlawful sex discrimination. And in 2007, the California Supreme Court reaffirmed its opposition to ladies’ night, finding for the Glendale lawyer Marc Angelucci of the National Coalition of Free Men—a “men’s rights” organization—in his lawsuit against a Southern California club that occasionally waived its $20 entrance fee for women. Angelucci was awarded $4,000 in damages for each violation.⁷

Although the law in several states apparently prohibits ladies’ night, popular opinion echoes the approval of Kool and the Gang: “It’s ladies’ night and girl the feeling’s good.” After the New Jersey Division on Civil Rights banned ladies’ night, Governor James McGreevey condemned the decision as “bureaucratic nonsense … It … reflects a complete lack of common sense and good judgment.”⁸ New Jersey later amended its civil rights laws to allow ladies’ nights. Conservatives condemned the rulings as yet another example of government intermeddling in the private sphere: a column in the National Review insisted that “the ruling—however absurd—is emblematic of the growing arrogance of a government caste that seeks to micromanage every aspect of Americans’ lives.”⁹ Liberals complained that the decision distorted the true purpose of civil rights laws and diverted resources from real injustices. Rita Haley, president of the New York City chapter of the National Organization for Women, remarked, “I am concerned that he [an anti-ladies’-night plaintiff] is looking for discrimination in all the wrong places.”¹⁰ The less ideologically minded lamented the death of chivalry and a misguided step toward an androgynous culture. One commenter on a website chat room quipped: “Ban Ladies Night? Oh dear … What’s Next? Ban Fun? Ban Drinking? Ban a Good Time? As a bloke, my heart goes out to the person who feel that ladies shouldn’t get special treatment.”¹¹ A legal commentator remarked: “Bars rivaling a Star Trek Convention [in the ratio of men to women] are no fun for anyone.”¹² The National Review column queried, “What’s next, ticketing men for opening doors or giving up their seats on the bus?”¹³

Could be. The California Supreme Court chief justice, Rose Bird, insisted in the Koire case that “the legality of sex-based price discounts cannot depend on the subjective value judgments about which types of sex-based distinctions are important or harmful.” Another lawyer was adamant that ladies’ nights had to go, even if the offending bar also had a “men’s night” when it gave the same free perks to men. Comparing ladies’ night to the racist contempt of apartheid and the Jim Crow era, she insisted that “one act of discrimination does not cancel out another … If a bar had a ‘Whites’ Night’ followed by ‘Blacks’ Night’ no one would blink an eye before denouncing … each night.”¹⁴ The George Washington University law professor John Banzhaf, who has encouraged his students to sue to stop ladies’ nights, argues that ladies’ night is in principle indistinguishable from discriminatory customs that denigrate women: discrimination is discrimination.¹⁵ Under this kind of logic, offering your seat on the bus to a woman because of her sex is just as bad as making black people stand in the back of the bus because of their race.

* * *

Most of the time, people pressing for new legal rights have good intentions and are addressing serious social problems. Professor Banzhaf, who sued to ban ladies’ night and plans more litigation over inequitably long lines for women’s restrooms, has also helped women fight discriminatory pricing for services, such as laundry services and hairstyling. Many laundries charge more than twice as much to launder and press a woman’s blouse as for a man’s shirt. Although they may claim that the higher charge reflects the additional work required to manage ruffles, bows, and other feminine details, many apply it to women’s blouses even when the garment in question is almost identical to a man’s except for size and color. Similarly, some hair salons charge women more than men for a cut and style, even when the women have short and simple haircuts and the men have long and elaborately styled tresses. These practices reflect outdated, habitual prejudices. Common stereotypes cast women as more fastidious about their appearance and women’s clothing and hairstyles as more elaborate than men’s; as a result, businesses lazily discriminate on the basis of sex, even though those stereotypes grow less valid with each passing year and even though they could easily discriminate based on the actual garment or hairstyle rather than on the sex of the customer.

These types of sex discrimination aren’t necessarily the work of bigots intent on keeping women down, but they are based on dubious stereotypes about how women do and should behave. And although each in isolation isn’t a big deal, they add up. Imagine receiving a handful of change compared with the dollar a man earns for similar work, facing unspoken barriers on the job, and getting the cold shoulder (or, worse, the wandering glance and groping hand) in the professional social circles that offer your best shot at networking and mentoring. On top of these indignities, imagine you also had to wait in long lines every time nature called and pay a premium to have the clothing you need for work laundered or to have your hair cut (apologies to my female readers, who probably have no need to imagine these things, having experienced them). One can see why some people might conclude that every sex-based distinction is a civil rights issue.

But do we really have to ban Mother’s Day and ladies’ night in order to address these obvious injustices? If a civil rights crusader like Professor Banzhaf really can’t tell the difference between invidious prejudice and innocent or prudent distinctions, will he stop after equalizing the queues for the restrooms? What if the ladies’ room is bigger, or cleaner, or has more attendants or a comfy sofa, while the men’s is just a wall of urinals with a sticky floor and dirty sink? Shouldn’t we sue to eradicate those inequalities too? For that matter, even if the men’s and women’s restrooms were identical in every respect, could the lofty ideal of equal rights abide separate but equal restrooms? Surely no one would blink an eye before denouncing a business that had a whites-only restroom and a separate but equal blacks-only restroom. If, as Justice Bird insisted, legality cannot depend on subjective value judgments about which types of sex-based distinctions are important or harmful, then doesn’t equality require men and women to be integrated in one unisex bathroom? The practical impediments could be overcome—at least in theory. After all, don’t sex-segregated bathrooms reflect an outdated obsession with sexual modesty? Sure, people will be uncomfortable sharing bathrooms with the opposite sex at first, but they’ll just have to get over it; after all, men were once uncomfortable sharing corporate boardrooms with the opposite sex too. And the privacy issues can be mitigated: everyone enters and exits closed stalls fully clothed; a unisex loo could simply eliminate urinals and with them the problem of modesty around the opposite sex.

Is there more than outdated modesty behind separate men’s and women’s bathrooms? Imagine a lone woman entering a train station bathroom late at night to find a man loitering inside, or an aggressive male suitor following a woman into the bathroom to continue his failed attempt at seduction, or a woman running a gauntlet of drunken men on her way to the toilet at the end of a baseball game. After reading about Professor Banzhaf’s planned litigation, I conducted an informal survey of about fifty smart professional women to see what they thought should be done about the issue of bathroom queue equity. Almost all of the women I asked were well to the left on the ideological spectrum, and many were committed feminists and champions of women’s rights. Still, precisely two women—or 4 percent—embraced the absolutist position that separate men’s and women’s bathrooms violated civil rights. In fact, most were adamant that the sexes should be separate but equal in the realm of personal hygiene. One worried that “a formal right to parity, or a regulatory agency deciding who pees where, is kind of gross … and I think if you force people to go unisex, that will lead to pressure for more private stalls for modesty reasons … why spend money on that?” Another said, “Gee, this seems such a wrong fight to me … Tremendous resources involved … but mostly off the point of improving [things] for everyone involved, men and women.” Eliminating urinals would require costly remodeling of thousands of bathrooms. Moreover, urinals are almost universal fixtures in men’s bathrooms for a practical reason: they’re cheap and don’t take up much space. Eliminating urinals in coed bathrooms would almost certainly mean fewer places to pee for everybody. These practical considerations were uppermost in the minds of most of the women I talked to, but they don’t figure in a rigid equal rights analysis.

Today most people agree that sexist rules and customs that keep women down and perpetuate dusty old stereotypes of female frailty, passivity, and incompetence should be prohibited in the workplace and expunged from the public sphere. But only a handful of extremists would extend laws against sex discrimination to forbid chivalry or ban a time-honored tradition like Mother’s Day or an innocent custom like ladies’ night. Of course, read literally, without the mediating influence of good judgment or common sense, the laws that prohibit truly demeaning and invidious sex discrimination apply to ladies’ night promotions and to the use of the female gender as an expedient proxy for mothers in a Mother’s Day giveaway. Rights go wrong when propelled beyond the boundaries of good sense by abstract and scholastic thinking. Justice Bird’s admonishment notwithstanding, legal prohibition must depend on value judgments about which practices are important or harmful. Not every distinction—even if based on race or sex—is invidious. Some are practical: sex-exclusive restrooms prevent avoidable embarrassment, harassment, and assault. And some are innocuous: ladies’ night is a fairly harmless practice designed to make male-dominated nightclubs more inviting to women. Judges shouldn’t blindly apply rigid rules, heedless of practical consequences; it’s their job to tell the difference between legitimate challenges to antediluvian prejudices and the trivial, spiteful, and extreme claims that make rights go wrong.

For Discrimination

In the decades since the landmark social movements and civil rights laws of the 1950s and 1960s, civil rights have both narrowed and intensified their focus to zero in on the problem of discrimination. The legal and cultural stigma now attached to “discrimination” is so powerful that the very word is almost synonymous with bigotry. But “discrimination,” stripped of the moral connotations that now surround the term, simply means making and acting on distinctions. Sometimes it makes perfect sense to discriminate—even on the basis of race or sex. When my doctor tells me to cut down on salt and fatty food because black men are statistically more likely to suffer from hypertension and heart disease caused by salt and fat, he’s discriminating on the basis of race and sex. And I should be glad that he is. Unfortunately, the civil rights focus on discrimination leads people to condemn reasonable, prudent, and innocent distinctions.

Worse, faced with inequities that are not caused by discrimination, modern civil rights law is impotent, and civil rights activism is unfocused and often misguided. The narrow civil rights focus on discrimination has encouraged many people to oversimplify the problems of inequality and illegitimate hierarchy and misdiagnose social maladies, condemning benign actions that involve making group-based distinctions and ignoring malignant practices that don’t involve discrimination.

Civil rights haven’t always been so obsessive or so limited. The historic March on Washington in 1963 led by Martin Luther King Jr. focused on “jobs and freedom,” reflecting a decades-old civil rights agenda to expand substantive economic opportunities for blacks, who faced both overt prejudice and systematic disadvantage. No one in 1963 thought that civil rights required the elimination of all racial distinctions: when King hoped for a world where people would “not be judged by the color of their skin, but by the content of their character” (perhaps the most abused quotation in the history of American oratory), he advocated a social ideal of equal respect, not a rigid and impractical rule that would condemn the acknowledgment of salient social divisions. During the early 1970s, as the omnibus civil rights legislation was first being interpreted by courts, there was a robust debate about the appropriate meaning and scope of civil rights. Few thoughtful people argued for the rigid and simplistic antidiscrimination law that so many lawyers and judges accept today. For instance, the Yale Law School professor Owen Fiss argued that the Fourteenth Amendment guarantee of equal protection required courts to look askance at laws that disadvantaged certain downtrodden groups, of which blacks were the paradigm.¹⁶ My former dean at Stanford, Paul Brest, argued that equal protection forbade not only overt discrimination but also laws and policies that looked evenhanded but reflected “selective sympathy and indifference.”¹⁷ In the 1960s and early 1970s few thought intentional discrimination was the defining feature of social bigotry: many thought the intent of decision makers was inevitably too obscure to be the object of legal scrutiny, and many others thought discriminatory intent was important largely because it led to unequal consequences.

This period was no golden age of enlightenment: many of the ideas advanced then seem misguided today, and many more have proven to be incoherent, quixotic, or unworkable. But the legal, legislative, and popular conversation involved serious and honest grappling with practical questions: How can we change bigoted social attitudes? How can we best integrate isolated racial groups into the mainstream of society? How can we ensure that job opportunities aren’t limited by racial and ethnic cartels? How can we prevent government from acting on and reinforcing old prejudices? None of these questions are less relevant today, but over time practical and substantive concerns were lost from view as the civil rights lens concentrated its focus on discrimination.

Of course, discrimination has always been one of the main targets of civil rights, and for good reason: historically, people expressed their prejudice openly, in the form of overt discrimination, which in turn isolated women and minorities and limited their job opportunities. But eliminating discrimination came to dominate civil rights—both in the courts and on the streets—at the expense of other means to social justice. Not surprisingly, this narrow focus was largely successful in eliminating overt discrimination, just as a lens that concentrates the rays of the sun onto one spot on a leaf will eventually burn the spot away. This focus on discrimination worked to eliminate the most conspicuous evils of Jim Crow, but such a narrow civil rights approach is no longer the right way to deal with many of the nation’s worst social injustices.

America’s history of systematic exclusion and exploitation based on race has left us with troubled, racially segregated neighborhoods where job opportunities and successful role models are rare; as a result, a subculture of gray-market hustling is pervasive, and serious crime is common. Even relatively successful black families often aren’t part of the informal social networks that provide job opportunities and mentoring for many of their white—and increasingly also their Asian—peers.

Women also face distinctive obstacles to career advancement. Although a large and growing number of American households need two incomes to make ends meet, in most families women still take on the lioness’s share of household work and child care. This isn’t just the result of chauvinism among employers (although of course that plays its part in limiting women’s opportunities); instead, it’s the result of deep-seated social expectations that lag behind a rapidly changing economy. The job market, far from adjusting to the new need for shared domestic responsibility, is becoming more and more demanding. Working men and women alike need a stay-at-home spouse to handle child care, laundry, cleaning, and social planning as they log the long hours on the job that were once the exclusive burden of the ambitious working stiff. The old roles of male breadwinner and female caretaker die hard for both men and women: many women want to fulfill the traditionally female domestic roles, and many men are happy to let them do so. And because gender norms are contested and in flux, the professional woman’s every small decision is a potential blunder: from clothing and grooming options to posture and comportment, women in the workplace walk a narrow path between coming across as unprofessionally girlish and titillating and as off-puttingly gruff and masculine. “Discrimination” doesn’t capture these pervasive impediments and double binds, and as a result, a law that targets discrimination often misses the mark.

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The Harrah’s operating company runs hotels and casinos in Las Vegas, Atlantic City, New Orleans, Lake Tahoe, and Reno. Its properties offer lodging and entertainment for conventioneers, stag-party goers, and pleasure seekers of all incomes and tastes: high rollers can experience Caligulaean excess at the luxurious Caesars Palace, while middle-income tourists and conventioneers can book moderately priced rooms overlooking a miniature Eiffel Tower in the petit bourgeois arrondissements of the Paris Hotel and Casino. Harrah’s properties in other cities are typically less elaborate, but sybaritic indulgence is a common theme: while Caesars Palace features gourmet restaurants and designer boutiques, the less exclusive hotels feature all-you-can-eat buffets and souvenir shops. In the legendary Las Vegas tradition, the Harrah’s family of hotels emphasize forbidden pleasures: gambling, drinking, and sex. This includes Harrah’s Reno, where, according to the company website, guests are invited to “sip on a variety of cocktails made with only the best liquers” (to say nothing, one imagines, of liquors and liqueurs) while listening to the “sexy, seductive Sapphire Sirens heating up the Sapphire Lounge with intoxicating dances and sensual vocals.”¹⁸

Image is everything in the hospitality-cum-sin business: Caesars Palace features cocktail waitresses clad in Roman togas cut off at mid-thigh; Paris is staffed by cancan girls wearing short ruffled skirts. Bally’s Las Vegas is home to “the last authentic showgirl revue,” Jubilee, which features a chorus line of “50 topless dancers,” who, in the course of the evening’s performance, don over a thousand Bob Mackie–designed costumes featuring sequins, feathers, false eyelashes, and theatrical makeup. “Hundreds of Thousands of Rhinestones, Covering Practically Nothing,” boasts the hotel’s advertisements. Nor are the titillating outfits confined to showgirls and dancers: many Las Vegas casinos require cocktail waitresses to wear stiletto heels during their long hours serving drinks. The Harrah’s-owned Imperial Palace was sued for sex discrimination in 1996 because it required cocktail waitresses to have “a sexy and glamorous appearance” and accordingly moved pregnant women into less visible—and lower-paid—positions when they began to show.¹⁹ In June 2001, casino cocktail waitresses organized the Kiss My Foot campaign and staged a protest outside Las Vegas’s Venetian hotel against rules requiring high-heeled shoes.²⁰

What happened in Vegas didn’t stay in Vegas: in 2000, Harrah’s implemented the “Personal Best” and “Beverage Department Image Transformation” program, requiring staff at all of its properties to meet new grooming and appearance standards. Like Greeks sequestered inside a statue of a horse, the rules came disguised as a gift: Harrah’s paid for each employee to get a $3,000 professional makeover, including hair and makeup. To make sure the gift kept on giving, employees were photographed in their uniforms and new, improved hair and makeup, a visual memento of their “personal best.” Each employee was required to maintain that standard—hair, makeup, and weight—from then on.

Harrah’s Reno employees took to the streets to protest the new grooming policies. Roughly fifty people marched with signs reading “Harrah’s Makes a Lousy Pimp” and “Harrah’s Hooks Women to Make an Extra Buck.” The protesters handed out leaflets comparing Harrah’s grooming requirements with those of the Moonlite Bunny Ranch brothel—Harrah’s rules were more strict. The Bunny Ranch’s owner, Dennis Hof, the self-described “pimpmaster general of America,” happily took up the cause of the Harrah’s employees: “I’m in the sex business … and yet I’m not concerned about makeup. Harrah’s is not selling sex but they want their girls to be all made up.”²¹

Compared with the glitz required of showgirls and cocktail waitresses, the new image for bartenders was downright staid. A standard uniform consisted of black pants, white shirt, black vest, and black bow tie. Grooming rules forbade “faddish hairstyles or unnatural hair colors” and required “tasteful and simple jewelry only: no large chokers, chains or bracelets.” No long hair or makeup for men. For women: “Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions. Stockings are to be of nude or natural color consistent with employee’s skin tone. No runs. Makeup (face powder, blush and mascara) must be worn and applied neatly in complimentary [sic] colors. Lip color must be worn at all times.”

Harrah’s had always encouraged female employees to wear makeup, but now it was mandatory: apply the lipstick or apply for a new job. Darlene Jespersen had worked as a bartender at Harrah’s in Reno, Nevada, for twenty makeup-free years when the image transformation edict came down. According to the deposition taken as part of her sex discrimination lawsuit against Harrah’s, Jespersen found makeup demeaning and degrading. Wearing makeup made her so uncomfortable she couldn’t do her job. Rather than compromise her self-image by wearing makeup, Darlene Jespersen defied the new grooming policy and was fired.²²

Harrah’s policy required women and only women to wear makeup and styled or teased hair. It obviously discriminated on the basis of sex, strictly speaking. But the federal courts that heard Jespersen’s case and appeal both held that the policy did not discriminate on the basis of sex, legally speaking. Why not?

The short answer is that these courts did what the California chief justice Rose Bird would not and made a value judgment about which types of sex-based distinctions are important or harmful. In doing so, they followed decades of established law that allows sex-discriminatory grooming standards and dress codes. Consider the rejected complaint of the television reporter Christine Craft. Like Darlene Jespersen, Craft had bad experiences with makeup. She worked her way from a small local station in Salinas, California, to San Francisco and then to a network job hosting the “Women in Sports” segment of CBS Sports Spectacular. CBS made Craft dye her hair blond and wear heavy makeup on the air, but despite these efforts the “Women in Sports” segment was discontinued after thirty weeks. In January 1981, Craft was hired as co-anchor at KMBC in Kansas City, Missouri, as part of an effort to “soften” the news presentation. Craft was apparently willing to serve as the softer side of the evening news, but she insisted that she didn’t want to go through another “makeover” like the one at CBS. Management agreed in principle, but added that they did work with image consultants who might have a few ideas about Craft’s appearance and dress.

Having lured her to Kansas City, KMBC management and the image consultants then set in to transform Craft from duckling to swan. They applied her makeup, gave her a “dress for success” book, and arranged for a new Macy’s wardrobe and wardrobe consultation for her. To no avail: a focus group’s reaction to Craft’s appearance was “overwhelmingly negative.” Craft asked to be released from her contract so she could return to field reporting in California, but KMBC management convinced her to work on her image instead. But the results of a survey confirmed that Craft had not won the hearts of the viewing audience: in comparison with female co-anchors at KMBC’s competitors, Craft trailed in almost every category of evaluation. KMBC’s consultants advised that the station replace Craft; in August, KMBC demoted Craft to reporter. Craft sued KMBC for sex discrimination.

There’s no doubt that KMBC discriminated on the basis of sex. But some of its sex discrimination was to Craft’s advantage: the station hired Craft in the first place, in part, because of her sex. Having done so, they insisted on sex-specific grooming, and they evaluated her by comparing her with other women using sex-specific standards. The federal district court and the Court of Appeals for the Eighth Circuit found, following a substantial line of cases, that “appearance regulations making distinctions on the basis of sex” do not violate the law as long as “the standards are reasonable and are enforced as to both sexes in an evenhanded manner.”²³

Title VII allows employers to discriminate when sex is a bona fide occupational qualification (BFOQ), although it allows no such exception to its prohibition of race discrimination. This reflects a widely held belief that sex differences are likely to be relevant to certain jobs. Most BFOQ exceptions involve privacy and modesty: public restroom or locker room attendants, for instance. But sometimes the exception allows an employer to yield to widespread public attitudes, even when those attitudes are objectionable. For instance, one influential case involved a female prison guard who applied to work in a men’s prison: because of the risk that a woman would be the target of harassment by prisoners, potentially undermining the authority of the prison guards, the court held that male sex was a BFOQ for the position.

The BFOQ exception is and should be a narrow one. If widespread public attitudes about sex difference alone were enough to trigger the exception, the law would mirror social prejudices rather than remedy them. Does this leave us with no alternative but to ban all sex-based distinctions? Most courts have tried to find a middle ground, banning sex discrimination when it’s demeaning or harmful to women, but allowing reasonable distinctions that reflect the overwhelming social consensus that some differences between the sexes are both inevitable and desirable. This necessarily involves some difficult and controversial judgment calls.

* * *

If you’re looking for demeaning grooming and dress codes, there are more obvious targets than Harrah’s or the evening news: for example, the Hooters restaurant chain, which allows only well-endowed young women to don the company uniform of tight tank tops and bright orange hot pants and serve its deep-fried diner fare. The chain hires men for other jobs, but table service is reserved exclusively for the “attractive, vivacious Hooters girls.”

Hooters doesn’t just have different rules for men and women; it has an entirely segregated job category. The Hooters employee handbook advises:

The essence of Hooters is the Hooters Girl … Customers can go to many places for wings and beer, but it is our Hooters Girls who make our concept unique. Hooters offers its customers the look of the “All American Cheerleader, Surfer, Girl Next Door.” The essence of the Hooters Concept is entertainment through female sex appeal, of which the LOOK is a key part. When you are in the Hooters Girl Uniform you are literally playing a role … you must comply with the Image and Grooming Standards that the role requires.

Hair is to be styled at all times. No ponytails or pigtails … No bizarre hair cuts, styles, or colors are acceptable …

Make-up is to be worn always to best accentuate your features. Hooters Girls are to be camera-ready at all times …

The Hooters Girl uniform shirt … must be sized to fit, NO BAGGINESS.

Only approved Orange Hooters Girl Shorts are to be worn, sized to fit …

Pantyhose are a required part of the uniform and are to be worn any time the Hooters Girl uniform is worn … If the pantyhose run or snag, they must be immediately replaced with a new pair for you to continue your shift …

Failure to comply with Image or Grooming Standards may result in discipline up to and including termination.²⁴

Many women find the Hooters concept demeaning, but it’s been men who have taken legal action against the company for sex discrimination. Hooters claims that sex is a bona fide occupational qualification for the job of Hooters Girl. The company compares its policy with that of the Playboy Club, which employed an exclusively female staff of scantily dressed “Bunnies” to serve drinks and food. In 1971 the New York State Division of Human Rights held that sex was a BFOQ for the job of Playboy Bunny.

Hooters’s website presses its point by including, in a website gallery of attractive young Hooters Girls, Vince “the Hooters Guy”: a burly man with a mustache and hairy chest wearing a tight white tank top and blond wig. “In 1995, HOOTERS … needed help to communicate how ridiculous it was for the Federal EEOC to try and force HOOTERS to hire guys as HOOTERS Girls,” reads the accompanying text. Hooters’s legal justification may be as skimpy as its uniforms. When Southwest Airlines, billing itself as the “love airline,” made a similar argument in defense of its policy to limit flight attendant and ticket agent positions to women, a federal court found it liable for sex discrimination. Like Hooters, Southwest had made sex appeal its competitive advantage: “Unabashed allusions to love and sex pervade all aspects of Southwest’s public image. Its T.V. commercials feature attractive attendants in fitted outfits … while an alluring feminine voice promises inflight love.”²⁵

Hooters apparently isn’t confident enough to test its legal theory in court; instead, the company seems willing to buy off disappointed male job seekers in order to keep its girls and their unique attractions front and center. In 1997, Hooters settled a sex discrimination lawsuit filed by disappointed male job seekers for $3.75 million: the company agreed to hire men as hosts, kitchen staff, and bartenders, but the settlement allowed Hooters to continue to limit waitstaff positions to women.²⁶ The deal didn’t satisfy everyone: in 2009, a Corpus Christi man, Nikolai Grushevski, sued Hooters for sex discrimination after being turned down for a job as a Hooters, well, Girl. “If we lose this go around, you can next expect hairy-legged guys in the Rockettes to line up and male models in the Sports Illustrated swimsuit issue,” complained a Hooters executive.²⁷ Grushevski reached a confidential settlement with Hooters later that year.

Of course, there’s a difference between a chorus line dancer or swimsuit model, on the one hand, and a waitress or flight attendant, on the other: physical grace and aesthetics are indispensable parts of the chorus line and the swimsuit pictorial; waitresses and flight attendants, by contrast, perform discrete tasks that don’t involve looks. No one believes Congress intended to effectively outlaw sexually titillating entertainment when it passed Title VII, nor could it do so without violating the First Amendment guarantee of freedom of expression. Like it or not, businesses are free to sell sex and use sex appeal to sell other products. But Congress did intend to prevent employers from making sex—if not sexiness—a condition of employment. Hooters discriminates against men, but the real victims of its practices are women. A few men lose out on low-wage jobs as Hooters waitstaff; by contrast, the Hooters concept threatens to promote a business culture where women—and only women—are required to use sex appeal to get mundane jobs waiting tables.

Playboy Bunnies and Hooters Girls present hard cases for civil rights laws because they combine a job for which sex is irrelevant—serving food and drinks—with a setting in which sex is everything. Most courts have used an implicit sliding scale to evaluate jobs where sex appeal is part of the business model: if sex appeal is indispensable or central to the job, sex is a BFOQ and the employer can discriminate; if sex appeal is peripheral to the job, sex is not a BFOQ and discrimination is unlawful. This is why Southwest Airlines wasn’t allowed to discriminate in hiring flight attendants, who must perform a wide range of challenging and legally required tasks that have nothing to do with sex appeal. And it explains why the Playboy Clubs—more entertainment venues that happened to sell food than restaurants—were allowed to hire only women as Bunnies.

Courts have used a similar context-specific approach in evaluating sex-specific grooming standards. When image and glamour are central to a job or business model, courts are more willing to allow sex-specific grooming rules, even when they come with unequal burdens. Christine Craft and Darlene Jespersen were employed in industries that emphasize image, glamour, and appearances generally. Jespersen’s sex discrimination complaint might have been stronger had she been a bartender at a dowdy airport Hilton, but her employer—Harrah’s—competes in one of the most glitzy and sexualized hospitality markets in the United States. Every aspect of a typical casino is orchestrated to make the visitor forget his or her ordinary life and inhibitions: gaming floors and bars are designed without windows so visitors forget the time of day; layouts are deliberately disorienting and exits difficult to find; alluring distractions are everywhere to draw the visitor deeper into the maze of slot machines, craps tables, and roulette wheels. The implicit yet powerful message is that the casino is a glamorous fantasy world where the humdrum conventions of decorum and restraint do not apply. Of course, the casinos hope that the pervasive atmosphere of excitement and suspended inhibition will carry over from the bar and showgirl revue to the gaming tables. Every casino employee contributes to—or detracts from—this carefully planned seduction. The burlesque of the casino is only an especially conspicuous instance of the come-ons typical in the marketing, entertainment, and hospitality industries, from the chic hostess at a gourmet restaurant to the well-built, fresh-faced bellhop at a five-star hotel to the sommelier with the reassuringly urbane mannerisms and Continental accent.

Christine Craft began her career as a reporter—a job where image shouldn’t matter much—but when she became an anchorperson, looks were of greater importance. Craft was held to different standards from her male counterparts, standards that were probably stricter and more detailed. That’s discriminatory. But Craft was hired to fill an explicitly gendered position that called for her to “soften” KMBC’s evening news program: in a sense, gendered grooming rules were necessary for her to do the job she was hired for. There’s no doubt that KMBC discriminated on the basis of sex; it did so when it hired Craft in the first place. Having accepted the job, Craft had to have expected gendered standards of appearance. In fact, she tacitly acknowledged as much when she told KMBC that she didn’t want to repeat her experience on “Women in Sports” but agreed to work with their image consultants. Maybe KMBC breached an implicit bargain by placing so much emphasis on Craft’s image after promising not to make her relive her previous makeover experience. But it’s hard to credit the claim that the grooming standards violated her civil rights simply because they involved distinctions based on sex. Craft had already acquiesced in KMBC’s sex discrimination—which worked in her favor when she has hired—and only hoped to limit its scope.

The strongest arguments against gendered grooming standards don’t insist that all sex-based distinctions are unlawful; they ask us to make a value judgment about which distinctions are harmful and which are innocent. In dissent in Jespersen, Judge Alex Kozinski points out the obvious: Harrah’s “Personal Best” grooming code didn’t just require different things of women and of men; it required more of women than it did of men. “Application of makeup … requires considerable time and care,” he wrote. “Even those of us who don’t wear makeup know how long it can take from the hundreds of hours we’ve spent over the years frantically tapping our toes and pointing to our wrists.”²⁸

There’s no doubt that many conventional norms of grooming and dress are harder on women than on men. Even the most fastidious and fashionable man need only worry about a close shave, a sensible haircut, a clean shirt, and a well-knotted tie. Women, on the other hand, often feel the need to apply several different types of makeup, using an array of artist’s brushes and surgeon’s implements to curl eyelashes, pluck brows, dab on blush and eyeliner, brush on mascara, line lips, and blend in lipstick. They must contend with delicate nylons that snag and run and learn to walk in high heels that threaten twisted ankles in the short run and podiatrist’s visits over the long haul. There’s much to be said for using the law to loosen the grip of these grooming norms by prohibiting businesses from making them a condition of employment.

But there will probably always be differences in the ways men and women are expected to dress. Even most women who refuse on principle to wear makeup or high heels are willing to nod their pageboy haircuts to convention and wear skirts and dresses, pantsuits, women’s blouses, and feminine jewelry. And of course plenty of women voluntarily endure the hassle because they enjoy feminine fashions, or they think, on balance, the positive reactions they receive make it worthwhile. Some degree of conformity to conventional gender norms is simply a part of appropriate and professional attire. It’s obvious that overly provocative clothing is inappropriate for the workplace, but a woman dressed in male drag can be equally distracting: the woman who wants to be noticed for her work and not her wardrobe will avoid dressing like a tomboy as well as like a showgirl.

This may be changing: in many of America’s more cosmopolitan cities, a small but growing group of transgendered people insist on deliberately androgynous dress and grooming or gender cross-dressing. But this is a very small subculture, unlikely to ever achieve the size or prominence of the gay rights movement with which it is often too casually associated. Moreover, “transgender” denotes a number of distinct and often mutually antagonistic relationships to gender: from the committed androgyne who challenges the strict bimodal male-female division to the “man trapped in a woman’s body” who seeks sex-reassignment surgery and hormone therapy—hardly a repudiation of the conventional gender division but instead a bid to switch sides.

Perhaps one day a growing transgender community will make us ashamed of today’s gender norms. But for now, employers are entitled to require professionalism—gender differences included. Those who oppose all such grooming policies complain that they reflect “stereotypes,” but one person’s sex stereotype is another’s sensible distinction. Did KMBC’s attempt to remake Christine Craft’s makeup and wardrobe reflect “sex stereotypes” about how women should look, or a sensible decision to try to make Craft more charismatic to the viewing public? For that matter, did KMBC’s decision to hire Craft in the first place to “soften” the evening news reflect sex stereotypes, or was it based on the reasonable suspicion that viewers of both sexes are more likely to warm up to a male-female team?

Deciding when gendered norms are reasonable and when they are overly burdensome or demeaning requires a subtle and context-specific inquiry. And here’s the rub: in some jobs—especially those where looks are important—many reasonable gendered norms are harder on women than on men. Judge Kozinski, in his dissent in Jespersen, rightly takes his Ninth Circuit colleagues to task for trying to evade this problem. The Jespersen majority copped out: “We would have to speculate … [and] guess whether [Harrah’s] policy creates unequal burdens for women,” they demurred. But as Judge Kozinski insisted, “You don’t need an expert witness to figure out that [face powder, blush, mascara, and lipstick] … don’t grow on trees … [and] that application of makeup is an intricate and painstaking process.” There was no real doubt Harrah’s policy burdened women more than men; the Jespersen court tacitly decided that the unequal burden was acceptable. That’s a judgment call, based on the nature of Darlene Jespersen’s job, the state of American gender relations, and perhaps the judges’ own reservations about how much the law can change society.

Personally, I think the Jespersen court made a bad call: the job of bartender isn’t sufficiently image dependent to justify the unequal burden that Harrah’s policy placed on women. But the court’s mistake was not in making a value judgment instead of inflexibly prohibiting any and all discrimination. The law can’t rid society of sex differences or of all the differing—and at times unequal—burdens that come with them. The best it can do is to eliminate some of those burdens and control and temper those inequalities it can’t eliminate. This is a delicate intervention that requires good judgment: a willingness to intervene when appropriate and forbear when necessary. That’s why we need judges who are both well versed in the law and well acquainted with the subtleties of social interactions and the economy, judges who are both knowledgeable and wise. No rigid legal rule or unyielding moral principle ever devised or expounded on by jurists or philosophers can take the place of good judges with good judgment—or save us from bad judges with poor judgment.

Burning Down Justice

Along with astronaut, cowboy, and Jedi Knight, a job as a firefighter ranks close to the top of most wanted careers for five-year-old boys nationwide. For adults, a career as a firefighter retains some of its boyish charm, and, more substantively, it is typically a good-paying job with generous benefits—a rare and coveted thing in today’s unforgiving economy. But modern building codes, improved wiring and gas lines, and fire-retardant building materials have left firefighters with less to do. Firefighters’ jobs—long highly sought after—are now also more scarce. Like any government job, they have always been potential objects of political favoritism. In response to decades of blatant cronyism, in which privileged constituencies, often defined by ethnicity, were given control over some part of the civil service in return for loyal political support, American cities today almost universally select firefighters using some sort of objective evaluation designed to ensure that merit—not politics—determines success. Civil service reform has eliminated blatant graft and nepotism and has limited the ability of incumbent employees to handpick their successors. But it has replaced these evils with employment examinations that exclude the nuances of desirable selectivity along with the evils of favoritism.

Like many American cities, New Haven, Connecticut, changed dramatically during the 1960s and 1970s: in 1950, New Haven was 94 percent white and just under 6 percent black;²⁹ in 1960, it was 85 percent white and 14.5 percent black; by 2000, it was 43.5 percent white and 37.4 percent black.³⁰ New Haven’s fire department filled its ranks from the Polish, Irish, and Italian American communities that made up much of the city’s working-class population in the mid-twentieth century. But as whites left New Haven for its surrounding suburbs, they, like many suburbanites, hung on to their jobs in the city—including in the fire department. By 1973 only 3.6 percent of New Haven firefighters were black, and none were Hispanic, although the city’s black population had grown to over 26 percent.³¹ Black firefighters sued New Haven for race discrimination in one of the first of a wave of civil rights lawsuits against fire departments nationwide. Today, New Haven’s rank-and-file firefighters are integrated, but whites still hold a disproportionate number of supervisory positions.

In 1989 black firefighters sued New Haven over discrimination in promotions; a Connecticut appellate court found that the department’s promotion practices violated civil service laws. In 2004 another Connecticut court banned another promotion practice in response to another lawsuit by black firefighters, and as a result the promotions of some white firefighters were reversed. “You want to talk about a stiff workplace?” one black firefighter commented to Slate’s Nicole Allan and Emily Bazelon. “I don’t want to remember what that was like.”³² In response to these complaints the department hired a professional consultant to develop a promotional examination that everyone could agree was fair. The consultant made a special effort to rid the exam of any hidden or inadvertent racial bias: the new test excluded personal references and supervisor evaluations, which might reflect biases or favor white applicants who were more likely to have relatives or friends in the department, and its questions were vetted for relevance to real-life firefighting skills.

But the consultant didn’t have control over everything. Many professional examination experts believe that oral questioning yields more probative—and less racially skewed—results than written exams, but the firefighters’ union had demanded years ago that the written portion of the exam count for 60 percent of a candidate’s total score. A written exam might test a candidate’s knowledge of technical information, statistics, and equipment. Anyone with a knack for exams can do well with sufficient study, and people with longer exposure to the material will have an advantage that may exaggerate their actual on-the-job competence. An oral exam might pose more open-ended questions (“Here’s a picture of a building: the ground floor is on fire and a family trapped upstairs. What should you do?”) and allow for follow-up depending on the candidate’s answer. Another factor that the consultant couldn’t control: the city’s charter required that only the three highest-scoring candidates for any open position be considered for promotion. Few professional exams are fine-tuned enough to sort candidates in rank order. They are best used to set a floor for minimum competence—like the medical boards or a state bar exam—or to group candidates into rough “tiers” of qualification. Finer-textured distinctions involve more intangible factors—such as temperament and judgment—that tests can’t measure.

New Haven’s new promotional exam might not have been perfect, but at least it wasn’t racially biased, right? Depends on whom you ask. When the results came back, no black firefighters and only one Hispanic were eligible for promotion. The New Haven Firebirds—a black firefighters group—complained that the exam and promotion rules worked together to disadvantage minority candidates. Black firefighters could make a reasonably strong case that the promotions violated Title VII, the federal civil rights law prohibiting employment discrimination. There are two ways to discriminate under Title VII. The employer can intentionally discriminate by making race a factor in employment decisions—choosing a white candidate over a black candidate because of race. An employer can also discriminate by using a selection process that has a “disparate impact” on a protected group—in other words, a process that screens out most or all members of a particular group and isn’t sufficiently “job related.” If the exam, rules, and decisions that made minority candidates ineligible to become lieutenants and captains—including the greater weight given to the written as opposed to the oral exam or the decision to rank candidates instead of using the exam as a floor—were not a good way to select the best candidates for the positions, they would violate the law, even if they weren’t motivated by racism. A firefighter who defended the examination told a local newspaper that the exam didn’t favor white firefighters per se; instead, it favored “‘fire buffs’ who have spent their whole lives reading fire suppression manuals … Most firefighters matching that description happened to be white.”³³ The legal question was whether “fire buffs” were better firefighters, or simply people who had amassed a lot of esoteric knowledge that didn’t have much relevance to real-world challenges.

It wouldn’t be enough for the city to prove that the exam was well designed. New Haven would also need to show that the ranking and relative weighting of the written and oral exams—rules the city accepted but had never evaluated itself—were a good way of sorting the candidates. Nine black and six Hispanic candidates actually passed the exam. If the city had used the exam as a floor to test for minimum qualification and not to rank qualified candidates, they would all have been eligible for promotion. The decision to make the written exam worth more than the oral exam was made under pressure from a union dominated by white firefighters. If the oral exam had been worth 60 percent and the written exam 40 percent—closer to the norm for public safety agencies nationwide, according to a black firefighter who later challenged the exam in court—three black firefighters would have been eligible for promotion, even under the city’s other arcane rules.

In addition to the legal liabilities, there were political perils. New Haven’s sizable black population had a tense relationship with the predominantly white fire department. Many thought local jobs should go to local residents rather than to whites who lived outside New Haven. Some felt the white firefighters looked down on blacks and on New Haven, even as they collected their city paychecks, an impression that some black firefighters in New Haven confirmed. Erika Bogan, a black firefighter, told Slate’s Allan and Bazelon that “when black kids peek into the Howard Avenue firehouse, oohing at the trucks … the suburban white guys … ignore the kids. She said she has also heard them joke on the phone about ‘working in the ghetto.’ ‘How dare you, when you live in Madison or Guilford, come in here and … take our money and talk shit about New Haven?’”³⁴

These understandable frustrations found intemperate expression in the voice of the Reverend Boise Kimber, a black Baptist minister and self-described kingmaker who was a member of the fire commission and a political ally of New Haven’s mayor, John DeStefano. Kimber, a powerful advocate for New Haven’s black community, wasn’t above divisive race-baiting and intimidation in pursuit of his political goals; indeed, his detractors said that these were Kimber’s preferred tactics. According to the New Haven Advocate, Kimber “threatened a race riot during the murder trial of a black man arrested for killing [a] white Yalie … and call[s] whites racists who question his actions.”³⁵ A veteran of New Haven politics claimed that in 2003, Kimber unsuccessfully tried to undermine a Latina candidate for alderperson, telling black voters that she “represented the Latino threat to blacks in New Haven.”³⁶ In 2002, as chair of the fire commission, Kimber had insisted that the department not hire firefighters with “too many vowels in their name[s]”—an oblique reference to Italian Americans. The resulting controversy forced him to step down as chair, but he remained a member of the commission and a powerful figure in New Haven politics.

Faced with the risk of a viable civil rights lawsuit and the certainty of political upheaval, New Haven held hearings to consider whether or not to proceed with promotions based on the contested exam. New Haven’s Civil Service Board heard from numerous experts who differed as to the quality of the exam and the likelihood that the city would be liable for disparate-impact discrimination. The board also heard from Kimber, who bluntly warned of political ramifications if the city accepted the exam results: “I look at this [board] tonight … three whites and one Hispanic and no blacks … I would hope that you would not put yourself in this type of position [by accepting the exam results], a political ramification that may come back upon you.”³⁷ After a long and acrimonious public debate, New Haven’s Civil Service Board voted to reject the exam results. The reason, they claimed, was in order to avoid violating Title VII.

As a result, the city was sued for violating Title VII. Frank Ricci, a white firefighter whose exam score qualified him for promotion, became the lead plaintiff in a lawsuit brought by the successful examinees. Ricci v. DeStefano would eventually make its way to the Supreme Court, becoming one of the most closely watched cases of 2009, and Frank Ricci would play a role in the political struggle over President Barack Obama’s first selection for the high court, Sonia Sotomayor. Ricci and his cohort argued that the city discriminated on the basis of race when it scrapped the exam results: the city rejected the results because of the race of the people who scored high enough to qualify for promotion.

The claim threatened to turn civil rights law against itself. On the one hand, black firefighters argued that accepting the results would constitute disparate-impact discrimination under Title VII. On the other hand, Ricci argued that rejecting the exam results would be disparate-treatment discrimination under Title VII. The city was in what the Supreme Court justice David Souter would later call a “damned if you do, damned if you don’t” situation.

A federal district court rejected Ricci’s claim without a full trial, holding that the city’s good-faith attempt to avoid disparate-impact discrimination under Title VII could not be disparate-treatment discrimination under the same law. The summary rejection of Ricci’s claim became the source of much controversy and bitter accusations of judicial misconduct levied by the champions of Ricci’s cause. But in this respect Ricci’s case wasn’t unusual: for better or worse, many employment discrimination claims are dismissed without trial. Intentional discrimination is very difficult to prove. Although a plaintiff doesn’t have to prove his case in order to survive summary judgment and get to trial, he does have to present evidence that—if believed—would prove it. A plaintiff claiming intentional employment discrimination must first establish some basic evidence that makes it plausible that he was a victim of discrimination: he was fired or turned down for promotion, for example, for reasons that weren’t obviously due to his own poor performance or across-the-board staff reductions. Once a plaintiff makes this showing (as Ricci did), the law requires the employer to offer a nondiscriminatory reason for the challenged decision. New Haven did this: the city claimed that it rejected the exam results in order to avoid disparate-impact discrimination against the black candidates for promotion.

At this point, the plaintiff must prove that the nondiscriminatory reason offered by the employer is a “pretext” for discrimination. It’s not enough for the plaintiff to show that the employer was unwise, was unfair, or didn’t have its facts straight. Basically, he has to prove that the employer’s justification is really just an alibi to hide a discriminatory motive. Typically, an employer doesn’t even have to prove that its nondiscriminatory justification is factually accurate; it is sufficient that the employer believed it and was motivated by it. For instance, an employer who fired a black employee based on the mistaken but sincere belief that the employee had stolen from the till would not be liable for race discrimination, even if the employee proved at trial that he did not in fact steal. Accordingly, it wouldn’t be enough for Ricci to show that the exam was written by top-notch experts in the field or even that it was the best possible exam to select firefighters for promotion. Ricci would have to show that the city officials didn’t really believe—even mistakenly—that promotions based on the test results would violate the law.

Ricci argued that New Haven refused to certify the exam results because of political pressure to promote blacks, citing Kimber’s numerous ill-considered outbursts as evidence. But the district court held this wasn’t enough to send the case to trial: Ricci offered evidence that the city might have had some bad reasons for scrapping the exam, but he hadn’t offered any evidence to discredit the city’s explanation or show that it was a just pretext for discrimination.

Of course, New Haven might have rejected the exam results in order to avoid disparate-impact discrimination and in order to placate Kimber and the city’s black voters. An employer who is motivated by both legitimate reasons and race may be liable for discrimination under a distinct legal theory of “mixed motives.” Ricci didn’t make a mixed-motives argument, but even if he had, it probably wouldn’t have made a difference. In the case that established the mixed-motives rule—Price Waterhouse v. Hopkins—the plaintiff, Ann Hopkins, who was passed over for promotion, easily established that sexism was a problem in her large accounting firm and for her in particular. But according to Justice Sandra Day O’Connor, it wasn’t enough to show that sexism was “in the air.” Hopkins won but only because she proved that the people who made the decision to deny her a promotion were actually motivated by sexism. Ricci’s evidence suggested that, at worst, anti-white racial bias was “in the air” in New Haven. To win, he would have to show that the New Haven Civil Service Board members who rejected the exam results were actually influenced by Kimber’s blustering.

A panel of the Second Circuit Court of Appeals affirmed the district court’s summary judgment for New Haven, and the Second Circuit denied Ricci’s petition for rehearing en banc. But the Supreme Court reversed in a contentious 5–4 opinion. Writing for the majority of the Court, Justice Anthony Kennedy insisted that New Haven “chose not to certify the examination results because … ‘too many whites and not enough minorities would be promoted’ … Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race.”³⁸ This violated Title VII even if New Haven rejected the exam to avoid disparate-impact discrimination as defined by that very law: “Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact [and] … amount to a de facto quota system.”

In a sharply worded concurring opinion, Justice Samuel Alito spent several pages describing Kimber’s influence in New Haven local politics and his attempts to pressure the city’s Civil Service Board to drop the exam. This, for Alito, was more than enough to raise the suspicion that New Haven scrapped the exam results in order to “placate a politically important racial constituency.” Alito’s comments echoed the popular understanding that Ricci involved yet another case of racial preference. Pundits rushed to sink their teeth into the familiar comfort food of an affirmative action controversy, trotting out the same shopworn arguments for and against racial preferences that had characterized the debate since the 1970s. But the dispute did not involve affirmative action, at least as conventionally defined. New Haven had not given and never planned to give black candidates for promotion preferential treatment; even if it opted for a new exam, the city would apply the same criteria to everyone. The real issue was more obscure, though no less long-standing than the debate over affirmative action. Ricci was an oblique attack on the very idea of disparate-impact discrimination. The disparate-impact theory has been controversial since the Supreme Court articulated it in 1971’s Griggs v. Duke Power Company. Unlike a claim of disparate treatment, a claim of disparate impact is proven by statistics. If an employment practice—such as the use of an exam for promotions—results in significantly fewer successful applicants of a given race, sex, religion, or national origin than random selection would, the practice has a disparate impact. The employer must then demonstrate that the practice measures skills directly related to the job in question. And even if the practice is job related, the employer is still liable for disparate-impact discrimination if there was an equally effective and less discriminatory alternative practice available.

In one sense, disparate-impact law is a logical extension of the prohibition of intentional discrimination. Intentional discrimination is difficult to establish: many plaintiffs with valid claims don’t bother to bring them or can’t prove their cases. Only the foolish employer announces his or her discriminatory intentions; the crafty may employ neutral rules that screen out members of disfavored groups. For instance, an employer that was biased against women might adopt a physical test of upper-body strength, knowing that it will eliminate many more women than men. Disparate-impact doctrine is designed to smoke out such discriminatory motivations by requiring the employer to defend the test. If the job in question doesn’t require extraordinary upper-body strength, the test is not job related and the employer is liable.

Disparate impact also requires employers to reconsider policies adopted for legitimate reasons, but with little thought to their effect on workforce diversity. In a sense, this does require a kind of “affirmative action”: the employer must take steps to ensure it selects the most inclusive workforce it can, consistent with legitimate job criteria. Conservatives object that this unduly burdens innocent employers. It involves the courts and regulatory agencies in the intricacies of businesses and enterprises with which they have little familiarity. The employer is best suited to determine whether or not a test or selection practice is job related, they complain—not judges or government bureaucrats. Free-market incentives amply punish employers who select employees irrationally. Judicial intermeddling and bureaucratic micromanaging waste the resources of employers, who must navigate a maze of regulations to defend innocent selection practices. Worst of all, the harried employer, faced with the threat of liability, may insulate itself by adopting quota hiring so as to avoid disparate impact altogether, rather than face the costly and daunting task of defending its practices. Rather than requiring employers to adopt the best test for the job, disparate-impact law would encourage them to hire less-qualified women and minorities in order to meet a de facto quota.

The conflict over disparate-impact law in Ricci demonstrates how vexed the notion of “discrimination” has become. Is it discriminatory to adopt a promotion exam that eliminates all the candidates of a given race when another selection process would yield a more representative workforce that’s just as qualified? Or is it discriminatory to care about the racial composition of the workforce one way or the other? Practically speaking, prohibiting practices with a disparate impact might sometimes encourage quota hiring. But not doing so will perpetuate the effects of past discrimination by inertia and leave a lot of hidden discrimination undetected. Which is worse? That’s a judgment call.

* * *

Ricci v. DeStefano became cannon fodder in the political skirmishes over the nomination to the Supreme Court of Sonia Sotomayor, who had joined a Second Circuit panel in rejecting Ricci’s appeal. Her opponents characterized the Supreme Court’s opinion in Ricci as a repudiation of Sotomayor’s judgment and evidence that she was unfit to ascend to the nation’s highest court. Popular opinion was with Frank Ricci—a dyslexic firefighter who took extraordinary measures to overcome his disability and score well on the promotion exam. Even liberal and left-leaning commentators questioned New Haven’s decision to drop the exam: for instance, the typically liberal Ta-Nehisi Coates of The Atlantic wrote: “It’s one thing to argue over criteria—say, should race play a role in college admissions?³⁹ It’s another thing to argue that after we’ve agreed upon a criteria, we should scrap the results because we don’t like how they look.” More conservative commentators were even less sympathetic. John McWhorter wrote for The New Republic that New Haven’s position—and by implication Title VII’s prohibition of disparate-impact discrimination generally—was part of a long and unfortunate line of “rhetorical contortions that excuse black people from challenging examinations.”⁴⁰ The vice-chair of the U.S. Commission on Civil Rights, Abigail Thernstrom, insisted in The Wall Street Journal that racial disparities in performance, however stark, “are not an argument for racial quotas.”⁴¹

Some conservative pundits and legal commentators complained that the Second Circuit tried to “bury” the Ricci controversy for ideological reasons, by affirming the lower court’s decision to dismiss the case on summary judgment without explanation in a per curiam opinion. But the district court was correct to reject Ricci’s claim. As Justice Ruth Bader Ginsburg pointed out in an angry dissent, there was no evidence that the Civil Service Board that rejected the exam was motivated by racial prejudice or the desire to placate New Haven’s black community. The status of the exam was hotly contested, and pressure came from all sides: some political constituencies pressed the city to accept the exam results, while others urged the city to reject them. At most there was evidence of racial favoritism “in the air” but no proof that it had hit the ground and affected the decision.

Ricci is a classic example of a case with bad facts that made bad law. It’s easy to sympathize with the plaintiffs in Ricci, who had their hopes of promotion dashed after months of preparation culminated in impressive performance on the promotion exam. And the background of ethnic conflict and political pressure raised legitimate concerns about basic fairness. But in order to reach the intuitively fair result in an idiosyncratic case with ambiguous facts, the Court created an ill-considered new legal standard that threatens both equal opportunity and legitimate employer prerogatives. Before Ricci, employers had a clear mandate under Title VII to avoid practices that screen out any racial group without a good reason. Now they must worry that correcting the unjustified racial effects of their practices—as the law still requires—may be unlawful discriminatory treatment: Justice Souter’s “damned if you do, damned if you don’t” bind.

To find salvation, an employer that wants to change a potentially discriminatory practice must have a “strong basis in evidence” that the practice violates the law before it can do so. What this means in practice is not entirely clear. A lot may depend on timing. Once an employer has administered an exam and established a promotional process, Ricci makes it very hard to change course. In theory, this seems reasonable: the employer should settle on the best way to evaluate candidates and stick to it regardless of the racial mix it produces. But in practice, the ideal method of evaluation is rarely obvious, and when it is, it’s often impractical. Evaluation of employees requires difficult trade-offs between efficiency and comprehensiveness and controversial judgments as to the relative importance of a host of different criteria. And many employers are not free to make these decisions based only on finding the best candidate for the job: instead, they must negotiate with current employees, unions, and, in the case of public employers, politicians and civil service laws.

New Haven faced all of these complexities and constraints when redesigning its firefighters’ promotion process. Promotions in the fire department had long been a source of controversy, and the city faced pressure from all sides. Although the majority in Ricci focuses only on lobbying by advocates for the black community, such as the artless Reverend Kimber, white firefighters lobbied just as hard and arguably more successfully: the firefighters’ union—which black firefighters complained was dominated by a white old boys’ network—demanded years earlier a written exam that would count for 60 percent of the total score, even though most other public safety agencies rely more heavily on oral examination and assessment centers, which evaluate candidates in simulations of real-life situations. A written exam is cheap and easy to administer, and it eliminates the risk of outright bias. This gives a written test the charisma of objectivity, even when the skills it measures aren’t the most important for the job in question. It’s easy to see why New Haven—faced with tense racial and ethnic division in the fire department and in the surrounding community—would agree to rely so heavily on the written test, even if it wasn’t ideal.

Title VII’s prohibition of disparate-impact discrimination is designed to be a counterweight to such pressures. Ideally, New Haven would have made sure it could defend its process as job related under Title VII before administering the exam. But New Haven couldn’t ensure that its process met the legal standard, because the most questionable parts of the process couldn’t be changed: the union insisted that the city use a heavily weighted written exam, and the city charter required that it select from among the three top-scoring candidates for each open position. New Haven had no choice but to press ahead, under constraints that may well have violated Title VII, and hope for the best. When the exam results excluded all of the black candidates for promotion, the city knew it had a problem. It was clear that the process had a disparate impact, and as New Haven’s corporation counsel, Victor Bolden, admitted, the weighting and ranking made it “hard to defend” as job related.⁴²

After Ricci, New Haven accepted the exam results and promoted a group consisting almost entirely of white fire captains and lieutenants. Sure enough, only a few months later, a black New Haven firefighter, Michael Briscoe, filed a disparate-impact lawsuit against the city. Briscoe received the highest score of any candidate on the oral portion of the lieutenant’s promotion exam. But on the written part of the test, Briscoe—like most black candidates for promotion—did comparatively badly. He wasn’t eligible for promotion, because the city based 60 percent of each candidate’s score on the written exam. According to Briscoe, had the city followed the more common practice of public safety agencies and given the oral part of the exam more weight, he would have been one of the top-scoring candidates, easily eligible for promotion.⁴³

Justice Kennedy’s opinion in Ricci tried to head off just this type of lawsuit: “In light of our holding today it should be clear that the City would avoid disparate-impact liability [because] … had it not certified the results, it would have been subject to disparate-treatment liability” for discriminating against the white test takers. But this is far from clear. In Ricci, the Court held that New Haven did not have sufficient evidence that the exam had an unlawful disparate impact to justify dropping it. But that doesn’t mean that the evidence doesn’t exist. New Haven’s failure to gather that evidence can’t foreclose Michael Briscoe’s attempt to prove that the city discriminated against him.

New Haven may be caught in Justice Souter’s “damned if you do, damned if you don’t” bind despite the best of intentions. There’s little evidence to suggest that New Haven sought to disadvantage white firefighters. But, as Justice Kennedy insisted, the city “chose not to certify the examination results because of the statistical disparity based on race … Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race.” This was enough to damn New Haven.

This kind of confident and categorical condemnation should be familiar. It’s what allowed Roy Den Hollander to attack ladies’ night and justified a lawsuit to stop Mother’s Day. It led Professor Banzhaf to treat separate men’s and women’s restrooms as a civil rights violation, encouraged Christine Craft to sue over gendered grooming standards in an image-conscious and implicitly gendered job, and led Darlene Jespersen to think the best reaction to a rule requiring makeup was to invest in litigation instead of lipstick. It’s tempting to condemn discrimination indiscriminately because doing so promises to slice through messy and difficult political and social conflict with a razor-sharp efficiency. But too often this razor cuts off the nose to spite the face.

Many liberals and conservatives adamantly support such categorical rules against discrimination—though usually each in different contexts. And some members of both camps vociferously oppose them. For instance, many conservatives insist that a categorical antidiscrimination rule prohibits affirmative action, but many of the same people defend racial profiling based on the cold hard facts about race and crime and defend many sex-based distinctions as natural and commonsensical. There are reasonable arguments for careful and limited racial profiling, sex-specific dress codes, and sex-segregated bathrooms, but to make them, one must reject categorical rules against discrimination and turn to more fact-specific, nuanced judgments.

Many liberals insist on categorical prohibitions that apply only in the case of discrimination against “disadvantaged groups,” pointing out that the reasons to abhor discrimination apply only in those cases where the group in question has faced widespread and systematic disadvantages in the market or the political process. This is a sensible argument, except that it undermines the case for a categorical prohibition generally. If it makes sense to limit the legal prohibition of discrimination to disadvantaged groups, that’s because discrimination per se isn’t really the problem—it’s a symptom of the real problem: widespread prejudice and systematic disadvantage. It follows that we should prohibit discrimination only when it reflects or exacerbates widespread prejudice or systematic disadvantage and regardless of the identity of the victim. Ladies’ nights and sex-exclusive restrooms don’t reflect prejudice or further widespread disadvantage. Gendered dress codes and grooming rules can be closer calls, but it’s doubtful that all such distinctions systematically undermine equality.

In this respect, Justice Alito’s concurrence in Ricci got at the real issue in that case: the possibility that ethnic and racial politics in New Haven distorted the promotions process in the fire department, to the systematic disadvantage of whites. If New Haven dropped the exam because blacks had gained the upper hand in local politics and could systematically disadvantage whites, Frank Ricci deserved to win his civil rights lawsuit for discrimination. Because the lower courts never fully evaluated this claim, it would have been best to send the case back to the district court for further proceedings, as Justice Ginsburg suggested in her dissent. Instead, the Court sidestepped what should have been the central question in the case, and settled on a categorical condemnation of discrimination that defies common sense and perverts the spirit of civil rights.

Congress understood that it’s necessary to consider race in order to avoid and reverse the effects of racism. Because people rarely announce their illegal motives, and because seemingly innocent practices can lock in the effects of past discrimination, often the only way to spot inequality of opportunity is to look for lopsided results. That’s why the law allows discrimination plaintiffs to prove their cases with statistics. If a workforce has a far smaller proportion of women or minorities than the qualified labor pool, we might infer a pattern of discrimination, even if the plaintiff can’t prove every specific case of discriminatory intent. And if a practice screens out a disproportionate number of women or minorities and the employer can’t show that it’s job related, we’re entitled to suspect that the practice needlessly perpetuates historical biases and disadvantages. Both of these well-established legal standards require courts and employers to consider sex and race. That doesn’t mean that the employer must adopt a quota. Because job qualifications, interest level, and diligence may differ across social groups, statistical lopsidedness isn’t a civil rights issue in and of itself. But it may be a symptom of discrimination, suggesting that a more thorough examination is in order.

After Ricci an employer must build a Title VII disparate-impact case against itself before reexamining and changing possibly discriminatory practices. To do so is risky: because the legal standards are ambiguous and fact specific, an employer can rarely be certain that it has a “strong basis in evidence” that a questionable practice is discriminatory. If the employer drops the practice, it may be liable for disparate treatment under Ricci. If it follows through on the practice, it will have helped to build the factual record for a plaintiff in a disparate-impact lawsuit.

Some of the Ricci opinion’s language suggests that the holding is limited to cases in which an employer tosses out the results of a test after it has been administered. But that’s not clear: the logic of Ricci would seem to apply more broadly. If it’s discriminatory to discard the results of an employment exam in order to avoid a racial imbalance, isn’t it also discriminatory to choose one exam over another in order to avoid such a racial imbalance in the first place? If an employer chooses Exam A instead of Exam B because Exam A is more likely to increase the number of successful minority applicants, the members of the disfavored racial groups may well have a reverse-discrimination case similar to Frank Ricci’s. Employers now must walk a knife’s edge between contradictory mandates under civil rights laws. To keep their balance, many will be forced to spend more than ever on “validation” consultants and experts to establish an evidentiary record validating tests before they adopt them, or invalidating tests before they reject them.

Because the Supreme Court typically interprets Title VII’s prohibition of race discrimination to match the Fourteenth Amendment’s similar prohibition of racial classifications and vice versa, Ricci puts a wide range of race-conscious policies under a legal cloud. Consider, for instance, the vaunted “Texas 10 percent” admission policy, developed to replace the University of Texas’s affirmative action policy after it was held unconstitutional. The university now admits any student in the top 10 percent of his or her public high school class, and because so many of the public schools in Texas are racially segregated, this guarantees a racially diverse student body. Opponents of race-conscious affirmative action have pointed to this policy as an example of a viable, race-neutral alternative. But no one denies that a motivation for dropping the traditional admissions criteria in favor of the 10 percent plan is to achieve a better racial mix. If we extend the logic of Ricci, this looks like impermissible race discrimination against the students who would have been admitted under the old criteria, just as dropping the firefighter promotion exam was impermissible race discrimination against the white firefighters who would have been promoted. And why stop there? Even recruitment efforts aimed at underrepresented minorities are designed to increase the representation of those groups in workforces and entering classes with a limited number of openings. If these outreach efforts are successful, some minorities will necessarily displace some whites who would otherwise have been hired or admitted. Are those efforts discriminatory, too?

One could say that any effort to combat racial inequality is itself race conscious and therefore discriminatory. Opponents of gay rights have made just such an argument, attacking laws that prohibit discrimination on the basis of sexual orientation as “special rights.” In 1996, in Romer v. Evans, the Supreme Court invalidated a state constitutional amendment in Colorado that eliminated civil rights for homosexuals statewide. Justice Scalia, in dissent, described the amendment as “merely prohibiting … special protections” and insisted that the basic civil rights banned by the amendment gave gay men, lesbians, and bisexuals “favored status because of their homosexual conduct.”⁴⁴

Of course, for the gay person looking for a job or an apartment and facing bias at every turn, basic protection against discrimination doesn’t seem like favoritism. But taken out of their social and historical contexts, all civil rights can be made to look like special privileges. Civil rights laws aren’t just applications of abstract principles of justice; they also reflect policy decisions about how to best direct the scarce resources that must be dedicated to the enforcement of the law and the litigation of disputes. Federal law doesn’t demand that employers treat all of their employees fairly in every respect; it prohibits only unfairness that’s based on race, color, sex, religion, national origin, age, and disability. (I hope we’ll add sexual orientation to this list soon.) No one doubts that civil rights laws were intended to, and do in fact, disproportionately benefit those groups most likely to suffer from the prohibited types of discrimination: racial minorities, women, religious minorities, the elderly, the disabled.

So is it discriminatory to prohibit discrimination? Of course not. This country has a long and ugly history of specific types of discrimination, such as discrimination on the basis of race. Although things have changed for the better, racism isn’t a thing of the past yet. And the continuing effects of past racism still limit opportunities for many racial minorities today. Addressing these injustices isn’t doing anyone a special favor; it’s simply doing justice. The majority in Ricci ignored more than three decades of judicial precedent and the explicit endorsement of Congress, which wrote disparate-impact law into Title VII in 1991, but worse yet, it ignored the social and historical context that define and must guide civil rights law. Without attention to context, the civil rights ideal of nondiscrimination is self-consuming: one must discriminate to decide what types of discrimination to prohibit. Stripped of the human experiences that give them meaning and moral weight, civil rights can easily turn against themselves and against social justice. The logic that condemned New Haven’s awkward but defensible attempt to avoid the discriminatory effects of its promotion exam can be extended to condemn any attempt to prevent any form of discrimination. It will take only a sympathetic plaintiff, a hapless defendant, some bad facts, and some clever lawyers to make even the most well-established civil right look like a special privilege.

For Judgment

I’ve argued for a socially responsible, commonsense approach to legal rights. The common person should use common sense when asserting his or her rights and eschew extreme, antisocial, or trivial claims. Judges should use good judgment guided by appropriate social goals and a subtle evaluation of the limits of the law, and reject ill-advised, perverse, or selfish claims of right, separating deserved entitlements from rights gone wrong. Each of these ideas rejects a rigid, rule-like approach to the civil rights tradition in favor of a more supple approach that acknowledges the necessity of trade-offs and requires the discretion of decision makers.

This may strike suspicious minds as a bad idea: If rights are supposed to protect us from the biases of the powerful, how can we allow the powerful to define rights? It’s a valid concern: sometimes it can be hard to tell the difference between common sense and common prejudice. It was common sense in the 1950s that the best jobs and neighborhoods should be explicitly reserved for whites. Until recently, it was common sense that women were the weaker sex and needed to be cloistered in the suburban home, away from the rigors of the market economy. It’s still common sense among too many people that homosexuality is a sin against God and nature. Legitimate worries about what passes for common sense lead many people to put their faith in rigid rules and absolutes that can ensure that justice isn’t subject to the whim of the powerful or the majority.

But rights can’t rescue us from our own biases and ignorance. In fact, legal rights—even those guaranteed by the Constitution—rarely change or thwart public opinion; they almost always follow it. For instance, racial attitudes in the United States didn’t change because of Brown v. Board of Education or other legal victories: the legal victories were possible because of changed attitudes. American racial attitudes improved in the mid-twentieth century as a result of the experience of World War II, while national politics began to shift toward racial justice in response to geopolitical pressures.

Most Americans saw World War II as a war against Nazi racism. And yet when black soldiers returned from war, they often reported receiving better treatment at the hands of the enemy in Vichy France or Mussolini’s Italy than in their home country. In 1946 a Georgia mob shot and killed George Dorsey—a GI recently returned home after five years of service—along with his wife and two companions in what can only be called an execution. Racist lynchings were, tragically, not uncommon in the mid-century American South. But Dorsey’s case sparked an extraordinary public outcry. Letters and telegrams of protest flooded into the Department of Justice. National newspapers decried the incident. The California senator William Knowland read a denunciation of the event into the Congressional Record. “Such things must not continue in the United States of America,” he insisted. Something in American race relations—and something in American common sense—had begun to change.

Even in the recalcitrant South, public opinion was already turning against Jim Crow segregation by the time Brown v. Board of Education was decided. As the legal historian Michael Klarman points out, “By the early 1950s, many southern cities had relaxed Jim Crow in public transportation, police department employment, athletic competition, and voter registration.”⁴⁵ Meanwhile, Jim Crow racism had become a serious liability for the national image overseas. As the leader of the free world, the United States promoted its traditions, values, and institutions, contrasting them to the totalitarianism of communist governments. But racism was a conspicuous blemish on the face the government wished to present to the world. Nonwhite foreign dignitaries faced discrimination when visiting the United States. Foreign newspapers covered incidents of American racism. The Soviet Union highlighted American racism in its efforts to convince the third world to embrace communism and reject the West. A 1948 New York Times article noted that the United States was “the most powerful spokesman for the democratic way of life, as opposed to the principles of a totalitarian state. It is unpleasant to have the Russians publicize our … lynchings, our Jim Crow statues and customs … but is it undeserved?”⁴⁶

Common sense began to change as a result of these events. And legal rights changed in direct response to the evolution of popular opinion. Without these changes, the civil rights movement would not have enjoyed the success it did in the following decades. The civil rights movement nurtured and capitalized on these changed attitudes. The genius of Martin Luther King Jr. was that he understood and tapped into the change in common sense that led Americans to protest, rather than celebrate or quietly accept, the murder of George Dorsey. By leading hundreds of dignified, well-dressed, determined, and peaceful blacks on marches and in sit-ins, King appealed to the better angels—and the better judgment—of the American people.

It would be preferable, of course, if we didn’t have to rely on common sense. When “common sense” is really common prejudice, it can be slow to change. Rights seem to offer an escape from the caprice of ordinary human judgment. It’s oddly comforting to insist that slavery and Jim Crow violated the rights of blacks all along, even if it took the courts centuries to recognize it. It seems to follow that close enough attentiveness to rights will help us to avoid injustices today. But this has the relationship between rights and social consciousness exactly backward. Rights don’t help us to identify injustices that we otherwise would not have; instead, we identify the injustice and then conclude that it violates rights. At best, rights are a way of talking about and bearing in mind the commitments that we already hold for other reasons. The legal scholar Patricia Williams writes that “rights are to law what conscious commitments are to the psyche.”⁴⁷ But that’s a bit too strong. Rights are really no more than a symbol of our commitments: the right to “equal protection of the laws” symbolizes our rejection of wrongful social hierarchy in the same way that a string tied around a finger symbolizes my promise to buy coffee and milk on the way home from work.

Robert Post, now the dean of Yale Law School, makes this point nicely in the context of legal rights against discrimination:

Antidiscrimination law is itself a social practice, which regulates other social practices, because the latter have become for one reason or another controversial. It is because the meaning of categories like race [and] gender … have become contested that we seek to use antidiscrimination law to reshape them …⁴⁸

Moral and ethical commitments do not follow from rights; commitments come first, and rights follow. And every successful application of our civil rights tradition depends on good judgment. Judges—and ideally potential litigants as well—must decide when the commitments underlying a legal right demand change and when they suggest restraint. It’s rare that this is a matter of mechanical application of a simple rule to a set of facts.

Even though judges must use judgment, they don’t just make up the law as they go along. A judge applying a legal right—even when it’s as vague a guarantee as “equal protection”—is constrained by previous interpretations of the same legal right and by a tradition of interpretation that is reasonably well understood by his or her peers. Just as there are sound and convincing interpretations of literature as well as frivolous or incompetent readings, there are also skilled and inept interpretations of legal rights. Sound legal practice is not primarily a matter of mechanical rule application; instead, it requires the exercise of sound judgment, studied expertise, and common sense in interpreting and applying the law. Inept applications of the law will typically be reversed on appeal or roundly criticized by others in the legal community. The prestige of the courts depends on their reputation for evenhanded and competent jurisprudence: no judge—not even a Supreme Court justice—can afford to write too many opinions that are too far outside the accepted judicial practice. But this doesn’t mean there’s always one clear right answer. There are often several plausible interpretations of the same legal rule or principle. Again, the judge must exercise his or her own judgment in order to apply the law well.

Too many people, misled by simplistic metaphors likening judges to umpires and the law to a rule book in a game, seem to think that a judge can just apply the law to the facts without her own wisdom and judgment playing a role. The charge of “judicial activism” is sure to follow any public statement that acknowledges the centrality of human moral, ethical, or practical evaluation in adjudication. For instance, when the Supreme Court justice Sonia Sotomayor endured the extended public hazing that now passes for the confirmation process before the U.S. Senate, she was repeatedly asked to repudiate President Obama’s suggestion that a justice of the Supreme Court should have empathy. Sounding the same absurd and tired theme that they have for decades, Republicans accused Sotomayor of endorsing “judicial activism” when she said, in a public lecture, that federal court judges “make policy.” She prudently repudiated the statement, as the theater of the moment required. But it’s perfectly clear that any judge charged with the interpretation of intentionally vague and ambiguous statutes and constitutional provisions articulated at the highest possible level of generality must “make policy.” Because the judge’s opinion will serve as precedent in future similar disputes, she must think through the more general consequences of the legal rule she articulates in the specific case, much in the way a policy maker must think through the general consequences of a new piece of legislation. And it’s equally clear that a good judge must empathize with the litigants that come before her. In fact, policy making and empathy are the two bookends of sound judicial practice: a judge must consider the broader policy implications of the case before her, but she must also not lose sight of its immediate human stakes for the people immediately involved.

The importance of value judgment and good sense frightens many people, who worry that judges will simply decide cases according to their personal political preferences—that we will have the rule of men instead of the rule of law. In 1962 the legal scholar Alexander Bickel, writing about Brown v. Board of Education, worried that “when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the … people…; it exercises control, not on behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually happens … And it is the reason the charge can be made that judicial review is undemocratic.”⁴⁹ Bickel’s concern is a valid one, which still haunts constitutional law today: there are plenty of examples of both liberal and conservative judges who have abused their authority. This explains the appeal of the idea that judges vindicating rights should instead simply apply strict and unambiguous rules, like an umpire in a baseball game.

The soft constraints of interpretive custom and the sanction of one’s peers seem insecure compared with the ideal of the strict letter of the law. But the alternative—a judge who mechanically applies strict rules without nuance, common sense, or empathy for those affected—is much worse. Consider Shylock’s rigid demand for a pound of Antonio’s flesh in The Merchant of Venice and the judge’s equally formalistic reply that Shylock is entitled to the pound of flesh, but may not spill a drop of blood. Of course there is a type of poetic justice in this verdict: he who insists on the letter of the law must conform to its letter. But isn’t this really an example of the law at its worst? An inhuman system of rules applied without common decency (in the case of Shylock’s monstrous but formally justified demand for a pound of Antonio’s flesh) or common sense (in the case of the judge’s decree that Shylock take the pound of flesh but not a drop of blood). Shylock could, in a more sensible legal system, justly insist that the contract for a pound of flesh necessarily implies the spilling of blood; Portia, on Antonio’s behalf, could insist that Shylock’s inhumane contract violates equitable principles, yet he seeks equitable relief from the strict terms of his own poorly drafted agreement—he who seeks equity must do equity.

Let’s consider a realistic defense of a judicial role, without “mystic overtones,” as Professor Bickel would have it. The purpose of judicial review is to allow well-educated and (hopefully) civic-minded elites who are relatively insulated from short-term politics to overrule the popular branches on occasion. Through constitutional review of legislative and executive action, the federal courts occasionally temper the excesses of representative government and more occasionally jump-start needed but stalled political reform. Antidemocratic? Perhaps, but republican in the best Madisonian tradition. Similarly, when courts interpret rights created by an act of legislation, their role is to take the necessarily vague and general prescriptions of the legislature and apply them in specific cases, using their own judgment and good sense to ensure that the results balance individual fairness and the public good. The Supreme Court justice John Paul Stevens described this cooperative relationship between legislatures and courts to The New Yorker’s Jeffrey Toobin: “[As a lawyer for the House Judiciary Committee] I remember explaining one of the tricky problems in the statute to one of the members of the committee … He said, ‘Well, you know, let’s let the judges figure that one out’ … The legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself.”⁵⁰

At their best, judges are not like umpires, because the law is not a game with a few strict rules and petty stakes. The law must grapple with the full range and complexity of human conflict, where stakes are usually high and sometimes dire and the impractical ideal is often the enemy of the attainable good. The law trades in tragic compromises and the lesser of evils. The challenges of the judge mirror not the prim precision of a strike zone but the wrenching conflicts of a triage ward. There is no such thing as law without human reason (and, unavoidably, human error) or judging without human judgment.