5

Righting Rights

Wal-Mart, famous for its everyday low prices and notorious for its everyday low wages, epitomizes many of the twenty-first century’s defining social controversies. To its many detractors, it is the predatory big-box chain store that drives small businesses under and exacerbates suburban sprawl; the mass retailer that encourages a soulless and ecologically destructive habitual consumption of disposable products; the avaricious multinational corporation that exploits the land and the labor of developing nations; and the skinflint employer that pays its workforce a poverty wage. In this last respect, Wal-Mart’s influence has been profound: Wal-Mart is the largest employer in the United States; with 1.4 million employees, it sends paychecks—such as they are—to more people than live in any one of ten American states.

Sam Walton was opening his first stores in Arkansas at just the time mechanization was replacing agricultural labor across the Ozarks. Walton stepped into the role of straw boss, offering unemployed former farmhands the jobs of the future at fifty cents an hour. According to the historian Nelson Lichtenstein, when Congress extended the minimum wage to retail employers in 1965, Walton responded with the ingenuity that would make Wal-Mart a market leader: the minimum wage law applied only to businesses with $250,000 or more in annual revenues, so Walton divided his business into smaller corporations that would fall under the statutory threshold. A federal court saw through the scheme and ordered Walton to compensate his employees retroactively. Walton had no choice but to pay up, but he also dug in with the tenacity that employees and suppliers alike would come to know and fear; he delivered a warning along with the back pay: “I’ll fire anyone who cashes the check.”¹

Wal-Mart’s Southern roots, scofflaw tendencies, and plantation-style labor practices seem a recipe for rampant discrimination. Indeed, Wal-Mart has faced more than its share of complaints. For instance, in 2009 the Equal Employment Opportunity Commission (EEOC) settled a discrimination suit brought by black applicants for jobs as truck drivers for $17.5 million, and in 2010 African employees of a Colorado Wal-Mart complained that a manager remarked, “Wow, there are a lot of Africans … I don’t like some of the faces I see here. There are people in Eagle County who need work.”²

Wal-Mart’s early efforts to improve its image were largely cosmetic and backfired badly. The company hired the former Atlanta mayor and U.S. ambassador to the United Nations, Andrew Young, as a spokesman for the company’s community service programs. After six months on the job as goodwill ambassador, Young told a reporter for the Los Angeles Sentinel, one of the nation’s oldest and largest black-owned newspapers, that Wal-Mart was performing a community service by displacing local grocers: “[Wal-Mart] ran the ‘mom-and-pop’ stores out of my neighborhood … Those are the people who have been overcharging us—selling us stale bread, and bad meat and wilted vegetables … I think they’ve ripped off our communities enough. First it was Jews, then it was Koreans and now it’s Arabs.”³ In a single sentence the former diplomat managed to offend three distinct ethnic groups and confirm Wal-Mart’s image as a predatory mass retailer bent on destroying its smaller competitors. More recently, Wal-Mart has made greater efforts to increase minority hiring and mentoring and to use women- and minority-owned suppliers; as a result, Wal-Mart has begun to change its image as a postmodern plantation employer.

But Wal-Mart’s most serious civil rights problem is sexism. Wal-Mart appears to have had little success in changing widespread patriarchal attitudes among its managers. According to the American Prospect editor and Washington Post columnist Harold Meyerson, “The Southern traditionalism of Walton and his lieutenants dictated that the stores’ managers would be men and its salesclerks women.”⁴ Because over 90 percent of Wal-Mart’s cashiers are women, sexism would affect far more people than other forms of discrimination, even if it was no more pervasive or severe in degree. Not surprisingly, then, sexism has become a serious financial liability for Wal-Mart, as the company has faced numerous discrimination lawsuits. In one of the more recent, the EEOC sued Wal-Mart, claiming that the company’s London, Kentucky, distribution center systematically excluded women from warehouse jobs. On March 1, 2010, Wal-Mart agreed to pay $11.7 million to settle the suit out of court.

That’s small change compared with what Wal-Mart might have paid if Betty Dukes had had her way. Dukes worked for Wal-Mart in Pittsburg, California, a working-class city about thirty miles east of San Francisco. She had been on the job for seven years and sought promotions that, she claimed, went to less-qualified men. Dukes claimed that women were routinely assigned to stereotypically feminine departments, such as baby clothing, and excluded from masculine departments, such as hardware. “I can mix a can of paint,” she complained. “I want a chance to do it.”⁵ According to Dukes, openings for managerial positions were never announced and were filled by men before she could apply. In 2001, Dukes, along with six other women, sued Wal-Mart in a class action lawsuit filed on behalf of every woman who worked for the company since 1998—roughly 1.5 million women. Had it been allowed to proceed, this would have been the largest class action lawsuit in American history and could have cost Wal-Mart billions of dollars; Wal-Mart’s 2009 annual report to shareholders deadpanned that “the Company cannot reasonably estimate the possible loss or range of loss that may arise from the litigation.”⁶

Class action litigation is the bête noire of critics of American litigiousness. The class action lawsuit allows the ambitious attorney to sue on behalf of hundreds, thousands, or—as in the case of Dukes v. Wal-Mart Stores, Inc.—millions of people without ever meeting most of them, much less consulting them or getting their agreement. You’ve almost certainly been involved in such a lawsuit, whether you wanted to be or not. You probably didn’t even find out about it until after the litigation had ended or had been settled, when you received a cryptic letter in the mail, informing you of the good news that several million dollars had been obtained on behalf of you and other people like you. Hopefully, you didn’t rush out and buy that Ferrari before reading the fine print: your share after attorneys’ fees had been deducted was probably a coupon good for $10 or $15 worth of the defendant’s products. Here’s an example of a settlement notification for a case brought on my behalf:

If you purchased an uncoated Apple First Generation iPod nano, you could be entitled to benefits under a class action settlement … To qualify, you must have purchased … a new … iPod nano and experienced scratching of your iPod nano that impaired your use or enjoyment of your iPod nano …

Apple denies all allegations in the Lawsuit … [but] is entering into this settlement to avoid burdensome and costly litigation …

Apple has agreed to provide a total cash settlement fund of $22.5 million … After payment of all notice and administration costs, Plaintiffs’ counsel’s attorneys’ fees and expenses … payments of $15 will be distributed to Settlement Class Members.⁷

Like a lawsuit over a scratched iPod, almost any mishap or slight can wind up in litigation. Class action lawsuits have been filed on behalf of almost every imaginable injured party: victims of tainted food, substandard pharmaceuticals, misleading advertising, faulty products, dishonest lending practices, and, of course, civil rights violations. Once a class action is filed, the plaintiff class must be approved or “certified” by the court. Under rule 23 of the Federal Rules of Civil Procedure, a valid class must satisfy four criteria: (1) the class must be so large that it’s impractical to include all of the class members as named plaintiffs in a joint lawsuit; (2) all of the class members must have similar legal claims or claims that turn on common factual questions; (3) the claims of the named plaintiffs must be typical of those of the rest of the class members; and (4) the named plaintiffs must be trustworthy to represent and protect the interests of the class as a whole. As the scratched-iPod lawsuit suggests, many class actions seem designed to benefit plaintiffs’ lawyers, who collect handsome fees for themselves, more than class members, who wind up with minuscule cash settlements or coupons good for more of the defendant’s presumably shoddy products. But even in these cases, class action litigation can have social benefits: the threat of litigation encourages businesses to make safer and more reliable products and frightens them into treating their employees fairly.

Class actions have long been one of the most important civil rights enforcement tools. Class actions are a natural fit for civil rights litigation because the deterrent effects of any antidiscrimination case benefit everyone who might suffer the type of discrimination involved. In the 1960s and 1970s, federal courts opined that “racial discrimination is by definition a class discrimination.”⁸ When the Civil Rights Act was in its infancy, many large employers had widespread discriminatory practices that affected numerous employees. Some had only recently eliminated formal segregation, overt racial exclusion, and separate pay scales in response to Title VII; in practice, these policies continued, and the attitudes responsible for them still influenced decision making. The civil rights plaintiff acted as a “private attorney general” enforcing the law for everyone who shared his or her social status.

Is the Wal-Mart of the new millennium like the discriminatory employers of the sixties and seventies? Betty Dukes and her co-plaintiffs claimed that Wal-Mart systematically discriminated against women in pay and promotions. They pointed out that almost three-fourths of Wal-Mart’s hourly wage sales employees are women; by contrast, only about a third of its managers are. They argued that Wal-Mart’s executives in Bentonville, Arkansas, set the tone for all of the thirty-four hundred stores in the United States—the same tone of traditional Southern chauvinism and contempt for civil rights laws that Sam Walton exhibited in the 1960s. They gathered declarations by 120 women who said that they were victims of sex discrimination at Wal-Mart. And they enlisted the sociologist William Bielby, who claimed that Wal-Mart’s employment practices are especially vulnerable to the influence of sex stereotypes because they leave personnel decisions to local store managers, who use subjective criteria of evaluation such as “teamwork, ethics, integrity, and the ability to get along with others.”

Not surprisingly, Wal-Mart denied all of this. “We don’t have policies and practices in place that promote discrimination of any kind,” Wal-Mart’s spokesman Bill Wertz insisted.⁹ Wal-Mart and its supporters insisted that the Dukes plaintiffs couldn’t point to any specific discriminatory company-wide policies or practices; instead, they cited isolated and “widely divergent” anecdotes and a vague hypothesis of a monolithic corporate culture to conjure up the specter of a common pattern of discrimination.¹⁰ According to one observer, the plaintiffs’ claims amounted to little more than “accusations by women that supervisors, including female supervisors, made disparaging remarks about women workers—something entirely possible in a company of more than 1 million employees … There is nothing in this collection of anecdotes that amounts to a company-wide pattern of discrimination.”¹¹

Wal-Mart insisted that the Dukes class should not be certified. The class members had nothing in common other than their gender and their employment at Wal-Mart. Even if the anecdotal claims of the class representatives were true, they didn’t establish that the women had been victims of a common policy; instead, they showed, at most, that they had been victims of different, isolated acts of discrimination, for which each injured woman could bring a separate lawsuit. Betty Dukes complained that she was demoted in retaliation for earlier complaints of discrimination; another plaintiff, Patricia Surgeson, claimed that she was sexually harassed; another, Cleo Page, was quickly promoted to manager but denied subsequent promotions and paid less than a man with less seniority; another was fired after being accused of “stealing time” and claimed retaliation for earlier complaints of discrimination.¹² These claims involved different theories of liability and different contested facts and were susceptible to different defenses.

If Wal-Mart had exercised tight centralized control over personnel decisions, any gender imbalance could have been attributed to systematic bias among the upper management in Bentonville, Arkansas. If it had promulgated detailed objective rules for personnel decisions, perhaps the rules themselves could have been attacked as discriminatory in effect. Either of these scenarios might have justified a class action attacking practices or rules that affected all Wal-Mart employees nationwide. But Wal-Mart did not control personnel decisions centrally: it left them to the discretion of local managers, who, like many managers in the service industries, employed vague and subjective criteria such as “integrity” and “team spirit.” Such decentralized management is less susceptible to a firm-wide class action because each store arguably operates under its own decision-making regime. Even if many Wal-Mart employees suffered sex discrimination, if each individual store has its own distinctive personnel practices, there are no questions of law and fact common to all of the victims.

The plaintiffs struggled to make the square peg of Wal-Mart’s decentralized and subjective personnel decision-making process fit the round hole of a class action with an injury common to all class members. They insisted that Wal-Mart had a centralized corporate culture—if not a centralized decision-making process—that affected all 1.5 million women who had worked at Wal-Mart since 1998. And how did Bentonville’s ethos of sexism make its way to Wal-Marts from Maine to Modesto? Through decentralization of control over personnel decisions that left them “vulnerable” to the influence of sex stereotypes. The plaintiffs wanted to have their centralization and eat it too: on the one hand, Wal-Mart was so centralized that a monolithic corporate culture affected decisions nationwide; on the other, it was so decentralized that individual managers could do whatever they pleased. One commentator complained of a “contradiction in describing a corporate system as both excessively subjective and at the same time centralized” and worried that under the plaintiffs’ legal theory “decentralization in management, which has been one of the core productivity-boosting principles of American business in the last two decades, becomes something that companies must avoid or limit.”¹³

But the core of the plaintiffs’ discrimination case was statistical. Wal-Mart draws most of its managers from its hourly wage employees, of which 72 percent are women. But only one-third of Wal-Mart’s managers are women, and “even this figure overstates the proportion of female managers [because it] … includes traditionally ‘female’ positions, such as assistant managers … the lowest level of managers … Women comprise less than 10% of all Store Managers and approximately 4% of all District Managers … There is only one woman among the 20 executive officers of the company.”¹⁴ By contrast, “among [Wal-Mart’s] 20 top competitors, women comprise over 56% of management … In fact, female representation among managers at Wal-Mart is at a substantially lower level today than [it was] among Wal-Mart’s competitors in 1975.”¹⁵

The Dukes class action would have severed the question of Wal-Mart’s blameworthiness from the question of any individual woman’s right to compensation. According to the trial plan established by the district court:

Plaintiffs would attempt to prove that Wal-Mart engaged in a pattern and practice of discrimination … [Then] … a formula would be used to calculate the “lump sum” … that Wal-Mart owes to the class … A separate procedure would then be used to distribute those lump sums to those class members entitled to share in them—a stage in which Wal-Mart would no longer have an interest.¹⁶

The district court sensibly concluded that although it might be able to determine whether or not Wal-Mart is guilty of discrimination, it would not be able to determine which women were victims of discrimination and which were not. The class action would allow the court to order Wal-Mart to change discriminatory practices and to impose monetary damages in order to deter potential future discrimination by Wal-Mart and other employers.

But Wal-Mart complained that the class action mechanism was unfair to individual women. Opponents of the trial plan argued that this process “virtually guarantees non-victims will share in a monetary damage award along with those truly harmed by Wal-Mart’s alleged discrimination.”¹⁷ As the Ninth Circuit judge Andrew Kleinfeld—who voted to stop the lawsuit from going forward—argued:

Women employed by Wal-Mart who have suffered sex discrimination stand to lose a lot if this sex discrimination class action goes forward. All the members of the class will be bound by the judgment … Women who have suffered great loss because of sex discrimination will have to share the punitive damages award with many women who did not … Women who have left Wal-Mart will get injunctive and declaratory relief of no value to them, while new female Wal-Mart employees will benefit from the injustice done to other women.¹⁸

Wal-Mart also argued that a class action would deprive it of many of its defenses under federal civil rights law. For instance, in an individual case, Wal-Mart could avoid paying money damages by showing that a decision that was influenced by sexism would have been the same even without the sexism. In the sex harassment context, Wal-mart could defend itself by showing that it had an internal process in place to deal with sex harassment complaints and the plaintiff unreasonably failed to use it. The class action plan didn’t allow for such individual defenses.

But such individualized defenses are irrelevant in a case argued largely on the basis of statistics. Despite the Dukes plaintiffs’ anecdotal evidence of discrimination, theory of a centralized and sexist corporate culture, and sociological evidence that Wal-Mart’s organizational structure is “vulnerable” to influence by stereotypes, the case would stand or fall on the statistical evidence. It’s fair to infer discrimination from an inexplicably lopsided workforce. Of course, if Wal-Mart could offer a convincing alternative explanation, it would avoid liability; if it could offer evidence that partially explains the disparity, its liability would be reduced accordingly.

In a sense, Dukes v. Wal-Mart was a back-to-the-future civil rights case, using a now-disfavored type of litigation and an older conception of what civil rights litigation should accomplish in order to confront a very contemporary social problem. Shortly after the Civil Rights Act was passed in 1964, the class action was one of the most important types of discrimination litigation. Legal challenges to a pattern and practice of discrimination—a collective injury—have been at the center of civil rights litigation since the early 1970s. The law against disparate impact—widely considered one of the most important parts of employment discrimination law for years after it was established in 1971—addresses a group-based injury. As late as 1978, legal commentators considered the individual civil rights case a relatively minor part of civil rights enforcement. Early civil rights cases saw individual rights as a means to the end of equal opportunity for everyone: the individual plaintiff was considered a “private attorney general” who basically reinforced collective efforts.¹⁹

The prestige of these collective civil rights claims suffered in the 1980s. Legal changes made class actions more difficult to bring, and by 1988 the official reporter of the Federal Rules of Civil Procedure could opine that “class actions had their day in the sun and kind of petered out.”²⁰ Meanwhile, the Burger Court refused to extend Title VII’s disparate-impact theory of discrimination to constitutional litigation in 1976’s Washington v. Davis, calling its legitimacy into question more generally. Throughout the 1980s, the Rehnquist Court limited disparate impact under Title VII of the Civil Rights Act, insisting that individual discriminatory treatment was the defining civil rights violation.

But in today’s job market, collective claims make more sense than ever. Wal-Mart has gained notoriety because it exhibits all of the defining features of the contemporary service-sector employer in an exaggerated form: it has a large, low-wage workforce, high turnover, and a decentralized management structure and evaluates its employees based on highly subjective criteria. Wal-Mart is larger than any other employer, and many of its practices may be more extreme than those of its competitors, but all of the things Wal-Mart’s critics hate about it are typical of service-sector employers generally.

These features—especially high turnover, decentralization, and subjective evaluation—make it hard to apply the individual civil rights model that has developed since the 1970s. The main method of proving individual discrimination was established back in 1973, in the context of manufacturing jobs that required objective skills and formal certifications. Percy Green, a black employee of the St. Louis McDonnell Douglas factory who was laid off from his job, sued when McDonnell Douglas rejected his application a year later after it started hiring again. Green insisted that McDonnell Douglas rejected him because of his race; McDonnell Douglas claimed it rejected him because an earlier protest he organized disrupted the company’s factory. The Supreme Court in McDonnell Douglas Corp. v. Green held that if a plaintiff shows (1) he’s a member of a group likely to be the target of prejudice, (2) he applied for and was qualified for the job, (3) the employer rejected him, and (4) the employer continued to seek applications for the position, he has made out a prima facie case of discriminatory intent. At that point the employer must offer a nondiscriminatory reason for rejecting the plaintiff. Finally, the plaintiff can try to convince the judge or jury that the defendant’s reason is really a pretext for discrimination: if he does, he wins his lawsuit; if not, he loses.

This method worked pretty well in a manufacturing context, like McDonnell Douglas. Employees needed objective skills, such as formal training or certification, to use specific types of equipment, and employers typically were indifferent between employees with the requisite skills. When McDonnell Douglas refused to hire Green, it raised the suspicion that its reasons were unusual. But notice how anachronistic the McDonnell Douglas approach is in today’s service-sector labor market. Consider factor number 2 of the prima facie case: the plaintiff applied for and was qualified for the job. Today, many jobs are filled by word of mouth or through informal internal promotion processes. The Wal-Mart plaintiffs complained that women were not mentored and groomed for upper-management positions, so they weren’t prepared when the better jobs opened up, and sometimes openings weren’t even announced. What does it mean, then, to “apply” for a management position at Wal-Mart? And the qualifications for many service-sector jobs are hard to define. The Wal-Mart promotions process was left almost entirely up to local managers, who said they considered factors such as “teamwork, ethics, integrity, and the ability to get along with others” in their decisions. Getting a promotion at Wal-Mart—as in many service sector jobs—isn’t a simple matter of being “qualified”; it requires being the best of a large group of aspirants, based on “soft skills” such as demeanor, poise, and personality. It’s easy for bias and stereotypes to hide in the fog of subjectivity that such evaluations entail: a manager who thinks women shouldn’t be in charge might claim a female candidate lacks “team spirit,” or his opinion of a female candidate’s people skills might be influenced by his stereotyped views of appropriate feminine demeanor.

The Wal-Mart plaintiffs came close to insisting that decentralization and subjective job criteria are inherently discriminatory. This was the weakest part of their case: these are legitimate and effective management styles. A company shouldn’t be punished for adopting them, nor should we presume that they are a cloak for bias. In a stereotypical manufacturing job, it might make sense to be suspicious of subjectivity: the main thing the employer should care about is how well and how quickly an employee performs his job on the production line—something that can be objectively measured. But in the service-sector jobs that are the fastest-growing part of the modern labor market, objective performance is only part of the job. A cashier who efficiently completes a transaction but is surly to customers is a bad cashier. A manager who knows how to organize his subordinates but can’t manage conflicts among them or inspire them to work diligently is a bad manager. In fact, even in manufacturing, the most successful businesses today know that teamwork, cooperation, and the ability to innovate are important skills for everyone from upper management to the assembly line worker. State-of-the-art management science suggests that giving local managers, who are closest to the specific challenges, the latitude to respond to them often leads to dramatic improvements in productivity and efficiency. These innovations in management may be more “vulnerable” to bias than formal and objective job criteria, but they are becoming more and more prevalent for good reasons.

Decentralized management and subjective job criteria may be vulnerable to bias, but the real problem for civil rights law is that whatever bias there is will be harder to detect, making it nearly impossible to prove specific instances of discrimination, even when discrimination is rampant.

If the Wal-Mart plaintiffs are right about Wal-Mart’s pervasive culture of sexism, individual lawsuits can’t capture the magnitude of the social injustice, nor can they provide the appropriate incentives for Wal-Mart to change its ways. The evidence of statistical disparity can’t tell us whether any given woman was harmed by sexism, but it might tell us a lot about the pervasiveness of sexism at Wal-Mart. Since the nature of Wal-Mart’s personnel management makes it hard to detect individual discriminatory intent, most of the Wal-Mart plaintiffs would lose individual suits, even if they were victims of discrimination. Judge Frank Easterbrook, of the Seventh Circuit, explained this problem in a race discrimination case:

Suppose 1,000 employees apply for 100 promotions; 150 of the workers are black and 850 white. If all are equally qualified and the employer ignores race, then 85 white workers and 15 black workers will be promoted, plus or minus some variation that can be chalked up to chance. Suppose only 10 black workers are promoted. Is that the result of discrimination or chance? Econometric analysis may suggest the answer … [but] it cannot reveal with certainty whether any given person suffered … [Suppose that] but for discrimination, 15 [black employees] would have been promoted … Which … would have received the other 5 promotions? The statistical analysis does not tell us—and in civil litigation, where the plaintiff’s burden is to show more likely than not that he was harmed by a legal wrong, data of this kind will not get a worker over that threshold.²¹

Even when we can be pretty sure a given employer discriminated, it’s possible that no individual will be able to prove that she was discriminated against. Because individual lawsuits require such proof, they can’t address many of the inequities of much of the modern job market. The Dukes suit, with its heavy reliance on statistics, was an attempt to bring employment discrimination law into the twenty-first century.

Dukes split the Supreme Court along ideological lines, 5 to 4. Writing for the majority in rejecting the Dukes class, Justice Scalia emphasized the lack of any common policy among Wal-Mart stores nationwide and insisted that the plaintiffs had “little in common but their sex and this lawsuit.”²²

Dukes v. Wal-Mart was civil rights litigation for the twenty-first century in the same way the Jena Six protests were a civil rights demonstration for the twenty-first century. In both instances, a fortuitously selected group of individuals became symbols of a larger social injustice: the glaring racial disparities in the nation’s criminal justice system in the case of the Jena Six; the enduring fact of workplace gender bias in the case of the Wal-Mart Seven. There’s nothing new about this in and of itself. Almost every important civil-rights-based challenge has used an individual to dramatize a collective injury: Linda Brown was one of thousands of black students forced to attend segregated schools in the Jim Crow South; Rosa Parks was one of thousands of blacks forced to sit in the back of Montgomery, Alabama, buses.

But if an individual is to symbolize a larger injustice, she must have in fact suffered that injustice. What’s new is that today it’s often very hard to tell when an individual injustice has occurred, even when we know from looking at society as a whole that a lot of injustices must be occurring somewhere. Even if we knew that racism and racism alone had caused the dramatic racial disparities in the criminal justice system, we still couldn’t be sure that the Jena Six were in the group of blacks prosecuted because of their race as opposed to the group of blacks prosecuted for legitimate reasons or because of race-neutral prosecutorial overzealousness. Similarly, even if the statistics cited by the Wal-Mart Seven prove that Wal-Mart must have discriminated against women, we may have no way of knowing which women were victims of discrimination and which suffered due to their own poor performance or lack of initiative.

Sex inequality is pervasive in the American labor market. Despite decades of efforts by women’s groups, women still earn, on average, roughly 70 percent of what men do for comparable work, and the glass ceiling prevents qualified women from getting many of the most remunerative positions. Wal-Mart may well be worse than average, but it’s a prime example of a widespread problem. Wal-Mart makes a good target, not because it’s unique, but because it’s conspicuous—much like a small town in the American South is a conspicuous target for an accusation of police and prosecutorial racism. The Wal-Mart Seven, like the Jena Six, called attention to a social injustice that they as individuals may or may not have suffered, by zeroing in on a target that may be no worse than many others. In both instances, an individual claim (“Free the Jena Six!” or “Promote the Wal-Mart Seven!”) is a potentially misdirected way to address a pervasive injustice. But what’s the alternative? It’s hard to fault these efforts, as poor a fit as they may be, if there’s no other solution to the injustices that such civil rights protests and litigation try to confront.

Against Entitlement

After several well-publicized airline mishaps left passengers stranded on the tarmac for hours without water or access to clean bathrooms, angry travelers began to press for an Airline Passenger Bill of Rights. One proposal would have allowed passengers to sue airlines for flight cancellations, delays, overbooking, lost and damaged luggage, and time “trapped” on the tarmac. Another version, sponsored by Senators Barbara Boxer and Olympia Snowe, was more modest: it required airlines to provide passengers with water, food, and a chance to exit the plane after a three-hour delay, but it wouldn’t have required airlines to compensate individual passengers. The Airline Passenger Bill of Rights was grounded in Congress for several years, but President Obama implemented a similar rule through the Department of Transportation, bypassing the congested legislative runway. Now airlines that let a full plane sit for more than two hours must offer passengers food and water and must let them leave after three hours; violators can be fined $27,500 for each trapped passenger by the Department of Transportation. “This is President Obama’s Bill of Rights,” said the Department of Transportation secretary, Ray LaHood.²³

Frequent travelers can only welcome this development, but in what sense is it really a Bill of Rights? Of course the bill is designed to help airline passengers, but it doesn’t actually create any new rights. A “right” is a legal entitlement that an individual or group can assert against another individual or group. Otherwise, it’s just a regulation, no matter how loud the blaring of trumpets and the cheering of crowds that accompany it. By this definition the proposed Airline Passenger Bill of Rights—however commendable as regulation—doesn’t live up to its name. Still, the regulations contained in the so-called Bill of Rights are designed to make sure airlines will not keep their passengers stranded on the tarmac for hours on end without food and water—the same goal that an individual entitlement would ideally reach. In this sense, we could think of rights as nothing more than public policies that allow for private enforcement and individual compensation through litigation, rather than for public enforcement by police, prosecutors, or regulatory agencies.

If we think of rights in this way, then we face a practical question of public policy: When are individual entitlements the best way to achieve our goals? The main practical difference between a civil rights lawsuit and public enforcement of regulation is that the former requires the compensation of individual victims while the latter would not. But this difference isn’t always as important as it may seem. For instance, in the Wal-Mart class action, individual compensation was almost an afterthought. As Judge Kleinfeld complained in opposing class certification, the trial plan aspired to only rough justice for the millions of putative victims of Wal-Mart; it would almost certainly have given an undeserved windfall to some women who were not victims of discrimination and undercompensated some who were.

This is a damning objection only if individual compensation is the overriding concern. Because we’ve defined social justice in terms of rights, it’s natural to assume that some sort of individual restitution is the ultimate goal. But perhaps individual compensation shouldn’t be the main objective; maybe it is a means that has become confused with the end. Consider the idea of the civil rights plaintiff as a “private attorney general”—a sort of desegregation bounty hunter who is deputized to help enforce the law and offered a reward, in the form of monetary damages, for doing so. Viewed this way, private damages are not a moral entitlement designed to compensate individuals but instead an incentive offered to entice people to bring civil rights violations to court. And for defendants, damages are designed to deter discrimination. For purposes of deterrence, it doesn’t matter who gets the money as long as the defendant has to pay for violating the law. In this sense civil rights are designed to encourage more responsible behavior so that a lawsuit isn’t necessary. Effective regulation can bring about similar changes in behavior directly, making individual entitlements unnecessary.

Suppose we were to suspend—if not abandon—the idea that every victim of discrimination is entitled to an individual remedy. Suppose we shifted our focus from individual entitlements to public policies designed to reduce the prevalence of invidious discrimination and unjust social inequality overall. This may seem unfair if you think that individuals have a right to equal treatment that no collective goal can outweigh. But the American legal system has never recognized such a broad and sweeping guarantee of individual fairness. As people like Jerold Mackenzie know all too well, in the United States most employment is “at will”: employers can choose whom to hire, fire, and promote for any reason that isn’t explicitly forbidden by law. A lot of bad reasons—nepotism, favoritism, idiosyncratic prejudice (imagine an employer who hates redheads or people with bad skin)—are legally acceptable. Employment at will is controversial, and sometimes it is superseded by other arrangements, such as civil service rules, union contracts, academic tenure, and state wrongful-termination laws. Government could try to guarantee that all employment decisions are made for “good cause.” But that would require detailed micromanaging of innumerable business decisions: government would need to determine what counts as good cause in a host of different situations and to review every controversial employment decision. Such a reform would be costly, both in terms of direct expenses for regulatory enforcement and litigation and in terms of inconvenience and inefficiency for employers. Employment at will reflects valid concerns about the capacity of government to identify and prevent or remedy unfairness: it can be very hard to tell the difference between unfair treatment and the kinds of difficult judgment calls that every employer must make. Would more aggressive regulation of the employment market be worth the expense? If the labor market is healthy, a good employee who is treated unfairly usually will be able to find employment elsewhere; in fact, many people who could sue their employers for discrimination prefer to cut their losses and find a new job. It’s probably wiser to devote scarce resources to unemployment insurance and a robust social safety net to help cushion the blow of unavoidable employment dislocations—whether due to capricious employers or to the unpredictable shifts of a volatile economy.

Civil rights law prohibits only the most severe and socially destructive forms of discrimination—typically those that have become widespread because of misguided laws or social customs in the past. For instance, race discrimination was part of an all-encompassing, legally structured system of racial hierarchy, and many of the habits, attitudes, and effects of that system are still with us today. Similarly, sex discrimination was legally and socially enforced for much of American history, and the bad habits of male chauvinism are not yet extinct. The social injustices and individual harm caused by race and sex discrimination have been much more widespread and severe than those caused by favoritism, nepotism, or idiosyncratic biases. The racial minority passed over because of his race and the woman limited in her advancement because of her sex may not find better opportunities elsewhere; instead, they may well face the same type of discrimination over and over again. But if these kinds of discrimination were less widespread, they wouldn’t be as damaging. Public policy that reduced segregation and counteracted irrational prejudice would make race and sex discrimination less widespread and more like the kinds of unfairness we can get beyond without compensation.

Practically speaking, individual rights don’t provide every victim of discrimination a remedy anyway. Lots of people are victims of discrimination but don’t know it or can’t prove it. Plenty of others find that the costs of pursuing their rights—time and expense spent in litigation and a possible tarnished reputation in one’s profession—outweigh the benefits. It’s expensive and time-consuming to sue for discrimination; as a result, relatively few people do so, even when they have valid claims.

And the people who do sue aren’t always those with the strongest claims; instead, they are often those with the least to lose in terms of forgone opportunities and reputation by filing suit. Imagine a competent, conscientious, amiable employee with a good reputation in her field who is fired by a bigoted employer. She could spend the next several years suing her employer for the dubious privilege of returning to work for a bigot, or she could just find another job. Now imagine an incompetent, lazy, and belligerent employee who is fired for her poor performance and disruptive behavior. She is unlikely to find work elsewhere and has no good reputation to put at risk. With nothing to lose, such an employee has every incentive to file a trumped-up discrimination claim.

Individual civil rights can inadvertently encourage weaker claims over stronger ones in other ways. For instance, people are much more likely to sue when they lose a job or are denied a hoped-for promotion than when they are not hired in the first place. This is probably because most people value things that they currently have much more highly than they would value the same thing if they did not have it. This phenomenon is so well-known among psychologists and economists that they have a name for it: the “endowment effect.” It’s a sort of twist on the idea that a bird in the hand is worth two in the bush. Numerous studies have shown that people will demand much more—sometimes orders of magnitude more—to sell an item that they possess than they would offer to buy the same item if they did not have it. My colleague Mark Kelman has offered this simple example of the phenomenon: Suppose I were to inherit a rare and valuable bottle of wine, worth $1,000. An acquaintance, who is an obsessive oenophile, would happily pay me $1,000 for the wine. I, by contrast, drink martinis—a relatively plebeian tipple compared with vintage Bordeaux—and would never spend more than $100 on a bottle of wine even for the most special occasion. Still, I’d kind of like to know what a $1,000 bottle of wine tastes like. If I inherited one, it is quite plausible that I would decide to drink the wine myself rather than sell it. This is an example of an endowment effect: I would not relinquish a bottle in my possession even for ten times the price I would be willing to pay for it if I didn’t already have it.

The same phenomenon seems to apply to jobs. Immediately after the Civil Rights Act was first passed, many employers had blatantly discriminatory hiring practices and deliberately segregated workforces, and these offered easy targets for litigation. But civil rights lawyers quickly picked off the sitting ducks, and employers began to change their practices. Discrimination in hiring was harder to prove, and few individuals had the information or the incentive to sue over a job that got away. But many people, having landed a job, would fight to keep it. As a result, complaints of termination now outnumber failure-to-hire complaints by almost seven to one.²⁴

Devoting such an overwhelming share of resources to investigating and adjudicating claims of discriminatory termination makes little sense. By so heavily favoring discriminatory promotion or termination claims, individual civil rights litigation looks for prejudice where we are least likely to find it while neglecting more promising hunting grounds. Only an employer who has in fact hired members of an underrepresented group can become a defendant in a discriminatory termination lawsuit brought by a member of that group. Such an employer is somewhat less likely to be bigoted than one who has never hired any minority employees in the first place, yet civil rights enforcement spends most of its resources policing the actions of just these employers while paying relatively little attention to employers who discriminate in hiring.

Such lopsided enforcement not only misdirects resources but also creates perverse incentives. A well-crafted civil rights policy would reward employers who hire members of underrepresented groups and punish those who refuse to. But current civil rights litigation does just the opposite: it makes it relatively safe to refuse to hire members of underrepresented groups (because there is little risk of being sued for failure to hire) and risky to hire them (because doing so opens one up to the much more likely lawsuit for discriminatory promotion or termination). As my colleague the law professor and economist John Donohue notes, “A worker who is not hired in the first place is obviously in no position to bring a future firing suit … With the enormous increase in discharge cases, the probability that a worker will bring a discriminatory firing suit is now substantially higher than the probability that a worker will bring a failure to hire suit. Consequently, antidiscrimination laws may actually provide … a monetary advantage to an employer for rejecting the … protected [job] applicant.”²⁵ Supplementing—or replacing—individual entitlements with robust administrative regulation in the public interest and eliminating the most questionable entitlements would change these perverse incentives and lopsided emphases.

Rights and Responsibilities

A right necessarily implies a corresponding duty on the part of someone else: if employees have a right to be free from discrimination, employers have a duty not to discriminate; if disabled students have a right to an adequate free public education, school districts have a duty to provide it; if bar hoppers have a right to equal treatment without regard to sex, bars have a duty to eliminate ladies’ night. Rights always imply that there is another party who is able to discharge that duty and who should be required to do so. This makes rights an awkward fit for some purposes. For instance, the English parliamentarian Edmund Burke once asked: “What is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician rather than the professor of metaphysics.”²⁶ Rights can’t feed the multitudes or cure the sick, and it’s not clear who would guarantee a right to food or medicine. Farmers and physicians? Should they be expected to contribute their services for free? Why? If not, who will pay them? If the government is to pay, then a right to food and medicine will require a social welfare apparatus, raising difficult policy questions concerning the distribution of scarce resources and the effects of public subsidy on quality and efficiency—all questions on which reasonable people will sharply differ. Declaring a right to food or medicine doesn’t help us to work out these details; in fact, a right may make it harder to see the detailed questions involved.

Many issues that have been framed in terms of civil rights—with the implication that some individuals deserve compensation and others deserve to pay—would be better reframed as public policy questions that involve difficult technical and administrative complexities and tricky questions of distributive justice. Consider the problem of long lines at the ladies’ room that I discussed in Chapter Two. It’s not a trivial problem: longer waits cost women valuable time at work, with the result that they are less productive than men or must work longer. Over the years, this is a real expense—a tax of sorts attached to the female sex. Nor is it simply the natural consequence of biological sex difference; it’s also the consequence of bathroom design decisions that could have been different and could be changed. Maybe we’ve just become inured to the idea that women always have to wait to use the bathroom. Mightn’t our acquiescence reflect a silent and insidious belief that a woman’s time isn’t worth as much as a man’s—a belief reflected in and reinforced by the stubborn persistence of a sex-based wage and salary gap? There’s a strong argument that these inequities demand attention and redress.

But a civil rights lawsuit is an inefficient, uneven, and unfair solution to the problem. It’s inefficient because litigation is costly and time-consuming; it’s uneven because only the proprietors who encounter women willing to devote time and effort to a lawsuit will be forced to change; and it’s unfair because in many cases the proprietor facing civil rights litigation won’t be responsible for the design of the bathrooms, which were built decades earlier and can be changed only at great expense. To a woman sick and tired of wasting her time in long lines, restroom equity may feel like a civil rights issue. But we can make things better without creating a new, inefficient, and costly civil right. The building code is a more promising solution than individual civil rights. Some cities and states require new or remodeled construction to include a specific ratio of men’s to women’s restroom facilities. This allows proprietors to avoid wasteful remodeling as long as the old restrooms are still in good shape, but requires them to consider gender equity when they are in the process of planning new facilities. Public regulation offers a sensible solution to the problem at a reasonable cost; by contrast, a civil right to sex equity that required monetary compensation and immediate reform regardless of expense would go wrong in terms of both efficiency and fairness.

The current civil rights model—premised on a struggle between individual victims and callous or belligerent perpetrators—pits business against social justice. But many of today’s businesses need not be made the enemies of equal opportunity; they could be powerful allies. Today hundreds of businesses try to recruit minority job applicants, improve job conditions for working women, and provide access to people with disabilities. Most do all of this without judicial coercion or the threat of litigation. In fact, large corporations such as 3M, Coca-Cola, General Electric, Hewlett-Packard, Intel, Johnson & Johnson, Kraft Foods, Microsoft, Nike, Pepsi, Procter & Gamble, Reebok, and Xerox urged the Supreme Court to affirm the validity of race- and sex-based affirmative action in 2003’s Grutter v. Bollinger. They insisted that “today’s global marketplace and the increasing diversity in the American population demand … cross-cultural experience and understanding … Many employers sincerely lament their inability to attract and retain a diverse workforce.”²⁷

But the antagonistic relationship between businesses and the civil rights community leads some employers to jealously guard information about the race and gender composition of their workforces. For instance, several Silicon Valley high-tech companies, including Google, Apple, Yahoo!, Oracle, and Applied Materials, wanted to keep this information secret so badly that they fought to prevent a San Jose Mercury News reporter, Mike Swift, from obtaining this routine workforce data from the EEOC. The companies claimed that the information was a “trade secret.”²⁸

It’s hard to imagine how such data could reveal a firm’s recruitment strategy, and we will have to imagine, because when Swift asked for elaboration he was told that the explanation was a trade secret too. But it’s not hard to imagine why these companies might prefer to keep the race and gender of their workforces a secret: in 2006–2008, only 1.5 percent of Silicon Valley high-tech workers were black, 4.7 percent were Hispanic, and 23.8 percent were women; by contrast, over half of all Silicon Valley workers are female, and over 24 percent are Hispanic.²⁹ Of course, this doesn’t mean that the firms are discriminating: there are many possible explanations for these figures. Qualification for high-tech jobs varies by race and gender, as does interest and proximity. For instance, although more than 12 percent of the national working-age population is black, only 2.9 percent of working-age Silicon Valley residents are; in this light, the 1.5 percent figure doesn’t look quite so bad. Perhaps the statistics simply reflect the qualifications and interest of the available labor force.

Still, it’s telling that the businesses of the future are willing to go to such lengths to keep their workplace diversity—or lack thereof—a secret. A more open and cooperative relationship between businesses and civil rights advocates might yield new ideas for improving diversity. Or, of course, it might demonstrate that the firms are as diverse as one could expect, given the available and qualified labor pool.

* * *

When Congress debated the Civil Rights Act of 1964, many of its sponsors proposed an administrative approach, modeled on the National Labor Relations Board. Civil rights leaders worried that private enforcement through lawsuits would weaken the new law, because “many of those discriminated against would be poor and legally unsophisticated.”³⁰ As it’s turned out, private enforcement has not led to too little enforcement, as liberal civil rights groups feared, nor has it led to too much, as many conservative complaints would suggest. Instead, it has given us some of both problems: many serious offenses go undetected and uncorrected, while minor, innocent, and ambiguous transgressions often receive inordinate attention; many people with strong claims involving widespread injustices do not seek relief or can’t prove their cases, while people with weak or dubious claims can extract undeserved settlements from risk-averse businesses. Worst of all, individual civil rights claims are less and less likely to correct the nation’s worst injustices.

State and federal agencies charged with setting guidelines for civil rights enforcement, such as the Equal Employment Opportunity Commission, now have decades’ worth of experience and information about the nature of unjust inequality. Employers with over a hundred employees are currently required to submit EEO-1 reports that detail the race, national origin, and gender composition of their workforces. The EEOC could use this information to develop antidiscrimination goals and identify and eliminate impediments to equal opportunity. A stronger EEOC could be a clearinghouse for new ideas, assisting businesses that want to improve by offering suggestions based on what has worked elsewhere and allowing employers the flexibility to innovate free from the threat of unpredictable litigation. Employers that met diversity targets or adopted policies known to prevent discrimination might enjoy immunity from civil rights lawsuits.

Of course, tougher measures are in order for repeated and willful noncompliance. Statistical disparities aren’t proof of discrimination in and of themselves, but reform is needed when the best information available suggests that concealed or even inadvertent discrimination is distorting the labor market. Effective regulation would have to include cease-and-desist power and fines for the recalcitrant. Armed with enough information about the available applicant pool and with the latest econometric techniques, administrative agencies could determine the likely race and gender composition of an evenhanded employer’s workforce. Government could establish realistic expectations and develop rules and incentives that would encourage institutions to eliminate hidden biases and impediments to equal opportunity.

But what of constitutional rights? Most people think of constitutional rights as limitations on the executive and legislative branches, so it may seem contradictory to suggest that such rights might be interpreted, enforced, and even replaced by administration agencies or policies written by the legislature. It’s a common misconception that the judiciary—in particular the Supreme Court—is in charge of constitutional interpretation. But nothing in the Constitution gives the judiciary exclusive authority over its meaning or enforcement. In fact all branches of government are responsible for upholding the Constitution. For instance, the Fourteenth Amendment explicitly grants Congress the power to pass “appropriate legislation” enforcing its guarantees. Formally, the Civil Rights Act was upheld as an exercise of Congress’s power to regulate interstate commerce, but it could as easily have been justified as an exercise of the power to enforce the Fourteenth Amendment. In fact, many people intuitively think of the Civil Rights Act as an extension of constitutional rights.

Congress and state and local government all have important roles to play in enforcing constitutional rights, because many rights can be guaranteed more effectively through comprehensive regulation than through litigation. For instance, judicial enforcement hasn’t ensured the equal educational opportunities sought in Brown v. Board of Education. In fact, Southern school districts resisted desegregation for a decade after Brown, until Congress reinforced Brown’s mandate by tying federal education funding to desegregation as part of the Civil Rights Act of 1964. And things might be better today if Congress, the courts, and civil rights activists had taken up judge J. Braxton Craven’s suggestion and allowed federal, state, and local “administrators, [with] some competence and experience in school administration” to take the lead in school desegregation.”³¹

* * *

Rights are a tool, a technological innovation in the science of law and policy, a means of getting something practical done. Sometimes rights are perfect for the job at hand, just as a hammer is the perfect tool for driving nails. Sometimes rights are just about as good as anything else, as a hammer is as good a means of cracking open a coconut as any other. But sometimes rights are not well suited to the task at hand: a hammer would be a bad tool for removing a cork from a wine bottle, for instance.

To some people carrying a hammer, every problem looks like a nail, and to some people practiced in legal argumentation or social activism, every social problem looks like a civil rights violation. Most of the misdirected rights claims I’ve discussed in this book were the result of someone hammering away at a real problem. Rights go wrong by trying to address institutional and collective problems as if they were simply a collection of individual injuries. In these circumstances, rights give us moralizing when we need pragmatic solutions; they encourage inflexibility when compromise, cooperation, and sensitivity to concrete stakes are required; they inspire narrow self-interest when we must consider the common good. In such cases, a practical and public-spirited approach to the problem often reveals workable solutions that a claim of individual right obscures from view.

For instance, racial disparities in the criminal justice system are one of the most glaring examples of racial injustice in today’s society. Statistical evidence suggests that racial bias plays some role in all stages of law enforcement—investigation, arrest, prosecution, conviction, sentencing, and parole. This has led some to call criminal law enforcement a new Jim Crow. But the evidence suggests that racial bias is relatively mild and somewhat scattered: it can’t account for the magnitude of the racial disparity in the imprisoned population. Much of the growth in the American prison population is directly attributable to the war on drugs that began in the early 1980s. According to the Justice Policy Institute, the number of people in jail for drug crimes increased by a staggering 550 percent between 1989 and 2009.³² In 2005 roughly one-quarter of the people incarcerated in the United States were convicted of a drug offense.³³ And the statistics suggest that racial bias is most prevalent in sentencing for drug-related crimes: for instance, a study in 2000 found that blacks in Kansas City convicted of drug crimes received sentences that were over fourteen months longer than whites convicted of similar crimes, but found no racial disparity in sentencing for violent crimes.³⁴

This suggests that we could eliminate much of the racial disparity in law enforcement simply by ending the war on drugs. It’s increasingly clear that the war on drugs is a quagmire: it hasn’t significantly reduced drug use; it has enriched organized crime both in the United States and overseas, just as Prohibition empowered the Mafia in the 1920s; and it has diverted untold public resources to prisons—resources that could have been used to improve schools and job opportunities in poor neighborhoods where crime is now prevalent. Claims of widespread racial bias in law enforcement will be subject to intractable debate, and bias in individual cases is usually impossible to prove. As a result, a civil rights approach to the problem will indefinitely defer a solution as pundits, politicians, academics, and activists argue over the meaning of the latest statistical evidence. By contrast, ending the war on drugs is a specific and attainable goal on which a growing number of people from across the ideological spectrum agree. Whether they favor decriminalization of most recreational drugs or argue that law enforcement should no longer make drugs a priority, many sensible people now recognize that the current approach to narcotics is extravagantly costly and largely counterproductive.

Students with learning disabilities are only a small fraction of the many students who are disserved by today’s educational system. Standardized tests are a necessary part of the evaluative process, and often they yield probative information. But many people read too much into test results that are, at best, a rough proxy for practical competence and skills. This disadvantages everyone who “tests badly”—whether or not a diagnosed learning disability is the cause—and it deprives society of their talents. We’d all be better off if schools and employers took a more nuanced and modest approach to standardized test scores. But a civil right that artificially inflates the scores of a select few only makes the tests even less probative. A better approach would allow disabled plaintiffs to challenge the validity of certain tests generally, as disparate-impact civil rights laws do in the context of employment practices that disadvantage women and racial minorities. If a test doesn’t measure the relevant skills, it shouldn’t be used to evaluate anyone; if it does, it should be administered evenhandedly.

Similarly, too many public schools fail all but the most talented and self-sufficient students; new administrative and pedagogical approaches are desperately needed. The failure of the schools with respect to students with attention deficit disorder and other emotional and learning disabilities is only the most conspicuous example of a more general failure. New research shows that conventional educational methods don’t work for a disproportionate number of poor, culturally unsophisticated students, and even many socioeconomically privileged boys are at a disadvantage compared with their developmentally advanced female peers. A civil right that requires cash-strapped schools to divert resources from the general student body to children with mild or vaguely defined disabilities makes things worse for these students and papers over the deeper problem, leaving the underlying rot to spread.

Age discrimination remains a serious problem for elderly job seekers, but there’s little evidence that age-related bias is widespread for older workers, who often actually enjoy preferential treatment. Civil rights prohibiting age discrimination have badly missed their mark, quite possibly worsening the plight of elderly job seekers while forcing employers to give unjustified advantages and windfalls to a small group of relatively wealthy older middle managers and professionals. Age discrimination enforcement should focus on hiring discrimination—not termination, promotion, and compensation—and the law should be amended to allow mandatory retirement at some reasonably ripe old age—perhaps seventy or seventy-five—with periodic review to reflect changes in longevity.

Sex discrimination is pervasive in American life: women suffer from antediluvian stereotypes, misogynistic hostility, sexist condescension, and sexual predation. Laws against sex discrimination have made these practices less common and less accepted. But American society is still struggling with the meaning of sex equality. Even committed feminists can’t agree on whether equality requires strict equal treatment or demands that we take into account differences between the sexes. Professional women struggle to walk a tightrope between what employers consider unacceptably androgynous and unprofessionally girlish self-presentations. But most women jealously defend certain types of differential treatment based on sex. A law that forbids any and all sex-based distinctions would satisfy a lofty conceptual rigor at the expense of common sense. As a result, judges have no choice but to make tough and inevitably controversial judgments about which distinctions are socially harmful and which are benign or innocent. These judgments don’t look or sound like the kind of crisp and decisive logic we have come to expect from legal rights analysis, but at their best they represent the highest form of the judicial art: nuanced and context-specific judgments, inspired by a coolheaded evaluation of the common good and warm-blooded empathy for the individuals involved.

The need for nuanced judgment is no less pronounced in the context of race discrimination. Brown v. Board of Education is perhaps our legal system’s finest moment, but its aftermath often showed the courts at their worst: stretched beyond their administrative competence and careening back and forth between rigid absolutism and craven capitulation. Civil rights are certainly not to blame for this, but rights analysis did encourage an impractical conceptual approach to the problem of segregation. If, instead, the courts and Congress had simply asked how the nation could most readily and painlessly integrate the public schools, they could certainly have done a better job—even if the effort might have started more slowly and less dramatically. And if desegregation policy had been inspired by such a clearly defined practical goal, no one would be tempted to declare victory and begin winding down the effort when so many of the nation’s children still attend racially segregated schools—much less forbid pragmatic integrationist policies that emerge from the democratic process.

Legalistic thinking has spilled over into civil rights activism as well, where it has mixed with rage, nostalgia, and demagoguery to yield a cocktail that stimulates the emotions and depresses the faculties of self-restraint. As a result, today’s protest movements too often seem to prefer “speaking truth to power” over exercising it. Perhaps that’s because exercising power requires one to confront tragic conflicts between compelling goals and to make tough choices: the activist can simply demand that those “in power” free the Jena Six, whereas the person charged with freeing them or keeping them behind bars must ask whether doing so is a good idea for all concerned. But then again, many of today’s political activists don’t really expect to get what they’re demanding anyway: increasingly, they define their objectives in terms of “community building” and “consciousness raising”—a sad admission of the futility of their demands.

It may occur to some readers that I’ve limited my discussion to a small part of the large hardware store of rights claims: rights to equality that Americans colloquially call “civil rights.” Couldn’t I make similar arguments about, say, the First Amendment right to freedom of expression, or the Eighth Amendment right against cruel and unusual punishment, or the Second Amendment right to bear arms? Perhaps. I could point out that the First Amendment now prohibits needed campaign finance reform by treating sensible restrictions on corporate spending in elections as restrictions on speech. I could note that the supposed right to be free from cruel and unusual punishment hasn’t stopped us from making the threat of rape in prison an implicit part of criminal deterrence. And I could insist that the right to bear arms seems nothing less than a ghoulish approach to population control, firearms being easier to procure than many forms of contraception. But to even begin such an analysis (and begin is all I aspire to have done in this book) would require the same kind of context-specific analysis I’ve offered for the rights claims I’ve discussed in the preceding chapters. So I raise these tentative observations only to leave them.

This book is part of a long tradition of skeptical commentary on rights. Ever since the French revolutionaries declared the Rights of Man and the Citizen, social critics from both the left and right of the ideological spectrum have questioned the wisdom and efficacy the assertion of rights. Edmund Burke attacked the Rights of Man as a pernicious scholasticism that ignored the complexities of the art of government and the value of tradition.³⁵ Jeremy Bentham famously attacked the idea of universal and inalienable rights as “nonsense upon stilts” and “bawling upon paper,” arguing that rights should yield to changing social circumstances and concerns of social utility.³⁶ Karl Marx critiqued “bourgeois rights” as a form of alienation that divided humans from each other in society and from their own highest purposes.³⁷

In the 1980s, communitarian political theorists worried that the American rights tradition had become corrupted and called for rights to be supplemented with a robust assertion of civic responsibilities. Meanwhile, legal scholars and political theorists associated with the leftist intellectual movement known as critical legal studies advanced a comprehensive critique of rights—work that has profoundly influenced my arguments in this book.³⁸ They argued that rights offered a false hope of social change through courts and litigation, that they siphoned energy away from more promising political action, and that they distorted political and social consciousness by encouraging people to think of themselves as isolated rights holders rather than as participants in a collective struggle. This inspired a powerful response from many people of color and feminists in defense of rights—civil rights in particular—which they insisted were indispensable to the moral growth of the nation, and a cherished part of the identity of minority groups.

A series of more specific and less sweeping critiques of rights grew out of this debate: instead of making claims about rights generally, the next generation of critiques offered detailed accounts of the costs and benefits of specific claims of right. I have discussed many of the authors of these critiques herein: my colleague Mark Kelman and his coauthor Gillian Lester’s work on learning disability claims; my former colleague at Stanford Janet Halley’s work on sex harassment and sexual minorities; the Yale Law School professor Vicki Shultz’s work on sexual harassment law; Sam Issacharoff’s work on age discrimination. One lesson of the debate in the 1980s and the second generation of critiques that followed is that rights imply a distinctive type of analysis, which is better suited to some questions than to others. This suggests that sweeping criticisms of rights are probably mistaken, but that a rights-based approach may well be ineffective or counterproductive in some of the circumstances in which it is currently used.

The law professor Mark Tushnet once insisted that “it is not just that rights-talk does not do much good. In the contemporary United States it is positively harmful.”³⁹ This goes too far. A vandal once threw a hammer through my front window in San Francisco, causing me a lot of trouble and expense, but it would be rash to conclude that hammers are a general public menace. I can, however, certainly say that hammers are sometimes badly used, and perhaps suggest some loose guidelines for their responsible deployment.

Civil rights are indispensable tools, but sometimes they will do more harm than good, like a hammer used to loosen a wine cork or open a window. Luckily, we have other tools: the many injustices that civil rights can’t fix—or can’t fix at an acceptable cost—can be addressed in other ways. None of this diminishes the significance of civil rights in the slightest. Civil rights serve a vital but limited role. In order to fulfill the practical promise of civil rights, we must acknowledge their limitations. In order to honor the achievement of the civil rights movement, we must move beyond the tactics and ideas of the past.

Righting Rights

Civil rights are remarkably effective against overt prejudice perpetrated by identifiable bigots. But they have proven impotent against today’s most severe social injustices, which involve covert and repressed prejudice or the innocent perpetuation of past prejudice. Like an overprescribed antibiotic that kills beneficial microorganisms and eventually encourages resistant strains of bacteria, the civil rights approach to social justice, once a miracle cure, now threatens to do more harm than good.

Americans have been trained to accept and even to celebrate the many costs of rights gone wrong. Like the drinking, brawling, and reckless sex that are supposed to be the necessary by-products of creative genius for a tortured artist, the notorious abuses and misuses of rights are, we’re told, a small price to pay for their invaluable virtues. In fact, we’ve come to embrace some of the worst cases of rights gone wrong, believing that they provide evidence of our society’s steadfast commitment to civil rights. Every high school civics student learns that we must allow the Nazi Party to march through a community of Holocaust survivors unless we would have government silence all unpopular speech. The propagandists of unregulated gun ownership tell us that we must allow antisocial militia groups to arm themselves with military assault rifles in order to protect the rights of the small-game hunter and the single woman who keeps a pistol for protection. Resentful single men, overzealous lawyers, and the California Supreme Court instruct us that we must outlaw ladies’ night and Mother’s Day in order to prevent sexist business owners from keeping women trapped beneath the glass ceiling. But just as addiction rarely contributes to artistic talent, rigidity and extremism are rarely necessary preconditions of human liberty and equality. Rights don’t have to go wrong: they can and should be exercised in a spirit of responsible civic engagement. Every schoolkid learns that his right to swing his fist ends where his classmate’s nose begins. But somehow as adults we forget this simple truth and act as if rights can and should be asserted regardless of the costs to others.

At their best, civil rights can foster socially responsible and altruistic behavior. For instance, Thomas Paine, one of history’s most eloquent and sophisticated advocates of human rights, wrote the following in defense of Republican France’s Declaration of the Rights of Man:

While the Declaration of Rights was before the National Assembly, some of its members remarked, that if a Declaration of Rights was published, it should be accompanied by a Declaration of Duties. The observation discovered a mind that reflected, and it only erred by not reflecting far enough. A Declaration of Rights is, by reciprocity, a Declaration of Duties also. Whatever is my right as a man, is also the right of another; and it becomes my duty to guarantee, as well as to possess.

It’s no accident that this observation—at once savvy jurisprudence and profound social theory—should come from one of the most passionate defenders of rights. Rights imply duties in a strictly necessary sense: my right to free speech implies the duty of others not to have me jailed for expressing my views; my right to equal treatment implies that other people have a duty to treat me fairly. And more important, as Paine suggests, rights imply a profound reciprocal social relationship between citizens. My right to free speech implies a duty to tolerate speech I find offensive; my right to equal treatment implies a duty to treat others as my equals. Paine envisioned each citizen as not only a bearer of his own rights but also a guarantor of the rights of others. Rights make common sense only in the context of social, political, and economic relationships. To assert rights responsibly, we need to consider how our claims will affect society as a whole.

Think about how far we’ve moved away from Paine’s idea of rights. Today, most people think of rights as a kind of commodity or asset that they can cash in by running to court like an investor redeeming a government bond. Rights go wrong because the civic-minded conception of rights as a social relationship has been replaced by a more miserly and atomistic conception of rights as nothing more than an individual entitlement, to be asserted against others and enforced by an omnipresent government.

* * *

The work of the civil rights movement is not complete. Although race relations have, in many ways, never been better, overt and vicious racism remains, and inner-city blacks are more socially isolated, desperate, and culturally deprived than they were before the great civil rights reforms of the 1960s. Women have taken their places in the modern workforce, but they suffer from unfairly limited opportunities, depressed wages, demeaning stereotypes, and on-the-job harassment. The disabled have enjoyed significant gains in respect and access to jobs and public spaces, but many needless impediments to their full participation remain. And although older workers fare well, jobless older people still face high odds in finding employment. Most of these problems require nuanced and comprehensive institutional changes—not individual entitlements.

Still, despite the numerous instances where rights have gone wrong, many wrongs remain to be righted, including some we as a society have yet to acknowledge. Two examples stand out. Perhaps the most obvious is the now decades-old struggle of gay men and lesbians for respect and basic fairness. Although the inaptly named policy of “Don’t Ask, Don’t Tell”—in fact a policy that encouraged interrogation and public shaming based on sexual orientation—was repealed in 2010, as I write, the deceptively titled Defense of Marriage Act, a federal law that in fact preemptively attacks marriage, preventing states from extending its full privileges to same-sex couples, remains the law of the land. It tells us all we need to know about these two pieces of legislation—and about the antigay agenda behind them—that their authors gave them names that so directly contradict their purposes and effects. I argued in my book The Race Card that opposition to same-sex marriage may not be motivated by antigay bias—even so, the time for people of goodwill to vacillate on these questions is rapidly drawing to a close. Even the argument that the secular state should leave marriage to the church and offer only domestic partnership—a gesture that might have been admirable twenty or so years ago—now can only be apprehended as an insult, akin to the Jackson, Mississippi, decision in 1962 to close its public pools rather than open them to blacks.

Another example should be more obvious than it is. Today, thousands of undocumented immigrants labor in America’s factories, fields, restaurants, and office towers, performing necessary work that few citizens of any race care to do. They come here, often packed into the backs of trucks and railcars, smuggled in by profiteers in conditions that recall those endured by African slaves centuries ago. They come voluntarily—that is a big difference, although perhaps not a morally decisive one. They work on farms for subsistence wages, often warehoused in unheated, unlit concrete bunkers or tin shacks without running water—conditions much like those of the black sharecroppers whose places they took at the bottom of America’s social food chain. Their plight is not the inevitable consequence of a border between a rich country and its poorer neighbors. We could acknowledge their contributions and the inevitability of their presence here and allow them to work with dignity and without fear. As noncitizens, they have few legal rights, and yet if any group of people can justly lay claim to the legacy of the civil rights movement, they can—they, and whoever will work to improve their lot.

Trumped-up, trivial, and exaggerated claims, based on unrealistic, abstract ideals and inflexible mandates, proliferate, testing the patience of the general public and often actually undermining social justice. But at the same time the valid claims I’ve just mentioned and many others demand our attention. Of all the risks of rights gone wrong, perhaps the greatest is that the bad habits of opportunism, legalistic conceptualism, and festering ressentiment will slowly take the place of the common sense to recognize injustice when it is staring us in the face, and the common decency to do something about it. Distracted by the wrong rights, we may neglect to right wrongs.