So when I'm denied admission to a fancy restaurant because I'm wearing my ratty stained frayed jeans and a T shirt, in violation of their necktie requirement, I'm being deprived of my fundamental human liberty interest in personality, or grooming, or some such thing?
I could support that argument.
On the other hand, he seems to be saying that any social norm for which we can't show a compelling necessity must be discarded. Somehow that seems unlikely. Society has always had norms, and each little subset of society has its petty and arbitrary requirements. Like abjuring pleated pants. I can't imagine that every changing.
All of the examples Yoshino gives involve bad decision making by some superior. A high level of tolerance for people's behaviour and dress that doesn't affect their workplace effectiveness is a good thing. I certainly wouldn't want to work for an organization who demoted or fired people for wearing cornrows, speaking spanish, having babies, doing a same-sex commitment ceremony or wearing yarmulkes.
Well, this is really a fine example of academic entrepreneurship. Take a common phenomenon, rename it in some suggestive way ("covering"), and inflate the whole mess into a new, and frankly goofy approach to the law. Finally, ride the whole thing to a job at Yale law. Congratulations, Professor Yoshino!
I'm waving. Each of us has an obligation to be transgressive, as the learned professor points out:
People confronted with demands to cover should feel emboldened to seek a reason for that demand ...
I'd agree with baa, except that this guy hasn't even managed to rename it in some suggestive way ("covering"). All he's done is discover, and partially understand, the work of Goffman. That's nice. Goffman certainly did good work (see Asylums and Presentation of Self in Everyday Life and others). But that it comes as an eye opening revelation to a professor of law at Yale says a lot about the insularity of both Yale and law schools. I can't see anything in the article that's not either utter nonsense or blindingly obvious to anyone with some background in the social sciences - or isn't Goffman required reading any more?
Whenever I speak about covering, I receive new instances of identities that can be covered. The law may someday move to protect some of these identities. But it will never protect them all.
For these and other reasons, I am troubled that Americans seem increasingly inclined to turn toward the law to do the work of civil rights precisely when they should be turning away from it. The primary solution lies in all of us as citizens, not in the tiny subset of us who are lawyers.
Looks to me as if he's recognizing that 'covering' doesn't fit comfortably into civil rights law as it now exists, and that the law can't be expected to expand to cover all situations where it is, somehow, unjust to ask someone to cover. He's talking about societal expectations, not encouraging a rush to the courthouse.
And shouldn't we be able to agree that, given that it is illegal to strike jurors for being Latino, it ought to be illegal to strike them for speaking Spanish?
Yeah, LB, I saw the obligatory "the answer lies not in the law, but in the human heart" fig leaf. That doesn't mean that Yoshino precludes the emergence of fun and exciting legal rulings from his theory. Quite the contrary.
Anyway, as I say, my interest in engaging Yoshino's substance is minimal. Can't we just celebrate him as a brilliant player of the current glass-bead game?
Finally, ride the whole thing to a job at Yale law.
is untrue, and is empty vituperation. There's no suggestion that work on 'covering' had a thing to do with his getting a job at Yale law -- from the article, the instructions he got to cover as a junior faculty member led him to think about it.
It's fine with me if you disapprove of considering 'covering' in this sense an injury to a valuable liberty, or if you think the article is silly. Lying about the author in order to accuse him of having become interested in the idea purely out of insincere ambition seems uncalled for -- would you talk about someone like that if you expected them to answer you?
Just because someone's a liberal academic doesn't mean that it's cutely adorable to abuse them without basis.
It was only a few years ago that I started "coming out of the closet" about being an atheist. A lot of people still think atheism is weird. (Yoshino mentions the opposite problem: the believer at Yale who doesn't want to admit that because people will think he's dumb.)
Yoshiro's defined the (perhaps well-known) problem well. In the case of women & babies, it's very true. Male graduate students in my department have no fear of cutting out early to pick up the baby from daycare, or to schedule classes around their kids. Even at a very child friendly school, however, female graduate students don't have kids nearly as often and when they do, are very careful never to use the 'baby at daycare' excuse for anything.
They're good scholars and good dads. We're not as committed scholars because we're good moms.
But I have to wonder what Yoshiro's up to. This phenomenon isn't new, nor unidentified. He's given it a flashy name, but he's a legal scholar. I would be more impressed if he used his legal training to devise a solution; the article read as though he were playing sociologist.
Well, he's writing in the NY Times Magazine for a lay audience. I don't think the aim is anything more elaborate than "Here's a phenomenon, which people have a tendency to analyze under civil rights law. While I think it's an interesting and important phenomenon, it doesn't fit comfortably under current law; we'd have to come up with a new framework if we wanted the law to cover this." The article isn't scholarship, it's an essay for general audiences.
Point taken. But give us a hint, or at least suggest a direction for the law? I mean, this phenomenon is pretty well known, isn't it? (If it's not, then the piece serves a purpose.)
I'm not saying he should shut up unless he has something new to say, but it does bother me a bit that none of his legal training seems to have much to do with his take on the phenomenon. He may be an academic, but that doesn't mean he gets to blather on any subject (cf. Volokh's 'statistical' arguments against being gay. Don't challenge me. It's academic freedom!)
My guess is that this phenomenon is worth pointing out. Maybe everyone in the world knows that it's not really color-blind to fire anyone -- black or white -- for wearing cornrows, but I suspect not.
My conservative wingnut dad has heard of this phenomenon. (This is the CalaDad standard of 'will it play in Peoria?') He thinks, for example, that it's not discriminatory to ban cornrows in the office because people should leave their culture at home. After all, he does.
(Then I pointed out the Jerusalem cross he wears, and the conservative hair style, and how those were 'culture' but acceptable because 'straight white male' is the dominant culture. Cue accusations of being an evil liberal. Fun stuff!)
I guess I figure that my dad's response to the article wouldn't have been that Yoshiro has pointed out a problem, but that he's pointed out a well-known fact that wouldn't have a solution even if it were a problem.
But I think that does make it worth pointing out. There will be some people who just stick to the line that people who aren't straight white Christian males should do their best to act like them, but maybe Yoshino will get some other people to think about it some.
I do share your suspicion that he is jumping the sociologists' claim.
One would hope. I think what bothered me more was the presentation: This is NEW! Because if you tell a hardened conservative (or anyone really) that here is a NEW phenomenon that will shake their worldview, it better not be something that they heard about twenty years ago.
>Lying about the author in order to accuse him of having become interested in the idea purely out of insincere ambition seems uncalled for
Whoa! Now who's too tense? Lying? Purely out of insincere ambition. Where do you get that from what I wrote?
This guy is clearly a modern academic superstar, Harvard BA --> some kind of Rhodes-like scholarship --> Yale law --> clerking for Guido --> professor. He's also invented/advancing a goofball theory in a time honored academic fashion. If Don Delillo can make fun of this kind of thing, why can't I?
baa, out of curiosity, what about his theory do you think is 'goofball'? That the phenomenon exists, or that this phenomenon is a problem, or that this phenomenon has a realistic solution?
At first glance it doesn't seem terribly goofball to note that if one defines 'appropriate office wear' as 'conforming to straight white Christian male stereotype' that one is tacitly discriminating against people for not fitting into that framework. Terribly obvious, maybe, but not terribly goofball.
It seems to me that his theory suggests two stages (maybe these are involved). First is the idea that it's bad to restrict anti-discrimination traits to immutable traits rather than mutable traits, such as cornrows and yarmulke-wearing. (Note that religion is mutable, and being able to speak Spanish is immutable -- at least, you can't voluntarily lose it -- so the law as he derives it is already on shaky ground.) That suggests something like, you can't forbid a mutable trait that is disproportionately held by members of a protected class unless there's some legitimate purpose (or some other standard). That seems non-goofball to me.
Then there's his suggestion that all these things will someday fall under positive rights, like the right to personality or the right to marry who you please, of whatever sex. That would be an all-new conception of civil rights, not based on protected classes. But I think he marks that out as not around the corner.
maybe these are involved s/b "maybe these are explicitly acknowledged in the worked-out version of his theory," or something like that. Please just ignore all the other incoherent parts of that comment.
"The remedy lies in the human heart" itself requires covering, does it not? Accept the culture of personal liberty, or we will smite you in the NYT, etc. More on this later.
I think there's a relatively easy way to combine the two stages discussed in 24. I firmly believe that the world of civil rights exists almost entirely in the regulation of what employers can and can't require their employees to do; employers are almost always more restrictive and more capricious in their firings or denials than the government.
As it stands, a firing such as one for wearing cornrows doesn't get much scrutiny because it doesn't "discriminate on the basis of sex, race, religion or national origin" (note that sexual orientation isn't in Title VII anyway, so I think it's peculiar that Yoshino is surprised by the result he recounts).
Any firing or rule that does discriminate on the basis of a, b, c grounds has to be justified as a "bonfide occupational qualification" under title VII. The solution, I think, is that firing someone for any reason which is not a) akin to being laid off because they can't affor to pay you, or b) because of the quality of your work, if it has an identifiable, discrete reason (e.g. cornrows, baby at daycare), should be subject to this "bonafide occupational qualification" scrutiny. Of course, that jeopardizes the principle that employment is at-will, but I think restricting employers is pretty much the only legitimate way to make any progress in civil rights these days.
Of course, that jeopardizes the principle that employment is at-will
Yeah, it seemed to me that an essential part of stage two is "everyone should have the right to avoid firing for no cause, not just members of protected classes." And that would make a big change in the law.
I'm a conservative lawyer who has published several articles on the topic of how affirmative action is a bad idea and should be unconstitutional, so I am, in a sense, this guy's natural legal enemy. That said, I can't see what is so objectionable about what he wrote. The phenomenon he describes is well known and, while I disagree with some of it, his discussion of it in the context of civil rights law is hardly radical.
Of course, that jeopardizes the principle that employment is at-will
It's hard for me to imagine a worse solution, or one that is more likely to keep the political party supporting it out of power for my lifetime. I'd rather the govt. just gave people cornrow subsidies, to make them whole despite the discrimination they are sure to face.
Nothing. People are assuming that Yoshino is arguing that assimilationist bias is always bad, and that people should always be protected from their choices, but that's clearly not what he's arguing; just that there is an assimilationist bias, and that we need to decide in each case whether it's justified.
A lot of people still think atheism is weird. (Yoshino mentions the opposite problem: the believer at Yale who doesn't want to admit that because people will think he's dumb.)
This, along with ogged's original comment
any of us, including straight white males, can find ourselves "covering."
Make me think this is more in the realm of social psychology than even psychology. In some deep sense we could have an accepted common culture or trait that everyone feels deep down separate from to some extent. It's more about personal alienation from common culture. That may be more often true for people from certain groups, but it's a very rare person that doesn't feel alienated in some way. Except for FL, and he's busy covering for it.
People are assuming that Yoshino is arguing that assimilationist bias is always bad, and that people should always be protected from their choices
I haven't seen anyone argue 'protect us from our choices' on this thread, but it's worth noting that Yoshino does focus on five cases in which the legal decision that no discrimination occurred seems intuitively incorrect.
He does note that not every choice seems to intuitively require protection, but I don't think it's misrepresenting his position to say that he argues that ignoring assimilation bias is an abdication of judicial responsibility to protect civil rights when he says "Unfortunately, it also represents an abdication of its responsibility to protect civil rights."
I'm sorry, I missed the earlier link to baa's weblog.
In any case, Yoshino does make a pretty big jump from the problems he mentions (which don't seem to be as similar as he claims) to a 'right to personality', which does seem to be open to ridicule. But I think such a principle misses the point.
The problem here, for example, isn't that employers aren't letting employees wear cornrows, but that they're not letting employees wear cornrows and cornrows are a traditionally black hairstyle.
Couldn't this be solved by a less radical proposal? Discrimination against certain groups for being those groups is wrong; but just as poll taxes were outlawed in part because they were a proxy for racial discrimination in voting, we can distinguish between rules intended to discriminate-by-proxy and rules that enforce social norms (like personal hygiene) that don't.
It's not always going to be a clear bright line, but it seems better than the alternative principle.
That's what I was thinking of as stage one, but I think people concerned about covering would want to rule out intent to discriminate by proxy and disproportionate impact on the minority group without some legitimate purpose.
Here's the difference: Suppose that boss X forbids his subordinates from holding a knitting group on company property during the lunch hour, while not obstructing the group that goes to the conference room and practices their golf putts on their lunch hour. But X doesn't want to forbid knitting in order to stick it to women -- he thinks it's good to employ as many women as men, he just thinks that the women shouldn't knit, because knitting is prissy and annoying and bad.
When a bunch of women are fired for defiantly continuing to knit, stage-one Yoshino would say they should win their discrimination case, even though the intent of the regulation wasn't to discriminate against women. The thing is that because knitting is traditionally feminine, the knitting ban disproportionately affected women, and it serves no business purpose to make sure your female employees don't act all girly.
In your example, X is being stupid, and I don't think we have to go to the tea-leaves of his intent to get that far. He may be a nice man who just thinks knitting is prissy, but the law can judge the disproportionate impact without wondering about his intent. (He may have intended it to get women to take up golf and join their male colleagues because he knows that if they segregate themselves they'll lose out over the long runs in their careers. It's still a stupid law.)
I'm not overly familiar with the language of civil rights law, but as I understand it, the intent is pretty irrelevant if the actual result is discrimination. (It doesn't matter if the poll tax is just to fund the booths in a poor and rural district.)
he just thinks that the women shouldn't knit, because knitting is prissy and annoying and bad.
Why is this a bad thing? They can knit at home, after work. Absent bad intent, I'd rather he be allowed to organize his business along whatever lines he wants. What if he only hires people he doesn't find annoying, and he finds close-talkers annoying? They should win a suit against him?
Cala, I don't know the law much either, but I think showing intent is often important. And, ahem, you mentioned intention to discriminate by proxy.
SCMT, hopefully coherent response coming, but I just wanted to point out that I put up a philosophy-professor in the thread about bombing the terrorists.
I'm not overly familiar with the language of civil rights law, but as I understand it, the intent is pretty irrelevant if the actual result is discrimination. (It doesn't matter if the poll tax is just to fund the booths in a poor and rural district.)
The Twenty-Fourth Amendment forbids use of the poll tax in all federal elections. The Voting Rights Act confers additional rights.
The Supreme Court in Washington v. Davis construed the equal protection clause of the Fourteenth Amendment as forbidding only intentional discrimination. So, for example, the Supreme Court has upheld a Massachusetts law that gave a big hiring preference to veterans, even though the effect of that law was to disadvantage women. In two other cases, the Court even held, bizarrely, that it was legal for an employer to give its employees a health plan that covered vasectomies and other "male" stuff but not pregnancies. The majority of the Court held that this was not discriminatory because it denied coverage to all pregnant people, whether they happened to be women or men. Congress reacted by enacting the Pregnancy Discrimination Act.
Under other civil rights statutes, one can sometimes prevail by showing "disparate impact" on a particular group (blacks, women, etc.), even though the defendant may not have intended to discriminate.
I hope to be more coherent after my nap, but let me make a few comments I'll probably regret in the morning.
1. The blindingly obvious:
A. People discriminate all the time. To live is to discriminate.
B. Much of this discrimination is on the basis of what could be called culture; shared values and meanings, e.g discriminating against people who wear pleated front pants.
C. Much of this discrimination is tied to power and status. People don't wear the Audemars Piguet watch because they think it's the best looking watch, but because it marks them as someone with a lot of disposable income.
D. Much of this discrimination is related to group affiliation markers (again, the watch, or the backwards baseball cap).
E. You will never find or create a society without this sort of discrimination.
2. The nonsensical:
A. That the only discrimination is by the dominant group against outliers. There's lots of discrimination by non-mainstream groups against other non-mainstream groups, and even against the mainstream. That's why we have concepts such as "sub-culture".
B. That we could ever be free of an assimilationist bias. At some point all societies decide who is in and who is out. Sometimes it's the people who wear pleated front pants that are out. Societies and groups always decide who is Us and who is non-Us.
C. That we could could require employers to prove, in each case, that a particular firing was done for bona fide business reasons.
D. That everything has a legal component. With some things, the law just doesn't deal.
Yoshino actually strikes me more as confused, and until he read Goffman's book (published in 1963, he notes) and discovered the new - new! - concept of covering, shockingly poorly informed about things. The Helen Keller reference alone seems odd in a discussion of the newness of it all, what with that being the 19th century and all.
For those of you unsatisfied with Covering Lite, but still interested in Yoshino's argument, here's the original Yale Law Journal article. Warning: it has more footnotes than just about any other YLJ article in history. Or so I'm told.
Somehow, I thought the counting of typos really made one a little bitch. (Translation: if that's all you can say to baa, I think you've not done much to his argument, and you may be a tool.)
#42: The reason it's annoying is that in Matt's hypothetical, there's already a golf-putting group that meets at work. So "they can knit at home" doesn't address the real issue, which isn't that the boss objects to non-work activities at work; it's that he objects to certain non-work activities that *have nothing to do with ability to perform the job*.
Like at-will employment, it really perpetuates an extremely feudal/patriarchal (and I really don't mean that in a feminist sense, even, just in the sense of boss as daddy figure) idea of the employer's role. Not only is he supposed to run his business, cut the paychecks, and make sure people do their jobs; now he's supposed to pass judgment on their hobbies and character. That's what people are objecting to. Sure he has the *right* to fire whoever he likes (in part because we see employing someone as a form of association, and b/c we believe so adamantly in freedom of conscience). But it's objectionable to the democratic ideal to assume that economic power over someone *also* means one has moral power over them. And firing people for engaging in activities one finds "prissy" (or for their political beliefs, etc. etc.) is an attempt to exercise one's economic power to change *other* people's consciences.
On the substance, particularly as regards employment law, this all makes me very nervous, because it seems fundamentally important that people be able to hire and fire who they want. As a society, we've designated some reasons we find illegitimate, like race and gender, but these other reasons can become very confining very quickly.
I meant to note a few irritations with the article earlier, and I still don't have time to list them all, but the two that stuck with me are these. First, it is not the case that cornrows:black:: sex with women:lesbian. Second, if I remember right, the decision arising out of the Georgia firing noted that it's not unreasonable to believe that a woman who went through a commitment ceremony would be regularly violating the state's anti-sodomy laws.
In long delayed answer to your question, you are probably right that goofy is too strong. Although calling the right to wear oddball clothing at work 'liberty-based' civil rights is, I think, silly.
The point of the corn-row case, as you point out, is that it's transparently racist. A 'no green-dyed mohawk' policy not so much. Yoshino sees it as a virtue of his approach that it draws no principled distinction between mohawk and cornrow. That's daft. Look, I'm a big freak, and so greatly appreciate that my coworkers and friends tolerate my freakishness. But "free to be you and me" isn't actually a principle of American law.
42: 55 gets it pretty much right, especially paragraph 1. (And you may have recognized an allusion to this, the point being that sometimes people can be really blind to the fact that their own group is not the archetype of morality.)
At-will employment means that the boss can fire you if he doesn't like your face, with certain exceptions. I'm not going to get into the debate over whether at-will employment is good or bad here, but the exceptions are important: We've decided that the boss can't fire you just because you're black, or a woman, even if he doesn't like black people or women. That's important. And according to w-Yoshino, we shouldn't let the boss fire you just because he's laid down an arbitrary rule that happens to come down hardest on women or black people or other protected classes. Nothing that amounts to "women are OK so long as they act like one of the guys" or "black people are OK so long as they avoid those kinky hairstyles," unless there's a legitimate business purpose. -- And I realize that, absent intent, this is hard to enforce. That's where the other half kicks in; if you put forth a rule that encourages this sort of covering without a legitimate reason, you're being an asshole whether you intend to or not, and you should stop.
(Possibly in re 26: "Cover up your 'God hates fags' bumpersticker because it's annoying your gay coworkers" is possibly a dictate to cover, but it's got a legitimate purpose.)
"They can knit at home" is off point, because the guys don't have to golf at home.
As for close talkers, the law doesn't protect close talkers. So they're SOL under the law, though it may be assholic to fire them without a legitimate purpose (in this case I suspect "you're getting in people's space all the time" may be legitimate). Unless it happens to be that more members of protected ethnicity X are close talkers, in which case firing all the close talkers may have an impact of flushing Xs from the workplace, or making them feel uncomfortable, and that disparate impact would be legally problematic.
Well, Labs, but saying "it's not the case that cornrows:black::sex with women:lesbian" is, while *strictly* true, not actually true in the way people think about things. Lots of straight women have had same-sex experiences at some point (as have lots of straight men, if studies are to be believed). And in fact, if you follow the queer theorists at all, the idea that sexual *activity* connotes *identity* is really problematic. So you can be a woman who has sex with women, or wear cornrows, without being lesbian/black. But in the cultural mind, the associations are there.
As to the state's anti-sodomy laws, come on. *Everyone* violates anti-sodomy laws.
Second, if I remember right, the decision arising out of the Georgia firing noted that it's not unreasonable to believe that a woman who went through a commitment ceremony would be regularly violating the state's anti-sodomy laws.
boh? since when do two women having sex with each other commit sodomy?
certainly there's no reason to think it is more often than heterosexual couples commit sodomy.
My last comment should have ended: "legally problematic" according to w-Yoshino, which is my interpretation of stage-one Yoshino as before.
The point of the corn-row case, as you point out, is that it's transparently racist.
The racism wasn't transparent enough for the woman to win her lawsuit under current law. So it seems that Yoshino might have a bit of a point, even if he takes it too far.
If you think at-will employment is really important, as per 56 -- and it may be -- then you have to stop with 'covering' as it applies to protected classes. That's where you get to the "angry white male" response, which is "How come all these Others get to express themselves and I don't get to fly my freak flag?" (Of course anything that required white people or men to cover -- maybe a no-facial-hair rule -- would fall under this law, since all races and genders are protected.) Then I think the move to stage two goes like, "Because your eccentricities don't make you a protected class." "That sucks." "The way to stop this is to make sure that firings have to be legitimate, and to make the case that the rules against your freakiness don't serve a legitimate business purpose." And then you've had to junk at-will employment.
As silvana said in 27, there's no way to get to the second stage without jeopardizing at-will employment. A right to personality will be in conflict with a right to fire someone because he annoys you. But you can knock out rules that make protected classes cover without going to the right to personality.
btw, I think Yoshino should've stayed away from the Georgia case, since it seems to me that the plaintiffs in that case were trying to get protection against sexual-orientation discrimination by saying that "intimate associations" are protected. It's somewhat complicated by the fact that the Georgia AG apparently testified that he didn't fire her for being a lesbian, but for having a commitment ceremony. Still, if lesbians aren't a protected class, this strikes me as "First-class assholery, but not illegal."
If you genuinely have fuzzy african hair and you can't put it in cornrows, what are you supposed to do? You are required to straighten it chemically??
That really is unreasonable, coming from a boss. it's a long pricey unpleasant process - and possibly bad for you too.
Or you are allowed to have a little 'fro???
(The reason it is a particularly nasty requirement is because there is a weird correlation nobody will want to talk about between it being the most practical thing for you to have cornrows and you're having lots of sub-saharan genes, or, put differently, the more "optional" it seems to you to have cornrows, the more likely you have straighter hair because of many white ancestors - so this policy is reminiscent of bad old preferences for "mulattos," for lack of a better word. It really is a racist requirement.)
63: is oral sodomy an actual concept? I have heard of oral sex, but never oral sodomy. That sounds like sophistry on the part of the Georgians to me.
If it is a concept, heterosexuals OBVIOUSLY engage in it.
Also, ahem. Just for the record here, away from Georgia. Sex between two women might but does not have to involve oral sex. That's just a stereotype. There is another practice, which only two women can do with each other - I don't want to go into big anatomical discussion but the couple needs two clitorises for it - and it's more prevalent from what I hear.
Oral sodomy is a legal concept, dating from the time these anti-sodomy laws were enacted (i.e., a long time ago). Basically, "sodomy" denoted all "deviant" sexual practices, which were illegal (and often capital crimes). And yes, it applied to heterosexual couples as well.
52: You're right, baa. That thing you linked to does seem to set new world and Olympic records for typos.
Somehow, I thought the counting of typos really made one a little bitch.
You say that like it's a bad thing.
if I remember right, the decision arising out of the Georgia firing noted that it's not unreasonable to believe that a woman who went through a commitment ceremony would be regularly violating the state's anti-sodomy laws
I think that's right (or at least presumably she would -- as mmf! notes, lesbians can do other things, like tribadism, using vibrators, dildos, etc.). If you accept the legitimacy of anti-sodomy laws, the decision even makes some sense. Happily, in 2003, the Supreme Court held in Lawrence v. Texas that laws against sodomy are unconstitutional.
*Everyone* violates anti-sodomy laws.
Not my mother-in-law (I base this statement on a remark she once made to my wife). But yes, no doubt a majority of people who live in states that have such laws, or who travel to such states, violate those laws. But all of those laws are unenforceable after Lawrence v. Texas.
Oral sex is sodomy.
I think the "traditional" definition of sodomy referred only to anal intercourse. But you're right that most laws against "sodomy" encompass both "anal sodomy" and "oral sodomy."
Basically, "sodomy" denoted all "deviant" sexual practices, which were illegal (and often capital crimes). And yes, it applied to heterosexual couples as well.
True. In Lawrence v. Texas, the majority opinion written by Justice Kennedy notes that sodomy encompassed "deviant" sex, both heterosexual and homosexual, and bestiality. As of 1961, all 50 states made sodomy a crime. In 1961 (a number that, like 69, is the same upside down), Illinois became the first state to legalize it. (Yay, Illinois!) By 2003, when the Court decided Lawrence, only 13 states still prohibited sodomy, and 4 of those enforced the law only against gays.
And it was a fine thing when the gun-control thread got diverted to numerology, but surely we don't want to happen to this one, as it's been developing?
24: I firmly believe that the world of civil rights exists almost entirely in the regulation of what employers can and can't require their employees to do;
I'd like to point out another area: public accomodations affecting interstate commerce. You can't have a sign on the door of your mini-mart saying "no negros, Irish, or Jews". You may have a sign on your restaurant saying "no jeans".
There are good reasons for different standards in employment cases than in public accomodations. As soon as I wake up I can go into that, if it's not obvious.
I heard about a similar case 10-15 years ago, in which several black men aledged that they had a painful condition with curly hair that made it difficult to shave, and they wanted exemptions from no beard rules because they applied unfairly to blacks with curly hair.
I drove for a taxi company around DC that had a no beard policy. It was clear to me that it was intended to keep the more devout muslims out of their cars. I made a lot of money there, though, so I shaved my van dyke when I drove.
57 Why does it seem fundamentally important that people be able to hire and fire who they want? I think that's the key question.
Three reasons. First, as you noted, there's the interest in free association (but not in the Fruedian sense). Second, there's the basic liberty interest in being able to run your business the way you want, without undue government interference. Third, there's the practical problem of disentangling all the complex motives and factors that affect hiring and firing decisions. If you ask someone "when you had to fire 4 people from this 8 person department for budgetary reasons, why did you choose those particular four?" you're likely to get a fact pattern from hell. Sure, if the only four jews were fired that raises some suspicions, but then you'll get the situation where the jew, by random chance, were the most recent hires.
85: oh. Right. Apology. I see it. I hadn't seen that joke in so long I'd forgotten it. That's probably because of my mandicap (under the ADA) or my protected cultural choices in which jokes to expose myself to.
57 Why does it seem fundamentally important that people be able to hire and fire who they want? I think that's the key question.
Three reasons. First, as you noted, there's the interest in free association (but not in the Freudian sense). Second, there's the basic liberty interest in being able to run your business the way you want, without undue government interference. Third, there's the practical problem of disentangling all the complex motives and factors that affect hiring and firing decisions. If you ask someone "when you had to fire 4 people from this 8 person department for budgetary reasons, why did you choose those particular four?" you're likely to get a fact pattern from hell. Sure, if the only four jews were fired that raises some suspicions, but then you'll get the situation where the jew, by random chance, were the most recent hires.
Good example. Beards tend to be associated with both devout muslims and jews. But they're also associated with hippies, and rebellion, and Jesus. So to establish what you describe as an intent to discriminate on the basis of religion, against devout Muslims, there must have been other statements and actions. That gets us past having to rely solely on disparate impact
Being a lesbian can (probably only occasionally) be an advantage in getting hired. (Ask Mary Cheney!) Around 15 or so years ago, two women who'd been hired by the Cook County Forest Preserve District (for entry-level jobs that paid around $13,000 a year) claimed that they'd gotten the jobs because they had, er, put on a show for George Dunne, president of the Cook County Board. Dunne was over 70, IIRC, and the predominant reaction seemed to be "attaboy, George!"
61: And in fact, if you follow the queer theorists at all, the idea that sexual *activity* connotes *identity* is really problematic.
B is making a crucial point here. Everyone else probably got it immediately, but I just can't control myself when I see a dead horse.
Actual studies of what behavior is associated with a particular protected class will lead us astray. It's not behaviorthat matters, it's the cultural meaning attached to the bahavior. If an employer refused to allow watermelon or fried chicken on company property, in an intentional effort to explude African-Americans, I'd say there's a problem even in the absence of studies showing that members of that group actually are disproportionally likely to eat those foods.
Dyslexia, poor memory, and a fondness for run on sentences. Truly, I'm in a class by myself
92: Those were probably straight women who were forced to cover (uncover?) by acting as if they were members of the dominant group in order to get the job.
#84/86: Yes, but my point about freedom of association was that it's a *different* issue than employment. Logically, when you hire someone to work for you, you're not "associating" with them--you're employing them. You don't have to be their damn friend. You just have to cut them a check.
In other words, I think it's problematic that the distinction between *liking* someone and *employing* them is so damn blurry.
60: Unless it happens to be that more members of protected ethnicity X are close talkers, in which case firing all the close talkers may have an impact of flushing Xs from the workplace, or making them feel uncomfortable, and that disparate impact would be legally problematic.
According to an anthropologist, Edward T Hall, in The Silent Language (also from the 1960s, if I recall), it is cultural. Such things as normal speaking distance, touching the other person, gestures, and the like are all markers of cultural affiliation.
Okay, with that off my (modest) chest, I can think about what B just said.
Logically, when you hire someone to work for you, you're not "associating" with them--you're employing them.
I'm not sure I see the distinction as meaningful. Employment can be a major part of identity. Being associated with a particular job can be a major part of who one is, often construed in terms of how people in those jobs are seen. Consider used car salesmen.
Further, we see a lot of identity stuff mixed with employment these days. Whole corporate identities wrapped up with being one of the team. You're not just a clerk, you're ajunior associate. You're the sort of person we want at the company picnic. For a while there was a whole fad for sending employees on team building experiential programs. I'd often thought such things should be illegal, but I could never invent a principled reason.
Thanks Michael, I vaguely remembered/suspecting that might be the case for close talking but didn't want to make stuff up here.
Wow, I guess one really should lurk for a long time to discover *all* the informal rules around here. I'll make a note of that one, and promptly mislay the note. But I'm not making up the ET Hall reference.
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Michael (soon to become Msch) |
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01-21-06 7:17 PM
I must have been free associating to necroterrorism, but that was in another thread, and besides, the topic is dead. Can I refuse to discriminate against homonyms, and latent homonyms?
I must have been free associating to necroterrorism, but that was in another thread, and besides, the topic is dead. Can I refuse to discriminate against homophones, and latent homophones?
#100: Yes, this is true. And of course, it's also true that in general, the desire to hire someone who "fits in" has been shown to be problematic, in diversity terms. I'm really not ready to make the radical argument that a sense of collegiality should be completely thrown out, but I'm interested in thinking seriously about the ways that one's sense of "who I am comfortable with" can be PROBLEMATIC. (I like that word, so, nyah, Ogged.)
And I really am kind of serious about the distinction between associating and employment. Why is it beneficial to give employeers complete discretion in hiring and firing? And are those reasons (whatever they are), more beneficial than making it illegal to fire people without cause?
Logically, when you hire someone to work for you, you're not "associating" with them--you're employing them. You don't have to be their damn friend. You just have to cut them a check.
And practically, collegiality, congeniality, personability, etc are generally considered positives. In many lines of business, they're essential; sales, consulting, & so forth. I've seen senior job candidates turned down because the department found them uncongenial.
You're not hiring your new best friend, but you'd best be hiring someone who can get along with the team and do the work. I can't see that happening without some kind of norms of behavior.
Yoshino's article would have been stronger if he had just told the angry white man to sit down. Not being able to wear a t-shirt to your business meeting just isn't in the same league as having to hope that your boss won't move you into a different job because you're female and had a kid. The standard to wear a t-shirt may be culturally created and arbitrary, but it's not biased against any one group (whiny white males don't count.)
well, the mainstream white christian male answer is, of course, 'practice, practice, practice'. People who fly the freak flag would explain that if you don't already know, you're not one of us, so we'll not tell you. The answer in the business community is 'hire a necroterrorism consultant, or subcontract the job to a company with the appropriate skill set'.
You could burn and mutilate their bodies, as Iraqis did to the corpses of the "contractors"/mercenaries in Fallujah. As you'll recall, that motivated the Bush administration to kill 1,000 or so people in Fallujah in retaliation.
And practically, collegiality, congeniality, personability, etc are generally considered positives.
Yes, absolutely. But I don't see that these are necessarily connected to the whole "right to work" thing (which means, in legalese, the right for employers to fire you for any reason), or to the idea that employers have the right to fire people without cause--does it?
And I really am kind of serious about the distinction between associating and employment.
Is changing one's mind allowed? I'm looking again and thinking there is a distinction.
I've often thought that there is a cultural distinction between public and private. I think I picked this one up from Goffman (Presentation of Self possibly). He speaks somewhere about how one acts when on stage (acting in a certain public role, as salesman, professor, father) differs from the rules for when one is off stage (acting in a different, usually non-public, role).
I'm not sure quite where I'm going with this, but a better answer will require more thought. It may be worth remembering, also, that the boundaries between on stage and off, as between association and employment, are diffuse, contradictory, and always contested.
Wow, I guess one really should lurk for a long time to discover *all* the informal rules around here.
Assuming that was what you were referring to, 'taint no rule against making stuff up; I just didn't want to make stuff up about ethnic groups, in this case.
I do think that the idea that you should hire people you're comfortable with can be problematic, in that we're often comfortable with people who are like us in various ways, and it's bad if likes only hire likes. (And no less, or more, than Virginia Postrel has used considerations like this to justify affirmative action.)
I think the best argument for at-will employment is based on economics, not freedom of association; arguably it would be inefficient to have to provide cause for (and document) every decision. Not saying this argument is decisive, though.
Again, memory is dim, but Goffman probably used the term backstage, rather than offstage. He was talking, if I recall, in part about how the rules for conduct in the employee lounge, or in the green room, differ from the rules when one is performing.
But, Frederick, does burning the body really terrorize the dead, or, on the contrary, does it not honor the dead, as some believe? Consider that to many Americans, it would be abhorrent to suggest that one eat one's deceased parent, but to among the Massagetae, this activity is common and considered the proper course of action. And is it not possible that by focusing on the body, we leave aside all possibility of terrorizing the dead, who, if they were in their bodies, would in fact not be dead?
I think most people are kind of shocked when they learn that at-will employment is the norm, i.e. as the cases say, that the employer can fire an employee for "a good reason, a bad reason, or no reason." I didn't learn that until my first semester of law school. One can see why legislators, and the courts, would be loath to give every employee who loses her/his job the right to sue. At the same time, it's disturbing that an employer can just fire at will (for example) a 29 1/2-year employee who's six months from qualifying for a pension. I don't know what the law ought to be, but employment at will is a license for employers to treat employees like dirt.
115: Yes, Goffman definitely talks about that in Presentation of Self in Everyday Life.
119: I don't really believe in the concept of terrorizing the dead. I was just noting that somehow burning and mutilating the corpses of the guys at Fallujah was somehow seen as much, much worse than killing them, and our killing 1,000 or so people was somehow deemed a reasonable response to this. Of course, when our guys burn folks, mutilate their bodies, and post pictures of their handiwork to websites, that's just good clean fun.
119: I don't really believe in the concept of terrorizing the dead.
Listen, it's great that you wanted to note something about how certain actions performed on bodies affected the living, but if you had lurked here for a couple of years (as is the normal practice in internetwebland), you would have learned that we really don't tolerate going off topic.
Msch, don't know if you've been around long enough to see this analysis of banning. It's a compliment.
To terrorize the dead, of course, you go to Hell and chase their damned souls around a bit more. I believe Staggerlee does this to Billy Lyons in some versions.
Interesting link, MW. A cultural anthropologist would point out that she's missing something when she says that evoked sets are based on experience and exposure. It's deeper than that. Consumer choices, like everything else, have cultural meaning. Are you a Chevy guy or one of those latte drinking liberal Audi types? (that was a rhetorical, not a personal, question). The whole long thread about gayness and prissiness can be read as an exercise in defining the cultural meaning of certain consumer choices (Banana Republic or Gap?).
Her proposed remedy - You should also search through the other categories your mind uses to classify people is thus far easier said than done. Getting past one's culture, being able to see something from a different cultural perspective, is not a trivial task.
Yes, the phrase 'right to work' refers to whether closed union shops (mandatory union membership) is legal; thank you for the link on banning; thanks for the confirmation on Presentation of Self in Everyday Society; Becks, I can be Ted for you, if that's what you need.
But I don't see that these are necessarily connected to the whole "right to work" thing (which means, in legalese, the right for employers to fire you for any reason), or to the idea that employers have the right to fire people without cause--does it?
"right to work" isn't "at-will", which means that neither side needs to justify their decision to quit working or to fire someone legally (assuming it's not discrimination). Really, it means if you want to fire me for being an asshole to the customers, I'm not going to be in a position to sue you to prove that I was being an asshole. If a guy's making the female employees feel creepy, I don't have to wait until it turns into full-blown sexual harassment until I kick his ass to the curb. They also don't need a grievance to quit, and can't be bound into a contract that makes it impossible for them to quit.
This doesn't seem like a bad system. It can be abused, of course, but in and of itself it seems preferable to the alternatives.
I think the only way to terrorize the dead is to catch them while they're still alive. But maybe we should draw a distinction between dead and dead: the latter term does not refer to the cultural assumptions we have concerning the living.
126: Re: Terrorizing the dead is Hell. The terror of an afterlife in Hell terrorizes the living believers, and if one believes, one might be believing it terrorizes the dead, at least those insufficiently terrorized of death in their previous, now departed lives. I don't believe a word of it, let's see where that gets me...
Being an at-will employee also means that if you fail to cover adequately, if your boss discovers your shameful secret (you're a Celtics fan!!) you can be fired for that reason. Now it may also be true that most Celtics fans are Muslims, or most Muslims are Celtics fans, or that being a Celtics fan is culturally defined as a marker of homosexuality. But that leads us into a morass.
Since everything can be (and often is) a marker of group afiliation, on what bases should it be legal and socially acceptable to disciminate? In what situations? Are discriminations which we find invidious in public accomodation allowable in emplyment? What other categories should be protected: do we allow discrimination against audi drivers and people who buy from The Gap, but not Celtics fans?
Those are interesting and important questions, but I really don't think Yoshino's article added much to the discussion.
And I retract my offer to be Ted. I was recently reading about an elderly barbarian horde that was reduced to looting, pillaging, and staring wistfully at young women. I could identify. It's time to admit my limitations.
Weiner is clearly right when he says, "the best argument for at-will employment is based on economics...arguably it would be inefficient to have to provide cause for (and document) every decision."
Getting rid of at-will employment would be an unbelievably bad thing. Also, it seems like most of the cases of "cover" discrimination are already handled by the suspect classes schema. Either he's firing you for being in a class we worry about, or he's not. Or more correctly, either it looks like he's firing you for suspect reasons or it doesn't.
re 61: B, I was truncating like mad because of time constraints, but my point about cornrows was intended in (I think) a slightly different way. The idea is that being fired for cornrows seems different from being fired for sodomy or for yarmulke-wearing, in this way. I'm sympathetic to someone who says "if I don't have sex with other women, something very important has gone out of my life" or "if I cannot comply with my religion's demands, I've violated a commitment that gives meaning to my existence." Maybe I know the wrong black people, but cornrows don't seem to be as integral to a notion of identity that deserves so much weight.
That isn't to say that a cornrow prohibition is a good idea. Absent some story, it's stupid. But all of us live under stupid regulations governing appearance, and only some of these cases cry out to the heavens for redress.
I suspect the conversation will go something like this. We might agree that sharing some set of norms is important to coexisting. But every individual norm will not stand up to a certain kind of rational scrutiny, just as no particular hair is essential to be not-bald. Hence we end up somewhere we didn't want to be.
As for the sodomy case: keep in mind that this is the Bowers of Bowers v. Hardwick we're talking about. We agree that the law is stupid, but given that the law is the law, it would be very weird to accept, with no action whatsoever, that someone in the DA's office is consistently violating it. Or, rather, it would be weird to give legal protection to someone who was doing this.
Sorry-- to head off confusion, I mean not only that she's violating the law in a quiet way, but that she's basically announcing her intentions to do this on a regular basis.
136: But maybe we should draw a distinction between dead and dead: the latter term does not refer to the cultural assumptions we have concerning the living.
Good point. Americans tend to neglect that distinction, but it becomes obvious when considering groups that have practices such as shunning. In the western europen tradition, if I understand it correctly, declaring someone outlaw was cultural death. After that, it was just a matter of waiting for biology to recognize the social fact.
It might be necessary to argue to some people that a cornrow prohibition is stupid. There is a vague association between cornrows and thug. This doesn't make their position any more reasonable, but it may be worth considering that this could be a hidden premise, and that the anti-cornrow person may not be motivated simply by a desire for conformity.
Maybe I know the wrong black people, but cornrows don't seem to be as integral to a notion of identity that deserves so much weight.
Aren't you adopting an objective, reasonable person standard for deciding what aspects are central to identity? In other words, aren't you saying that the mainstream male white christian norms define what is central to the identity of black lesbians? I have trouble with that. Presumably, in the example, it was something the employee cared deeply about.
I think terrorizing the dead is about getting control of their narratives: inflicting damage or their reputation and descendents. Again, it's only really effective you manage to issue a threat to these things before they die.
But isn't whatever would make them "turn over in their graves" terrorizing them?
and that the anti-cornrow person may not be motivated simply by a desire for conformity.
To what does this respond? FL's talking about the harm to regulated person, and the assumption is that the anti-cornrow policy is not a concealed anti-black policy. (If it is, there are already remedies available.)
re 146: obviously I'm relying on something *like* "an objective, reasonable person standard", at least insofar as I think there are better and worse stances to take on what's worth fighting for and what's not.
But I deny that "in other words" this amounts to "the mainstream male white christian norms" being the right ones. Note what I said about talking to the wrong black people: I'm suggesting that the cornrows aren't regarded this way within "the black community" or whatever notion should take its place. If they were, we'd have a different problem.
Practical problem: if whatever really really matters to me deserves protection, we reach absurdity.
Theoretical problem: I know it's hard to distinguish just which features are significant in the relevant ways and which are not. But this is not at all to say that there is no distinction.
FL's talking about the harm to regulated person, and the assumption is that the anti-cornrow policy is not a concealed anti-black policy.
I think the court concluded, rather than assumed, that the anti-cornrow policy wasn't a proxy for race. That was the Bo Derek defense. It may be that the court simply reached an erroneous conclusion (something not entirely unknown in jurisprudence). From that one reaches two possibilites: either say 'oh well, justice is imperfect'; or ask 'how and why could a court come to an obviously mistaken conclusion? What led to this mistake, and are they worth scrutiny?'
145: I wrote that badly. I think (but I have no knowledge ) that the law allows people to show that a facially neutral rule is being used solely for the purpose of discriminating in prohibited ways. If 99% of black employees receive an "unsatisfactory" rating on annual reviews, while only 2% of all other employees receive an "unsatisfactory"rating on annual reviews, the employer is going to lose his case.
I'm not concerned about the sort of assimilation discrimination that the professor is talking about; I'm not sure if you are, either.
Actually, the cornrow/thug connection shows why the covering analysis might be useful IMO. You can imagine someone who, with no overtly racist intent, decides that employees will stay away from anything vaguely thuggish. Except their conception of 'thug' includes a bunch of things that are associated with black people (and not, say, things associated with working-class white people). So you get a bunch of policies that disproportionately affect things black people might want to do, and basically amount to "Black people are fine as long as they don't act too black."
I think that would be legal under current law, because there is no explicitly discriminatory intent, but that it pretty much is discriminatory, and it would be nice if there were some remedy (though I don't know how practical the remedies are).
I don't think there are remedies available, now, though. If Yoshino's at least right about the case data, wearing one's hair in cornrows wasn't considered to be a covert anti-black policy.
It seems to me that it is; I can't imagine a health and safety reason, or a neatness reason, or a professional appearance reason (especially when the alternative is what, nasty chemical straightening?) that doesn't seem to assume that looking black is unprofessional. (I'm not sure about the thug connection; too many little girls in my neighborhood with little cornrows and pink barettes.)
I don't think we need to go as far as Yoshino in order to get a case like that covered; it just doesn't seem ridiculous that this sort of measure could be used as a proxy for discrimination, and mutable/immutable doesn't seem to capture my intuitions on this.
I'm not concerned about the sort of assimilation discrimination that the professor is talking about; I'm not sure if you are, either.
That's the disagreement. I am concerned with it. "Women can work here as long as they're not too girly," "Black people can work here as long as they don't act too black," "Jews can work here so long as they don't flaunt their yarmulkes," I think all those things suck.
Except their conception of 'thug' includes a bunch of things that are associated with black people (and not, say, things associated with working-class white people).
But you could argue, on the data that the rule will yield, that it was a discriminatory policy with the wrong intent. You might be wrong, but your evidence will the same as if you were right. And it isn't as if the judge or jury is simply going to take the employer's claims that its policy wasn't a proxy for race at face value. It's not a straightforward schema, but it addresses the concern you have.
I think terrorizing the dead is about getting control of their narratives: inflicting damage or their reputation and descendents.
But we read in The Nicomachean Ethics that posthumous damage to one's reputation, or the shameful behavior of one's descendants, &c, affects the quality of one's life (and presumably these same things are among those which would make the deceased spin in his/her grave). How can we terrorize the dead person qua dead person?
Part of the subtext here, if I know anything about discrimination law, is that proving intent is hard. It'd be hard to prove that the cornrow policy was intended to make life difficult for black people, even if that were the case, unless someone was stupid enough to put it in writing.
155: Do you think the people who are worried that a black employee's cornrows make him 'too black' are really drawing a sharp distinction between 'black' and 'black thug'?
Part of the subtext here, if I know anything about discrimination law, is that proving intent is hard.
You're likely to be much better informed than I, but I'd want to know from what data that conclusion came. The cases that go to trial are going to be the ones in which the employer thinks he has a reasonable shot of winning; otherwise, he'll settle.
Acting black-thug and acting black are not along a line, Matt.
Depends on whose concept of 'thug' you're using, doesn't it? I'm not talking about someone who actually forbids thug-like behavior, I'm talking about someone (like the people Michael mentioned in 144) who forbids a bunch of black-identified things because they think they're thuggish.
It depends on what they say about other things, doesn't it? I'm not denying that anti-thug policies are motivated by racism, but I'm balking at saying that the problem with dressing in the menacing Death Row (records) style is that it's "too black" as if black people in, say, kente cloth and whatnot are *less* black. What made THAT the standard of blackness?
How can we terrorize the dead person qua dead person?
Terror, as a kind of fear, requires that there be some state of affairs in the future that one wishes to avoid. Do the dead have a future? Isn't being dead precisely to be without a future? Heaven is where we have everlasting life, but hell is no different, except that the life is one of torment. To be dead, as opposed to being undead or immortal, is to be beyond the reach of terror.
I have this vague recollection of a prominent blogger arguing that certain people should cover their unconventional behavior because it accorded with the norm and thus, his aesthetic. When was this? I just...can't...remember....
Seriously, I am reminded of a student I came across who had changed her very Asian name to an American one, except that she misspelled it, so that, I noted with amusement, anyone who saw her name in print but didn't know her would assume she was black. It did a little damage to her assimilationist aims.
You're likely to be much better informed than I, but I'd want to know from what data that conclusion came. The cases that go to trial are going to be the ones in which the employer thinks he has a reasonable shot of winning; otherwise, he'll settle.
If I correctly understand anti-discrimination law, the fact that employers are settling a bunch of cases does not mean proving intent is not hard; you don't have to prove intent to win an anti-discrimination case, just disproportionate impact. (Apologies if this is duplicative of other stuff on the thread, and I could have just pointed to another comment.
By the by, I'm not willing to concede that the cornrow policy was necessarily a proxy for race. It depends on exactly how the policy was written.
I can imagine a provision in and employee handbook which would forbid cornrows, and also forbid a number of hairstyles popular among white folks. It would probably say 'people with straight hair must wear their hair like this, wavy hair like this, and naturally tightly curled hair like this.' That would deprive everyone of their fundamental freedom of self-expression, irrespective of race.
Isn't being dead precisely to be without a future?
You make a good point! For instance, it has been argued by prominent theorists, for instance in the treatise Heaven (interesting despite its jejune title) that "Heaven is a place where nothing ever happens". Supposing that we believe in Heaven and Hell, it would be rash to suggest as a possible mutandum giving rise to a future a change in celestial station; if we don't, of course, we are no better off. However, I am not sure I agree with your analysis of terror as a species of fear—or at least of fear as requiring a future state to be avoided. For consider a moviegoer who, watching a scary movie, feels fear: perhaps she does indeed wish to avoid a future state in which she is devoured by zombies, but she doesn't really think this is a possibility!
162: We're talking about a hypothetical here, so I can't say what they might think about kente cloth. And I don't really mean "too black" seriously, as if there really were some continuum of blackness.
Still, even if the employers ban cornrows but not kente cloth, I think it's a bad thing that they're doing something that has disproportionate impact on some black people. If they ban putting crucifixes on your bookshelf, that won't affect those Christians (not more or less Christian than any other) who don't display crucifixes anyway, but it's still anti-Christian. Even if the grounds are that displaying the human form disrupts your modernist interior design.
Now, if you mean that the dead, being changeless, are timeless, and thus unthinking or some such, I admit that it will be hard to terrorize them. But we shouldn't give up just when it becomes difficult!
FL in 142: Maybe I know the wrong black people, but cornrows don't seem to be as integral to a notion of identity that deserves so much weight.
FL in 165: You see the kind of pious liberal territory I want so much to avoid: "oh look, it's behavior associated with parts of the black community; thus we must embrace it."
I'm having trouble reconciling these statements. You seem to want to protect things that are somehow at the core of blackness. If so, is there a better standard than immutable traits?
It would probably say 'people with straight hair must wear their hair like this, wavy hair like this, and naturally tightly curled hair like this.'
If someone told me I had to straighten my hair in order to work there, I'd exercise my at-will option.
I'd be surprised. Usually the places I worked that had such requirements usually limited requests to concerning facial hair on men, unnatural colors, punk styles, some piercings, and so forth. Tied back if one was working with food.
It usually didn't detail what styles were acceptable for what hair types. Most minimum wage places didn't have a problem with cornrows, either (which is why an explicit prohibition of cornrows strikes me as overly conformist.)
Even if we except the premise that fear requires a realistic belief in a change in future state, it could still be possible to terrorize the dead if it were possible to revive them, because then their state could change. So that's what you should set your sights on, young Ben.
ben, obviously we need to split the dead person's mind into two bodies just before he expires. Then, according to Parfit, he will be properly concerned about both of his future selves; we could terrorize the living one and that should coulnt for terrorizing the dead one.
172: I'd be surprised. Usually the places I worked that had such requirements usually limited requests to concerning facial hair on men, unnatural colors, punk styles, some piercings, and so forth.
Sorry, didn't mean it was common, I only meant that it's possible wo forbid cornrows with neither discriminatory intent nor discriminatory effect. That is, the example, as we have it, is missing important information (unless I missed something, which is also likely)
May we discriminate against spiky hair and piercings, which disproportionately impacts the young?
165: Sure, but this started out with the claim that some people associate cornrows with thugs. There's nothing intrinsically wrong with cornrows, and defending it isn't "oh look, it's behavior associated with parts of the black community; thus we must embrace it," it's "who gives a flying fuck about cornrows? really? why would you care if not out of a desire to make certain black people conform?"
I'm really wary of the counter-pious liberal position -- the On the Jewish Question position -- that says, "We believe that members of all groups have equal rights to act exactly the way that we like to act, because that's the only way to act, really."
As Tia alluded to, there was a lot of that going around here, with lots of guys happy to say that women shouldn't act in stereotypically girly ways because those were products of oppression, and if a woman did act that way it was OK to shame her. If everyone takes that to heart, the immediate result will probably be a bunch of guys sitting around complaining about how women can't take the heat. And as you know this is not entirely an academic worry about our discipline.
Short version: I want to make room for features that are (in some difficult but important sense) closer to the core of someone's identity, without giving the individual absolute power to define that. I want to give more weight to yarmulkes than to cornrows, unless several actual people say sincerely that cornrows are not just a desirable aesthetic choice but one that really causes pain if prohibited (in the way that a violation of religious custom might). I also want to leave room to say that certain claims about how looking gangsta is merely an expression of blackness are bogus. I think these fit together.
Anyway, more on this later. I'm tired, and I don't want to talk about this when I'm tired.
Somewhere way back you were saying that cornrows to race is not like sex with women to lesbianism. From that, I drew the perhaps unwarranted inference that there was some essential, core aspect to blackness that you believe should be legally protected.
Currently, the law draws that line at immutable traits (if I understand the law) or mutable traits where there's a showing of discriminatory intent.
You seem to be open to the notion that mutable traits, if sufficiently central, perhaps should be protected, but you won't go as far as MW in saying that any trait culturally or statistically associated with race should be protected.
I think FL ends up with something like 'a right arising from the penumbras and emanations of the free expression clause of the 1st Amendment, encompassing things so central to our understandings of personal identity that their deprivation would offend our concepts of substantial justice and individual liberty.'
Personally, I've always hated standards like that.
OK, I want to give more weight to yarmulkes than cornrows too, since it's mandatory vs. optional, but I want to give some weight to cornrows. A little more weight than "It's a stupid policy but there shouldn't be any redress for it." And I have no particular brief for looking gangsta, but I think that there's probably a lot of pressure to conform on black people that doesn't just result from dislike of gangstas.
Sorry, Matt, didn't mean that in the way it came out. Will sleep before commenting more.
No problem, I just deleted something pretty snippy on preview myself. Maybe it's like this: "oh look, it's behavior associated with parts of the black community; thus we must embrace it" and "members of all groups have equal rights to act exactly the way that we like to act" are two opposite poles of piety, and each of us is afraid that reaction against one will push us to the other.
I once saw a dress code for bank tellers. It was a 1 1/2 page single-spaced list, probably 40-50 items. Things like "Eyeglass frames must not be darker than hair color." No stone was left unturned. It was directed at an predominately white-Christian-female labor pool with a moderate number of East Asian women in it.
In a context of this kind, any recognition of group-identity dress or grooming would have been seen by the bulk of the labor pool as an individual escape from the crushing regimentation that everyone else suffered from, and it could very well have been gamed that way.
Speaking of raising the dead, I watched Heaven Can Wait (the Warren Beatty one) on DVD tonight. I had seen it before when I was a kid, and remembered it as a fun romantic comedy, though I couldn't recall precisely how it ended. I watched it this time and was so freaked out at the end I started to cry, and I was embarrassed to be crying at Heaven Can Wait, so I hid my face from my boyfriend, but then I broke into sobs and could conceal it no longer.
SPOILER
How did what Warren Beatty get compensate him in any meaningful way? His self wasn't preserved! Those fuckers. How did that resolution satisfy me when I was ten?
I wonder when precisely it was I became so out-freaked by loss of memory and identity stuff, but it must have been sometime between seeing Heaven Can Wait and Waiting for Godot (that's a funny juxtapostion of titles). That stuff in the second act where character A is asking character B (don't rememember which they were) about all the stuff that happened in Act One, and character B doesn't remember anything had me hysterically sobbing when I was 16, and everyone in the theater was like, damn, that kid must be having an existential crisis. I suppose the only reason I can bear to watch soap operas is that you always know the amnesia sufferer is going to get her personality back in the end--although, wait, Jason on GH never did. But I started watching after he was already taciturn Jason; maybe that's why I wasn't wigged out.
Does anyone else find this category of story as unsettling as I do? Also, what's the name of that black and white English movie from the forties that's sort of like Heaven Can Wait and has a big staircase in it? I can't remember.
Ah, I see, A Matter of Life and Death in Britain and Stairway to Heaven here. I thought it might have been Stairway to Heaven, but I googled "Stairway to heaven movie" and got something else. Thanks ac! Before you gave me David Niven's name, I had nothing googlable.
You're welcome. One of those guys involved in Trainspotting, Danny Boyle perhaps?, is related to the guy who wrote the Niven movie. And That's why they made A Life Less Ordinary, as a sort of tribute. Not the most successful of tributes, but oh well.
Anyway, I think you're right, ac, that as a kid I must have thought that TRUUE LOOOVE (to be read in the voice of Westley on Miracle Max's table) constituted the core of identity, and so been mollified. At least I know I've learned one thing since I was ten.
The drama teacher at my junior high wrote his own scripts and based them off of real movies and plays: they were all musicals and all the songs were parodies. The first I attended was, I think, Heaven Awaits (it's possible that the first I saw was Jokelahoma); only later, when I saw an ad for Heaven Can Wait on tv, did I realize that it was based on something. But I've never seen the movie and no longer remember most of what happened in the play.
I watched it this time and was so freaked out at the end I started to cry, and I was embarrassed to be crying at Heaven Can Wait, so I hid my face from my boyfriend, but then I broke into sobs and could conceal it no longer. . . . Have I mentioned I can't sleep?
I was thinking, "Jesus, Tia, get a grip," and then I realized, "Oh, yeah, I'm suicidal! Ha!"
So how do we feel about workplace prohibitions on bestiality? Stupid and/or discriminatory? Or is it within bounds to effectively ask the bestial to "cover" while on the job?
187 -- Godot Can Wait -- Beatty plays Estragon, trying to convince Vladimir (James Mason) that...
So you guys get all serious, in a boring, non-bestial way, and I ignore it and I ignore it, but then I finally chip in seriously, and you guys go all frivolous again on me.
So how do we feel about workplace prohibitions on bestiality? Stupid and/or discriminatory? Or is it within bounds to effectively ask the bestial to "cover" while on the job?
It is probably permissible to forbid employees to fuck sheep while on the job. However, it would be an unconscionable violation of one's personhood to require one to bring a human (rather than, say, a sheep, cow, or goat) to the office holiday party. Such a requirement would constitute involuntary servitude, and would be thus be an actionable violation of one's constitutional rights whether committed by a governmental or private actor. See U.S. Const. amend. XIII; 42 U.S.C. section 1983.
Haven't caught up on comments yet, but on the cornrows question:
The argument that it's not that big a deal seems to ignore a couple of things. First, like rules that require women to wear makeup, it ignores the way that small things add up. One reason for braiding kinky hair is to cut down on maintenance; you braid it, and then it only requires re-braiding once in a while. So on a given day, okay, fine, you spend X amount of time fixing your hair (applying your makeup)--but over time, that adds up to a lot more work (and expense, arguably) that Joe Average doesn't have to do, or even think about.
Second, and way more important: the "black hair thing" is a SUPER sensitive topic for black folks. Their hair has been regulated, surveilled, treated as a mark of exoticism, treated as a curiosity, treated as a "problem," for-fucking-ever. Virtually every black woman I know has stories about having complete strangers ask to touch her hair, comment on it, tell her it's "so exotic," etc. etc. etc. So passing a workplace regulation against a fairly common black hairstyle is like waving a red flag before a bull. Do a lot of white people know this? No. Does that matter? Yes--but not b/c it's an excuse; rather, b/c it's the *reason* that blacks are so sensitive on the goddamn hair issue.
Finally, I wonder what is included in the definition of "cornrows." Most of the women I know with kinky hair wear it one of two ways: natural, or braids. With kinky hair, braids of any kind require *part* of the braid to run along the scalp, cornrow style. If that's what's being banned, then that surely consitutes a massive imposition on the choices women can make about their hair. Pretty much your only non-braid options are straightening (the problems with which I assume are obvious), the big frizzy natural (which looks great, but tends to draw unwanted comments and attention), or cutting it all off. That's a pretty major requirement, no?
It is probably permissible to forbid employees to fuck sheep while on the job.
"covering" takes on a whole new meaning if we're talking cows and mares.
We've been talking explicitly about non-discrimination, but I think there's another standard floating in the miasma. The ADA requires 'reasonable accommodation' for the handicap. I think that something like reasonable accommodation is required for religious differences, although I'm not sure. Should we consider whether we want to require reasonable accommodation for racial differences?
When B starts talking about the additional burden which some grooming requirements place on people with naturally tightly curled hair, it sounds like an argument for reasonable accommodation. Does it make the analysis easier if we consider accommodation, or is it just more confusion?
Hm, I like this "reasonable accomodation" idea. I mean, it could easily be expanded to all sorts of things, e.g., "close talkers" or whatever. Is so-and-so's quirk one that other people in the office are capable of accomodating with reasonable effort? Or is it something that is, in and of itself, just irredeemably disruptive?
I disagree with the goodness of "reasonable accomodation" regulations; I don't want the courts coming into employment decisions that often. Also, I don't think you should be fired for refusing to change your hair style to suit your employer; I think you should be shot.
To follow up on BPhD's comment: a lot of African-Americans--in addition to the whole cultural tension about African-American hair that B outlines well--have brittle hair. I have curly white-girl hair that breaks, takes forever to grow, etc., but from what I've heard, many African-American women have four times the trouble growing their hair. Cornrows are a neat way of protecting their hair from the stresses of the elements and of styling--a way of protecting African-American hair that developed in, surprisingly enough, African-American comunities. And there are cornrow styles that are specific to thug life and others that are much less so.
I don't know what the law should look like, but any employer who regulates against cornrows sucks.
Well, that's the point of the article -- covering this stuff under current employment discrimination law, and probably under any expanded version of the law, is going to be either maddening or, more likely, completely unworkable, because there really isn't a way to draw a bright-line distinction between "the employer is reasonably regulating workplace behavior", "the employer is being a control freak, but not in a way that anyone has a right to interfere with" and "the employer is discriminating." This sort of thing can be a huge deal (e.g., the black hair thing), but it almost has to be a societal, rather than a legal problem.
... any employer who regulates against cornrows sucks.
I thought that the right to be an ass, like the right to be stupid, was enshrined in our founding documents. It's a necessary, inherent component of liberty. Whether that subsumes a right to suck is still controversial.
After re-reading Yoshino's article, I realized he does have a point. He has a new legal paradigm. That's what he says: While I have high hopes for this new legal paradigm ...
What, you may ask, is this new paradigm? I've been trying to figure it out. There are some clues:
With respect to legal remedies, we must shift away from claims that demand equality for particular groups toward claims that demand liberty for us all.
I was taught that claims were one thing, and remedies another, but here we seem to be mixing 'em. Okay, keep that disbelief suspended.
In an increasingly diverse society, the courts must look to what draws us together as citizens rather than to what drives us apart.
Put aside that first clause. I am not at all convinced that society is increasingly diverse, but it's not vital. I think he threw it in just to confuse me.
He's talking about courts. Not legislatures, not constitutional conventions, but courts. He's talking about judges gazing into the penumbras and traditional whatsits, and pulling out principles. There's certainly always room for interpreting and interpolating principles into the text of statutes and constitutions, but he's going far beyond that.
He's discarding 250 years (or more) of experience that tells us that legitimate laws arise from the consent of the governed, expressed through a constitution or legislature. Yes, I know, we also have a common law tradition. But the common law is supposed to develop in small steps, using principles from prior decision to decide new cases, and slowly deriving new principles from prior decisions.
We have a constitution and statutes declaring certain negative principles: congress shall make no law...; Nor shall any State deprive any person ...; no person shall be held to answer for a capital... . Yeah, there are a few affirmative statements of rights (the accused shall enjoy the right to a speedy trial) but those are comparatively narrow, and could as well be written as negative, prohibition on government action.
Yoshino throws all that into the trash. He congratulates the Supreme Court for two recent decisions resting on the declaration of rights not easily found in the text:
In 2003, the court struck down a Texas statute that prohibited same-sex sodomy. It did not, however, frame the case as one concerning the equality rights of gays. Instead, it cast the case as one concerning the interest we all - straight, gay or otherwise - have in controlling our intimate lives. Similarly, in 2004, the court held that a state could be required by a Congressional statute to make its courthouses wheelchair accessible. Again, the court ruled in favor of the minority group without framing its analysis in group-based equality rhetoric. Rather, it held that all people - disabled or otherwise - have a "right of access to the courts," which had been denied in that instance.
While I like the results in both those cases, and the right of access to the courts has (IIRC) been around a long time, this is very risky territory. We all know the difficulties with the right to privacy. Most of us probably know about substantive due process, and declarations of fundamental liberties such as the right to contract, which didn't turn out well.
New paradigm, indeed. He's concluding that we need a whole new theory of government, and a whole new legal system, while also conceding that "law will play a relatively small part in the new civil rights."
That's one hell of a conclusion to draw from the revelation about covering. Finally, I can't resist quoting the topic sentence of his concluding paragraph, because it echoes so clearly my position in #1, above:
This just brings home to me that the only right I have wanted with any consistency is the freedom to be who I am.
216: in agreement, except for a little quibble: cornrows didn't start in african-american communities; they started in sub-saharan Africa, *centuries* ago. As a way of keeping hair neat, clean, healthy, and beautiful, given all the hair-structure issues that have been pointed out.
there's also a very beautiful way of doing fuzzy african hair that involves creating rows of knobs of hair, instead of braiding; it's a woman's style. i wish that would cross the ocean over to the US too!
Virtually every black woman I know has stories about having complete strangers ask to touch her hair, comment on it, tell her it's "so exotic," etc. etc. etc.
One of the more embarrassing classroom situations I've ever been in was in a college sociology class, listening to some idiot white kid discover that kinky hair was not a sex-linked characteristic: he had believed that black men had kinky hair, but black women did not. And of course the only black woman in the class (likewise, the only black person) got stuck explaining that, no, if she didn't straighten her hair it would be kinky as well. In retrospect, the professor was distinctly a twerp for leaving her on the spot like that -- he should have explained the facts himself, with a strong overtone of 'what planet do you come from'?
... the professor ... should have explained the facts himself ... .
Was the professor white and male? There's a whole layer of patriarchy and racism implied by white males explaining the "facts" of black identity, rather than allow the black person to self-define. I see your point about not putting an uncomfortable student on the spot, so asking the student 'do you want to answer, or shall I?' might have been best.
Hm. In general, maybe, but a simple statement that hair texture is unlinked to sex is neither racist or authoritative -- it's a simple fact of general knowledge that it is surprising that anyone should not know. What the prof did left the woman in the position of 'explaining the mysteries of black-folk', and normalized the man's bizarre ignorance; of course he didn't know, you wouldn't expect anyone who wasn't black to know anything at all about secret mysterious stuff like black hair.
Does anyone else find this category of story as unsettling as I do?
Tia, yes! Lately, anyway. I've been obsessed with death lately; the thought of my consciousness not existing anymore is too horrible to bear, and has been keeping me up nights, no lie.
Next up: I attempt suicide, watch the Marx brothers in an old movie house, and end up marrying Diane Weist.
In my limited experience: simple facts aren't; general knowledge isn't.
I may be attributing too much to Sociology, but I thought it taught that (a) biology doesn't determine meaning; and (b) different people do things differently. In other words, that in a Sociology class it's appropriate to let the subject speak in their own voice about the social meaning of a chosen hair style. In a biology class, I'd agree that the simple fact of biology could be authoritatively declaimed by the professor, and the class should move on.
You describe a college class. Ignorance is expected in that situation. Acknowledging ignorance doesn't normalize it, in the sense of saying "it's okay to be ignorant." Rather, it says "aha! that's why you are here. You are about to learn something."
And I think that in an undergraduate Sociology class, it's appropriate to show how to learn about different people, people of a sort you may never have encountered before. It's appropriate to show that asking the subject if the subject wants to explain can be more respectful, and more informative, than talking about someone in the third person in their presence.
Yeah, although I don't know that it's dying in particular that freaks me out. I usually try not to think about it, or if I do, try to resolve the question my telling yourself, "Shit girl, better enjoy yourself and get stuff done." I am more freaked out by the concept of continuing in some sense, but without a coherent identity, either because you've lost your memory or people have lost their memory of you, and stop affirming your sense of yourself. I suppose this is just fear of death getting in the back door, probably precipitated by the knowledge that since I have been 26 for three months, my naked body is no longer worthy of John Derbyshire's attention, and no amount of exercise can change that now.
It's appropriate to show that asking the subject if the subject wants to explain can be more respectful, and more informative, than talking about someone in the third person in their presence.
Well, that was kind of my issue -- it transformed one of the students in the class into a object of study: there were 29 white students, who were students whose ignorance was being catered to, and one black woman who was an alien presence suitable for study. Asking her, directly, about her weird tribal hair-related practices might have been a more respectful way to study her than simply opining about her in her present, but she wasn't supposed to be under the microscope in that class -- she was supposed to be looking through the eyepiece with the rest of us.
Thanks apostropher, but it's one straight shot on the senescence expressway from here on out. Lies, no matter how lovely, can't comfort me. I wouldn't want to inflict the sight of mortifying flesh on you to futile end, especially when you already helped me repopulate the earth, mercifully, for you, while we were without electric lights.
... she was supposed to be looking through the eyepiece with the rest of us.
So, for the purposes of the class she was to be defined as normatively white? Uhm, isn't that really normalizing the 'sociologists are white folks who look at strange tribal groups' thing? Doesn't that ignore the whole idea that what is seen depends one who is looking, and what differences they bring to the observation process?
So, for the purposes of the class she was to be defined as normatively white?
No, she was to be defined as a student rather than an object of study. That doesn't make her 'normatively white' unless whiteness is an inherent characteristic of students.
Uhm, isn't that really normalizing the 'sociologists are white folks who look at strange tribal groups' thing? Doesn't that ignore the whole idea that what is seen depends one who is looking, and what differences they bring to the observation process?
This is a point, but the class, an Intro to Sociology core class rather than anything higher level, was taught from the perspective you describe -- not analysis of our own culture, but analysis of other, alien cultures. While that may have made it a bad class (it was a bad class) in the context of that class defining one of the students as an object of study really did have the effect of, at least for the length of the interaction, defining her as no longer one of 'us', the regular people in the class who learn about 'others'.
[the] Intro to Sociology core class ...was taught from the perspective you describe -- not analysis of our own culture, but analysis of other, alien cultures.
Ah. Thank you. That explains a lot. Not only bad pedagogy, but bad social science. When the class is premised on the us-white-folks/them-weird-natives you're bound to get uncomfortable moments.
One thing important to my education was learning of a bit of ethnography done by an anthropologist and some grad students. They did a classic study of kinship in the traditional anthropological way. They went and asked the natives the familiar questions: list all your relative; how do you define a relative? what do you call the person who has sex with your mother? The study was done among middle (or lower-middle) class whites on the south side of Chicago, in the early 1960s.
That you took a Sociology class that still taught from the old colonial model was unfortunate.
LB, that sounds like an awful class. I'm a sociology grad student, and while I haven't taught my own class yet, my general sense is that most instructors try to get students to interrogate their own lives and assumptions. It's not about studying "others," it's about studying "ourselves."
Also, I read the Yoshino article last weekend when it came out in the NYT and was aghast at his "discovering" of Goffman. I'm glad that folks here not in sociology also found that bizarre. Goffman is certainly up there when it comes to famous American sociologists. It's like somebody from a tangentially related discipline discovering that Rawls had something to say about justice.
I'm probably being too hard on the prof, as I'm sure he thought of himself as trying to "get students to interrogate their own lives and assumptions". He just struck me as incredibly unsuccessful in that regard.
My roommate's girlfriend, who is black, attended private schools and colleges where she was often the only black student, and tired quickly of 'speaking for the race' by well-meaning teachers. ('What's your perspective on the L.A. riots?')
But Michael is right that "analysis of other, alien cultures" isn't really how sociology is supposed to be done or taught.
In the professor's defense, it's difficult to teach about controversial topics like race, and nobody really tells you what a good way to go about it might be (at least in my experience). The conventional wisdom is that you'll figure it out as you go along, but that means you run the risk of doing something asinine and alienating students. And maybe you never do figure out a good way to teach controversial stuff.
Data-point: I'm reasonably generally well read, but never did any work in sociology past that one class. I'm almost completely unfamiliar with Goffman -- haven't read anything, and the name rings the very, very faintest of bells. This may be a blind spot on my part, but I usually feel pretty safe guessing that if I haven't heard of something, there are plenty of reasonably well educated people who haven't.
Jeebus. Just pick a new fucking sport, you filthy foreigner.
Posted by SomeCallMeTim | Link to this comment | 01-20-06 11:26 PM
When you obviously love me, but try to fit in by hating on me, that's
amorecovering.Posted by ogged | Link to this comment | 01-20-06 11:42 PM
So when I'm denied admission to a fancy restaurant because I'm wearing my ratty stained frayed jeans and a T shirt, in violation of their necktie requirement, I'm being deprived of my fundamental human liberty interest in personality, or grooming, or some such thing?
I could support that argument.
On the other hand, he seems to be saying that any social norm for which we can't show a compelling necessity must be discarded. Somehow that seems unlikely. Society has always had norms, and each little subset of society has its petty and arbitrary requirements. Like abjuring pleated pants. I can't imagine that every changing.
Posted by Michael H Schneider | Link to this comment | 01-20-06 11:51 PM
Wave your freak flag high, Michael H Schneider.
All of the examples Yoshino gives involve bad decision making by some superior. A high level of tolerance for people's behaviour and dress that doesn't affect their workplace effectiveness is a good thing. I certainly wouldn't want to work for an organization who demoted or fired people for wearing cornrows, speaking spanish, having babies, doing a same-sex commitment ceremony or wearing yarmulkes.
Posted by Joe O | Link to this comment | 01-21-06 1:09 AM
Well, this is really a fine example of academic entrepreneurship. Take a common phenomenon, rename it in some suggestive way ("covering"), and inflate the whole mess into a new, and frankly goofy approach to the law. Finally, ride the whole thing to a job at Yale law. Congratulations, Professor Yoshino!
Posted by baa | Link to this comment | 01-21-06 7:12 AM
Wave your freak flag high, Michael H Schneider.
I'm waving. Each of us has an obligation to be transgressive, as the learned professor points out:
People confronted with demands to cover should feel emboldened to seek a reason for that demand ...
I'd agree with baa, except that this guy hasn't even managed to rename it in some suggestive way ("covering"). All he's done is discover, and partially understand, the work of Goffman. That's nice. Goffman certainly did good work (see Asylums and Presentation of Self in Everyday Life and others). But that it comes as an eye opening revelation to a professor of law at Yale says a lot about the insularity of both Yale and law schools. I can't see anything in the article that's not either utter nonsense or blindingly obvious to anyone with some background in the social sciences - or isn't Goffman required reading any more?
Posted by Michael H Schneider | Link to this comment | 01-21-06 7:37 AM
It seems to me that rather than covering, Ogged should show some independence and marry his hot cousin -- American public opinion be damned!
Posted by John Emerson | Link to this comment | 01-21-06 7:37 AM
Man, baa, you're tense. Fron the article:
Looks to me as if he's recognizing that 'covering' doesn't fit comfortably into civil rights law as it now exists, and that the law can't be expected to expand to cover all situations where it is, somehow, unjust to ask someone to cover. He's talking about societal expectations, not encouraging a rush to the courthouse.
Posted by LizardBreath | Link to this comment | 01-21-06 7:42 AM
And shouldn't we be able to agree that, given that it is illegal to strike jurors for being Latino, it ought to be illegal to strike them for speaking Spanish?
Posted by Matt Weiner | Link to this comment | 01-21-06 7:52 AM
Yeah, LB, I saw the obligatory "the answer lies not in the law, but in the human heart" fig leaf. That doesn't mean that Yoshino precludes the emergence of fun and exciting legal rulings from his theory. Quite the contrary.
Anyway, as I say, my interest in engaging Yoshino's substance is minimal. Can't we just celebrate him as a brilliant player of the current glass-bead game?
Posted by baa | Link to this comment | 01-21-06 7:59 AM
Again, this:
Finally, ride the whole thing to a job at Yale law.
is untrue, and is empty vituperation. There's no suggestion that work on 'covering' had a thing to do with his getting a job at Yale law -- from the article, the instructions he got to cover as a junior faculty member led him to think about it.
It's fine with me if you disapprove of considering 'covering' in this sense an injury to a valuable liberty, or if you think the article is silly. Lying about the author in order to accuse him of having become interested in the idea purely out of insincere ambition seems uncalled for -- would you talk about someone like that if you expected them to answer you?
Just because someone's a liberal academic doesn't mean that it's cutely adorable to abuse them without basis.
Posted by LizardBreath | Link to this comment | 01-21-06 8:07 AM
It was only a few years ago that I started "coming out of the closet" about being an atheist. A lot of people still think atheism is weird. (Yoshino mentions the opposite problem: the believer at Yale who doesn't want to admit that because people will think he's dumb.)
Posted by Frederick | Link to this comment | 01-21-06 8:14 AM
Yoshiro's defined the (perhaps well-known) problem well. In the case of women & babies, it's very true. Male graduate students in my department have no fear of cutting out early to pick up the baby from daycare, or to schedule classes around their kids. Even at a very child friendly school, however, female graduate students don't have kids nearly as often and when they do, are very careful never to use the 'baby at daycare' excuse for anything.
They're good scholars and good dads. We're not as committed scholars because we're good moms.
But I have to wonder what Yoshiro's up to. This phenomenon isn't new, nor unidentified. He's given it a flashy name, but he's a legal scholar. I would be more impressed if he used his legal training to devise a solution; the article read as though he were playing sociologist.
Posted by Cala | Link to this comment | 01-21-06 8:24 AM
Well, he's writing in the NY Times Magazine for a lay audience. I don't think the aim is anything more elaborate than "Here's a phenomenon, which people have a tendency to analyze under civil rights law. While I think it's an interesting and important phenomenon, it doesn't fit comfortably under current law; we'd have to come up with a new framework if we wanted the law to cover this." The article isn't scholarship, it's an essay for general audiences.
Posted by LizardBreath | Link to this comment | 01-21-06 8:53 AM
Point taken. But give us a hint, or at least suggest a direction for the law? I mean, this phenomenon is pretty well known, isn't it? (If it's not, then the piece serves a purpose.)
I'm not saying he should shut up unless he has something new to say, but it does bother me a bit that none of his legal training seems to have much to do with his take on the phenomenon. He may be an academic, but that doesn't mean he gets to blather on any subject (cf. Volokh's 'statistical' arguments against being gay. Don't challenge me. It's academic freedom!)
Posted by Cala | Link to this comment | 01-21-06 9:04 AM
My guess is that this phenomenon is worth pointing out. Maybe everyone in the world knows that it's not really color-blind to fire anyone -- black or white -- for wearing cornrows, but I suspect not.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:07 AM
LB, Enough with the knee-jerk apologetics for your fellow liberal! Just admit it: this person is execrable.
What's the guy's name again? It doesn't matter -- just some stupid "cult-stud" flash in the pan.
Posted by Adam Kotsko | Link to this comment | 01-21-06 9:08 AM
My conservative wingnut dad has heard of this phenomenon. (This is the CalaDad standard of 'will it play in Peoria?') He thinks, for example, that it's not discriminatory to ban cornrows in the office because people should leave their culture at home. After all, he does.
(Then I pointed out the Jerusalem cross he wears, and the conservative hair style, and how those were 'culture' but acceptable because 'straight white male' is the dominant culture. Cue accusations of being an evil liberal. Fun stuff!)
I guess I figure that my dad's response to the article wouldn't have been that Yoshiro has pointed out a problem, but that he's pointed out a well-known fact that wouldn't have a solution even if it were a problem.
Posted by Cala | Link to this comment | 01-21-06 9:17 AM
But I think that does make it worth pointing out. There will be some people who just stick to the line that people who aren't straight white Christian males should do their best to act like them, but maybe Yoshino will get some other people to think about it some.
I do share your suspicion that he is jumping the sociologists' claim.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:21 AM
I'd even bet that Yoshiro's not really gay, but just a careerist.
Posted by SomeCallMeTim | Link to this comment | 01-21-06 9:21 AM
One would hope. I think what bothered me more was the presentation: This is NEW! Because if you tell a hardened conservative (or anyone really) that here is a NEW phenomenon that will shake their worldview, it better not be something that they heard about twenty years ago.
Maybe it is NEW.
Posted by Cala | Link to this comment | 01-21-06 9:25 AM
>is untrue, and is empty vituperation
>Lying about the author in order to accuse him of having become interested in the idea purely out of insincere ambition seems uncalled for
Whoa! Now who's too tense? Lying? Purely out of insincere ambition. Where do you get that from what I wrote?
This guy is clearly a modern academic superstar, Harvard BA --> some kind of Rhodes-like scholarship --> Yale law --> clerking for Guido --> professor. He's also invented/advancing a goofball theory in a time honored academic fashion. If Don Delillo can make fun of this kind of thing, why can't I?
Posted by baa | Link to this comment | 01-21-06 9:26 AM
baa, out of curiosity, what about his theory do you think is 'goofball'? That the phenomenon exists, or that this phenomenon is a problem, or that this phenomenon has a realistic solution?
At first glance it doesn't seem terribly goofball to note that if one defines 'appropriate office wear' as 'conforming to straight white Christian male stereotype' that one is tacitly discriminating against people for not fitting into that framework. Terribly obvious, maybe, but not terribly goofball.
Where does the goofyballnes attach?
Posted by Cala | Link to this comment | 01-21-06 9:38 AM
It seems to me that his theory suggests two stages (maybe these are involved). First is the idea that it's bad to restrict anti-discrimination traits to immutable traits rather than mutable traits, such as cornrows and yarmulke-wearing. (Note that religion is mutable, and being able to speak Spanish is immutable -- at least, you can't voluntarily lose it -- so the law as he derives it is already on shaky ground.) That suggests something like, you can't forbid a mutable trait that is disproportionately held by members of a protected class unless there's some legitimate purpose (or some other standard). That seems non-goofball to me.
Then there's his suggestion that all these things will someday fall under positive rights, like the right to personality or the right to marry who you please, of whatever sex. That would be an all-new conception of civil rights, not based on protected classes. But I think he marks that out as not around the corner.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:46 AM
maybe these are involved s/b "maybe these are explicitly acknowledged in the worked-out version of his theory," or something like that. Please just ignore all the other incoherent parts of that comment.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:49 AM
"The remedy lies in the human heart" itself requires covering, does it not? Accept the culture of personal liberty, or we will smite you in the NYT, etc. More on this later.
Posted by FL | Link to this comment | 01-21-06 10:04 AM
I think there's a relatively easy way to combine the two stages discussed in 24. I firmly believe that the world of civil rights exists almost entirely in the regulation of what employers can and can't require their employees to do; employers are almost always more restrictive and more capricious in their firings or denials than the government.
As it stands, a firing such as one for wearing cornrows doesn't get much scrutiny because it doesn't "discriminate on the basis of sex, race, religion or national origin" (note that sexual orientation isn't in Title VII anyway, so I think it's peculiar that Yoshino is surprised by the result he recounts).
Any firing or rule that does discriminate on the basis of a, b, c grounds has to be justified as a "bonfide occupational qualification" under title VII. The solution, I think, is that firing someone for any reason which is not a) akin to being laid off because they can't affor to pay you, or b) because of the quality of your work, if it has an identifiable, discrete reason (e.g. cornrows, baby at daycare), should be subject to this "bonafide occupational qualification" scrutiny. Of course, that jeopardizes the principle that employment is at-will, but I think restricting employers is pretty much the only legitimate way to make any progress in civil rights these days.
Posted by silvana | Link to this comment | 01-21-06 10:06 AM
Of course, that jeopardizes the principle that employment is at-will
Yeah, it seemed to me that an essential part of stage two is "everyone should have the right to avoid firing for no cause, not just members of protected classes." And that would make a big change in the law.
Posted by Matt Weiner | Link to this comment | 01-21-06 10:11 AM
Gee, you folks are harsh!
I'm a conservative lawyer who has published several articles on the topic of how affirmative action is a bad idea and should be unconstitutional, so I am, in a sense, this guy's natural legal enemy. That said, I can't see what is so objectionable about what he wrote. The phenomenon he describes is well known and, while I disagree with some of it, his discussion of it in the context of civil rights law is hardly radical.
What am I missing?
Posted by Idealist | Link to this comment | 01-21-06 10:18 AM
Of course, that jeopardizes the principle that employment is at-will
It's hard for me to imagine a worse solution, or one that is more likely to keep the political party supporting it out of power for my lifetime. I'd rather the govt. just gave people cornrow subsidies, to make them whole despite the discrimination they are sure to face.
Posted by SomeCallMeTim | Link to this comment | 01-21-06 10:22 AM
What am I missing?
Nothing. People are assuming that Yoshino is arguing that assimilationist bias is always bad, and that people should always be protected from their choices, but that's clearly not what he's arguing; just that there is an assimilationist bias, and that we need to decide in each case whether it's justified.
Posted by ogged | Link to this comment | 01-21-06 10:26 AM
I'm a conservative lawyer who has published several articles on the topic of how affirmative action is a bad idea and should be unconstitutional
Why does Idealist (like ogged and that Celtic-lovin' baa) hate black people?
Posted by SomeCallMeTim | Link to this comment | 01-21-06 10:27 AM
A lot of people still think atheism is weird. (Yoshino mentions the opposite problem: the believer at Yale who doesn't want to admit that because people will think he's dumb.)
This, along with ogged's original comment
any of us, including straight white males, can find ourselves "covering."
Make me think this is more in the realm of social psychology than even psychology. In some deep sense we could have an accepted common culture or trait that everyone feels deep down separate from to some extent. It's more about personal alienation from common culture. That may be more often true for people from certain groups, but it's a very rare person that doesn't feel alienated in some way. Except for FL, and he's busy covering for it.
Posted by cw | Link to this comment | 01-21-06 11:08 AM
Oops, make that social psychology more than sociology (in 33).
Posted by cw | Link to this comment | 01-21-06 11:09 AM
People are assuming that Yoshino is arguing that assimilationist bias is always bad, and that people should always be protected from their choices
I haven't seen anyone argue 'protect us from our choices' on this thread, but it's worth noting that Yoshino does focus on five cases in which the legal decision that no discrimination occurred seems intuitively incorrect.
He does note that not every choice seems to intuitively require protection, but I don't think it's misrepresenting his position to say that he argues that ignoring assimilation bias is an abdication of judicial responsibility to protect civil rights when he says "Unfortunately, it also represents an abdication of its responsibility to protect civil rights."
Posted by Cala | Link to this comment | 01-21-06 11:22 AM
I haven't seen anyone argue 'protect us from our choices' on this thread
I was thinking of this and the post just above it, which you should have been able to intuit.
Posted by ogged | Link to this comment | 01-21-06 11:26 AM
I'm sorry, I missed the earlier link to baa's weblog.
In any case, Yoshino does make a pretty big jump from the problems he mentions (which don't seem to be as similar as he claims) to a 'right to personality', which does seem to be open to ridicule. But I think such a principle misses the point.
The problem here, for example, isn't that employers aren't letting employees wear cornrows, but that they're not letting employees wear cornrows and cornrows are a traditionally black hairstyle.
Couldn't this be solved by a less radical proposal? Discrimination against certain groups for being those groups is wrong; but just as poll taxes were outlawed in part because they were a proxy for racial discrimination in voting, we can distinguish between rules intended to discriminate-by-proxy and rules that enforce social norms (like personal hygiene) that don't.
It's not always going to be a clear bright line, but it seems better than the alternative principle.
Posted by Cala | Link to this comment | 01-21-06 11:53 AM
That's what I was thinking of as stage one, but I think people concerned about covering would want to rule out intent to discriminate by proxy and disproportionate impact on the minority group without some legitimate purpose.
Here's the difference: Suppose that boss X forbids his subordinates from holding a knitting group on company property during the lunch hour, while not obstructing the group that goes to the conference room and practices their golf putts on their lunch hour. But X doesn't want to forbid knitting in order to stick it to women -- he thinks it's good to employ as many women as men, he just thinks that the women shouldn't knit, because knitting is prissy and annoying and bad.
When a bunch of women are fired for defiantly continuing to knit, stage-one Yoshino would say they should win their discrimination case, even though the intent of the regulation wasn't to discriminate against women. The thing is that because knitting is traditionally feminine, the knitting ban disproportionately affected women, and it serves no business purpose to make sure your female employees don't act all girly.
Posted by Matt Weiner | Link to this comment | 01-21-06 12:09 PM
(if "prissy" seems insufficiently gender-neutral, substitute "lint-puppety")
Posted by Matt Weiner | Link to this comment | 01-21-06 12:10 PM
lint-puppety
Weiner, several thousand comments too late.
Posted by teofilo | Link to this comment | 01-21-06 12:15 PM
In your example, X is being stupid, and I don't think we have to go to the tea-leaves of his intent to get that far. He may be a nice man who just thinks knitting is prissy, but the law can judge the disproportionate impact without wondering about his intent. (He may have intended it to get women to take up golf and join their male colleagues because he knows that if they segregate themselves they'll lose out over the long runs in their careers. It's still a stupid law.)
I'm not overly familiar with the language of civil rights law, but as I understand it, the intent is pretty irrelevant if the actual result is discrimination. (It doesn't matter if the poll tax is just to fund the booths in a poor and rural district.)
Posted by Cala | Link to this comment | 01-21-06 12:22 PM
he just thinks that the women shouldn't knit, because knitting is prissy and annoying and bad.
Why is this a bad thing? They can knit at home, after work. Absent bad intent, I'd rather he be allowed to organize his business along whatever lines he wants. What if he only hires people he doesn't find annoying, and he finds close-talkers annoying? They should win a suit against him?
Posted by SomeCallMeTim | Link to this comment | 01-21-06 12:27 PM
Cala, I don't know the law much either, but I think showing intent is often important. And, ahem, you mentioned intention to discriminate by proxy.
SCMT, hopefully coherent response coming, but I just wanted to point out that I put up a philosophy-professor in the thread about bombing the terrorists.
Posted by Matt Weiner | Link to this comment | 01-21-06 12:43 PM
I'm not overly familiar with the language of civil rights law, but as I understand it, the intent is pretty irrelevant if the actual result is discrimination. (It doesn't matter if the poll tax is just to fund the booths in a poor and rural district.)
The Twenty-Fourth Amendment forbids use of the poll tax in all federal elections. The Voting Rights Act confers additional rights.
The Supreme Court in Washington v. Davis construed the equal protection clause of the Fourteenth Amendment as forbidding only intentional discrimination. So, for example, the Supreme Court has upheld a Massachusetts law that gave a big hiring preference to veterans, even though the effect of that law was to disadvantage women. In two other cases, the Court even held, bizarrely, that it was legal for an employer to give its employees a health plan that covered vasectomies and other "male" stuff but not pregnancies. The majority of the Court held that this was not discriminatory because it denied coverage to all pregnant people, whether they happened to be women or men. Congress reacted by enacting the Pregnancy Discrimination Act.
Under other civil rights statutes, one can sometimes prevail by showing "disparate impact" on a particular group (blacks, women, etc.), even though the defendant may not have intended to discriminate.
Posted by Frederick | Link to this comment | 01-21-06 1:21 PM
It's kinda fun going to the link in 36 and counting all the typos. Counting conservatively, I get eight in the Yoshino post.
Posted by Frederick | Link to this comment | 01-21-06 1:43 PM
Nine, rather. I knew I was forgetting one.
Posted by Frederick | Link to this comment | 01-21-06 1:44 PM
Is there a reason I should have been able to intuit that ogged was thinking about two posts on a blog I don't read?
Posted by eb | Link to this comment | 01-21-06 1:49 PM
I hope to be more coherent after my nap, but let me make a few comments I'll probably regret in the morning.
1. The blindingly obvious:
A. People discriminate all the time. To live is to discriminate.
B. Much of this discrimination is on the basis of what could be called culture; shared values and meanings, e.g discriminating against people who wear pleated front pants.
C. Much of this discrimination is tied to power and status. People don't wear the Audemars Piguet watch because they think it's the best looking watch, but because it marks them as someone with a lot of disposable income.
D. Much of this discrimination is related to group affiliation markers (again, the watch, or the backwards baseball cap).
E. You will never find or create a society without this sort of discrimination.
2. The nonsensical:
A. That the only discrimination is by the dominant group against outliers. There's lots of discrimination by non-mainstream groups against other non-mainstream groups, and even against the mainstream. That's why we have concepts such as "sub-culture".
B. That we could ever be free of an assimilationist bias. At some point all societies decide who is in and who is out. Sometimes it's the people who wear pleated front pants that are out. Societies and groups always decide who is Us and who is non-Us.
C. That we could could require employers to prove, in each case, that a particular firing was done for bona fide business reasons.
D. That everything has a legal component. With some things, the law just doesn't deal.
Posted by Michael H Schneider | Link to this comment | 01-21-06 1:50 PM
Yoshino actually strikes me more as confused, and until he read Goffman's book (published in 1963, he notes) and discovered the new - new! - concept of covering, shockingly poorly informed about things. The Helen Keller reference alone seems odd in a discussion of the newness of it all, what with that being the 19th century and all.
Posted by eb | Link to this comment | 01-21-06 2:04 PM
For those of you unsatisfied with Covering Lite, but still interested in Yoshino's argument, here's the original Yale Law Journal article. Warning: it has more footnotes than just about any other YLJ article in history. Or so I'm told.
Posted by Standpipe Bridgeplate | Link to this comment | 01-21-06 2:23 PM
The table of contents has a footnote!
Wow.
Posted by Matt F | Link to this comment | 01-21-06 2:56 PM
Counting typos? That doesn't sound like fun. Try here.
Posted by baa | Link to this comment | 01-21-06 3:02 PM
Somehow, I thought the counting of typos really made one a little bitch. (Translation: if that's all you can say to baa, I think you've not done much to his argument, and you may be a tool.)
Posted by Cala | Link to this comment | 01-21-06 3:05 PM
So, along with Covering and Covering Lite, is there also a Covering Dry?
Posted by eb | Link to this comment | 01-21-06 3:15 PM
#42: The reason it's annoying is that in Matt's hypothetical, there's already a golf-putting group that meets at work. So "they can knit at home" doesn't address the real issue, which isn't that the boss objects to non-work activities at work; it's that he objects to certain non-work activities that *have nothing to do with ability to perform the job*.
Like at-will employment, it really perpetuates an extremely feudal/patriarchal (and I really don't mean that in a feminist sense, even, just in the sense of boss as daddy figure) idea of the employer's role. Not only is he supposed to run his business, cut the paychecks, and make sure people do their jobs; now he's supposed to pass judgment on their hobbies and character. That's what people are objecting to. Sure he has the *right* to fire whoever he likes (in part because we see employing someone as a form of association, and b/c we believe so adamantly in freedom of conscience). But it's objectionable to the democratic ideal to assume that economic power over someone *also* means one has moral power over them. And firing people for engaging in activities one finds "prissy" (or for their political beliefs, etc. etc.) is an attempt to exercise one's economic power to change *other* people's consciences.
Posted by bitchphd | Link to this comment | 01-21-06 3:18 PM
On the substance, particularly as regards employment law, this all makes me very nervous, because it seems fundamentally important that people be able to hire and fire who they want. As a society, we've designated some reasons we find illegitimate, like race and gender, but these other reasons can become very confining very quickly.
Posted by ogged | Link to this comment | 01-21-06 3:27 PM
Why does it seem fundamentally important that people be able to hire and fire who they want? I think that's the key question.
Posted by bitchphd | Link to this comment | 01-21-06 3:28 PM
I meant to note a few irritations with the article earlier, and I still don't have time to list them all, but the two that stuck with me are these. First, it is not the case that cornrows:black:: sex with women:lesbian. Second, if I remember right, the decision arising out of the Georgia firing noted that it's not unreasonable to believe that a woman who went through a commitment ceremony would be regularly violating the state's anti-sodomy laws.
Posted by FL | Link to this comment | 01-21-06 3:32 PM
Hey thanks Cala,
In long delayed answer to your question, you are probably right that goofy is too strong. Although calling the right to wear oddball clothing at work 'liberty-based' civil rights is, I think, silly.
The point of the corn-row case, as you point out, is that it's transparently racist. A 'no green-dyed mohawk' policy not so much. Yoshino sees it as a virtue of his approach that it draws no principled distinction between mohawk and cornrow. That's daft. Look, I'm a big freak, and so greatly appreciate that my coworkers and friends tolerate my freakishness. But "free to be you and me" isn't actually a principle of American law.
Posted by baa | Link to this comment | 01-21-06 3:36 PM
42: 55 gets it pretty much right, especially paragraph 1. (And you may have recognized an allusion to this, the point being that sometimes people can be really blind to the fact that their own group is not the archetype of morality.)
At-will employment means that the boss can fire you if he doesn't like your face, with certain exceptions. I'm not going to get into the debate over whether at-will employment is good or bad here, but the exceptions are important: We've decided that the boss can't fire you just because you're black, or a woman, even if he doesn't like black people or women. That's important. And according to w-Yoshino, we shouldn't let the boss fire you just because he's laid down an arbitrary rule that happens to come down hardest on women or black people or other protected classes. Nothing that amounts to "women are OK so long as they act like one of the guys" or "black people are OK so long as they avoid those kinky hairstyles," unless there's a legitimate business purpose. -- And I realize that, absent intent, this is hard to enforce. That's where the other half kicks in; if you put forth a rule that encourages this sort of covering without a legitimate reason, you're being an asshole whether you intend to or not, and you should stop.
(Possibly in re 26: "Cover up your 'God hates fags' bumpersticker because it's annoying your gay coworkers" is possibly a dictate to cover, but it's got a legitimate purpose.)
"They can knit at home" is off point, because the guys don't have to golf at home.
As for close talkers, the law doesn't protect close talkers. So they're SOL under the law, though it may be assholic to fire them without a legitimate purpose (in this case I suspect "you're getting in people's space all the time" may be legitimate). Unless it happens to be that more members of protected ethnicity X are close talkers, in which case firing all the close talkers may have an impact of flushing Xs from the workplace, or making them feel uncomfortable, and that disparate impact would be legally problematic.
Posted by Matt Weiner | Link to this comment | 01-21-06 3:47 PM
Well, Labs, but saying "it's not the case that cornrows:black::sex with women:lesbian" is, while *strictly* true, not actually true in the way people think about things. Lots of straight women have had same-sex experiences at some point (as have lots of straight men, if studies are to be believed). And in fact, if you follow the queer theorists at all, the idea that sexual *activity* connotes *identity* is really problematic. So you can be a woman who has sex with women, or wear cornrows, without being lesbian/black. But in the cultural mind, the associations are there.
As to the state's anti-sodomy laws, come on. *Everyone* violates anti-sodomy laws.
Posted by bitchphd | Link to this comment | 01-21-06 3:48 PM
Second, if I remember right, the decision arising out of the Georgia firing noted that it's not unreasonable to believe that a woman who went through a commitment ceremony would be regularly violating the state's anti-sodomy laws.
boh? since when do two women having sex with each other commit sodomy?
certainly there's no reason to think it is more often than heterosexual couples commit sodomy.
Posted by mmf! | Link to this comment | 01-21-06 3:50 PM
I believe the Georgia law included oral sodomy.
Posted by teofilo | Link to this comment | 01-21-06 3:57 PM
My last comment should have ended: "legally problematic" according to w-Yoshino, which is my interpretation of stage-one Yoshino as before.
The point of the corn-row case, as you point out, is that it's transparently racist.
The racism wasn't transparent enough for the woman to win her lawsuit under current law. So it seems that Yoshino might have a bit of a point, even if he takes it too far.
If you think at-will employment is really important, as per 56 -- and it may be -- then you have to stop with 'covering' as it applies to protected classes. That's where you get to the "angry white male" response, which is "How come all these Others get to express themselves and I don't get to fly my freak flag?" (Of course anything that required white people or men to cover -- maybe a no-facial-hair rule -- would fall under this law, since all races and genders are protected.) Then I think the move to stage two goes like, "Because your eccentricities don't make you a protected class." "That sucks." "The way to stop this is to make sure that firings have to be legitimate, and to make the case that the rules against your freakiness don't serve a legitimate business purpose." And then you've had to junk at-will employment.
As silvana said in 27, there's no way to get to the second stage without jeopardizing at-will employment. A right to personality will be in conflict with a right to fire someone because he annoys you. But you can knock out rules that make protected classes cover without going to the right to personality.
Posted by Matt Weiner | Link to this comment | 01-21-06 3:58 PM
btw, I think Yoshino should've stayed away from the Georgia case, since it seems to me that the plaintiffs in that case were trying to get protection against sexual-orientation discrimination by saying that "intimate associations" are protected. It's somewhat complicated by the fact that the Georgia AG apparently testified that he didn't fire her for being a lesbian, but for having a commitment ceremony. Still, if lesbians aren't a protected class, this strikes me as "First-class assholery, but not illegal."
Posted by Matt Weiner | Link to this comment | 01-21-06 4:04 PM
If you genuinely have fuzzy african hair and you can't put it in cornrows, what are you supposed to do? You are required to straighten it chemically??
That really is unreasonable, coming from a boss. it's a long pricey unpleasant process - and possibly bad for you too.
Or you are allowed to have a little 'fro???
(The reason it is a particularly nasty requirement is because there is a weird correlation nobody will want to talk about between it being the most practical thing for you to have cornrows and you're having lots of sub-saharan genes, or, put differently, the more "optional" it seems to you to have cornrows, the more likely you have straighter hair because of many white ancestors - so this policy is reminiscent of bad old preferences for "mulattos," for lack of a better word. It really is a racist requirement.)
Posted by mmf! | Link to this comment | 01-21-06 4:18 PM
63: is oral sodomy an actual concept? I have heard of oral sex, but never oral sodomy. That sounds like sophistry on the part of the Georgians to me.
If it is a concept, heterosexuals OBVIOUSLY engage in it.
Also, ahem. Just for the record here, away from Georgia. Sex between two women might but does not have to involve oral sex. That's just a stereotype. There is another practice, which only two women can do with each other - I don't want to go into big anatomical discussion but the couple needs two clitorises for it - and it's more prevalent from what I hear.
Posted by mmf! | Link to this comment | 01-21-06 4:30 PM
Oral sex is sodomy.
Posted by bitchphd | Link to this comment | 01-21-06 4:37 PM
Oral sodomy is a legal concept, dating from the time these anti-sodomy laws were enacted (i.e., a long time ago). Basically, "sodomy" denoted all "deviant" sexual practices, which were illegal (and often capital crimes). And yes, it applied to heterosexual couples as well.
Posted by teofilo | Link to this comment | 01-21-06 4:40 PM
interesting. so it has an all-encompassing "Sodom and Gomorrah" ring to it in the legal definition.
Posted by mmf! | Link to this comment | 01-21-06 5:02 PM
52: You're right, baa. That thing you linked to does seem to set new world and Olympic records for typos.
Somehow, I thought the counting of typos really made one a little bitch.
You say that like it's a bad thing.
if I remember right, the decision arising out of the Georgia firing noted that it's not unreasonable to believe that a woman who went through a commitment ceremony would be regularly violating the state's anti-sodomy laws
I think that's right (or at least presumably she would -- as mmf! notes, lesbians can do other things, like tribadism, using vibrators, dildos, etc.). If you accept the legitimacy of anti-sodomy laws, the decision even makes some sense. Happily, in 2003, the Supreme Court held in Lawrence v. Texas that laws against sodomy are unconstitutional.
*Everyone* violates anti-sodomy laws.
Not my mother-in-law (I base this statement on a remark she once made to my wife). But yes, no doubt a majority of people who live in states that have such laws, or who travel to such states, violate those laws. But all of those laws are unenforceable after Lawrence v. Texas.
Oral sex is sodomy.
I think the "traditional" definition of sodomy referred only to anal intercourse. But you're right that most laws against "sodomy" encompass both "anal sodomy" and "oral sodomy."
Posted by Frederick | Link to this comment | 01-21-06 5:03 PM
Teofilo says in 69 (how appropriate!):
Basically, "sodomy" denoted all "deviant" sexual practices, which were illegal (and often capital crimes). And yes, it applied to heterosexual couples as well.
True. In Lawrence v. Texas, the majority opinion written by Justice Kennedy notes that sodomy encompassed "deviant" sex, both heterosexual and homosexual, and bestiality. As of 1961, all 50 states made sodomy a crime. In 1961 (a number that, like 69, is the same upside down), Illinois became the first state to legalize it. (Yay, Illinois!) By 2003, when the Court decided Lawrence, only 13 states still prohibited sodomy, and 4 of those enforced the law only against gays.
Posted by Frederick | Link to this comment | 01-21-06 5:22 PM
72: 61 upside down is 19.
Posted by apostropher | Link to this comment | 01-21-06 5:35 PM
Sort of.
Posted by apostropher | Link to this comment | 01-21-06 5:35 PM
But 1961 upside down is 1961, more or less.
Posted by Matt Weiner | Link to this comment | 01-21-06 5:39 PM
And it was a fine thing when the gun-control thread got diverted to numerology, but surely we don't want to happen to this one, as it's been developing?
Posted by Matt Weiner | Link to this comment | 01-21-06 5:40 PM
Staying on topic is covering.
Posted by eb | Link to this comment | 01-21-06 5:47 PM
Yeah, man, numerology is, like, who we are. Don't bring your assimilationism 'round here.
Posted by teofilo | Link to this comment | 01-21-06 6:02 PM
24: I firmly believe that the world of civil rights exists almost entirely in the regulation of what employers can and can't require their employees to do;
I'd like to point out another area: public accomodations affecting interstate commerce. You can't have a sign on the door of your mini-mart saying "no negros, Irish, or Jews". You may have a sign on your restaurant saying "no jeans".
There are good reasons for different standards in employment cases than in public accomodations. As soon as I wake up I can go into that, if it's not obvious.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:11 PM
We have the right to serve refuse to everyone, not just certain groups.
Posted by eb | Link to this comment | 01-21-06 6:17 PM
We have the right to serve refuse to everyone, not just certain groups.
What? Have my language skills departed? I'm afraid I don't understand what you are saying here.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:22 PM
"Refuse" is a noun as well as a verb.
Posted by ben wolfson | Link to this comment | 01-21-06 6:28 PM
This frequently comes up with beards.
I heard about a similar case 10-15 years ago, in which several black men aledged that they had a painful condition with curly hair that made it difficult to shave, and they wanted exemptions from no beard rules because they applied unfairly to blacks with curly hair.
I drove for a taxi company around DC that had a no beard policy. It was clear to me that it was intended to keep the more devout muslims out of their cars. I made a lot of money there, though, so I shaved my van dyke when I drove.
Posted by cw | Link to this comment | 01-21-06 6:29 PM
57 Why does it seem fundamentally important that people be able to hire and fire who they want? I think that's the key question.
Three reasons. First, as you noted, there's the interest in free association (but not in the Fruedian sense). Second, there's the basic liberty interest in being able to run your business the way you want, without undue government interference. Third, there's the practical problem of disentangling all the complex motives and factors that affect hiring and firing decisions. If you ask someone "when you had to fire 4 people from this 8 person department for budgetary reasons, why did you choose those particular four?" you're likely to get a fact pattern from hell. Sure, if the only four jews were fired that raises some suspicions, but then you'll get the situation where the jew, by random chance, were the most recent hires.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:30 PM
Public accommodation - no jeans - right to refuse service to anyone - tired old joke about right to serve refuse - my comment.
Posted by eb | Link to this comment | 01-21-06 6:31 PM
85: oh. Right. Apology. I see it. I hadn't seen that joke in so long I'd forgotten it. That's probably because of my mandicap (under the ADA) or my protected cultural choices in which jokes to expose myself to.
57 Why does it seem fundamentally important that people be able to hire and fire who they want? I think that's the key question.
Three reasons. First, as you noted, there's the interest in free association (but not in the Freudian sense). Second, there's the basic liberty interest in being able to run your business the way you want, without undue government interference. Third, there's the practical problem of disentangling all the complex motives and factors that affect hiring and firing decisions. If you ask someone "when you had to fire 4 people from this 8 person department for budgetary reasons, why did you choose those particular four?" you're likely to get a fact pattern from hell. Sure, if the only four jews were fired that raises some suspicions, but then you'll get the situation where the jew, by random chance, were the most recent hires.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:33 PM
Thus endeth the discussion of lesbianism. *sob*
Posted by Matt Weiner | Link to this comment | 01-21-06 6:35 PM
83 This frequently comes up with beards.
Good example. Beards tend to be associated with both devout muslims and jews. But they're also associated with hippies, and rebellion, and Jesus. So to establish what you describe as an intent to discriminate on the basis of religion, against devout Muslims, there must have been other statements and actions. That gets us past having to rely solely on disparate impact
Can I claim mild dyslexia as a handicap, too?
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:40 PM
But they're also associated with hippies, and rebellion, and Jesus.
And ZZ Top.
Posted by apostropher | Link to this comment | 01-21-06 6:42 PM
87: sorry. We can go back to looking at lesbians, if you'd like
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:42 PM
And ZZ Top.
exactly. Quod erat whatsits.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:45 PM
Being a lesbian can (probably only occasionally) be an advantage in getting hired. (Ask Mary Cheney!) Around 15 or so years ago, two women who'd been hired by the Cook County Forest Preserve District (for entry-level jobs that paid around $13,000 a year) claimed that they'd gotten the jobs because they had, er, put on a show for George Dunne, president of the Cook County Board. Dunne was over 70, IIRC, and the predominant reaction seemed to be "attaboy, George!"
Posted by Frederick | Link to this comment | 01-21-06 6:48 PM
61: And in fact, if you follow the queer theorists at all, the idea that sexual *activity* connotes *identity* is really problematic.
B is making a crucial point here. Everyone else probably got it immediately, but I just can't control myself when I see a dead horse.
Actual studies of what behavior is associated with a particular protected class will lead us astray. It's not behaviorthat matters, it's the cultural meaning attached to the bahavior. If an employer refused to allow watermelon or fried chicken on company property, in an intentional effort to explude African-Americans, I'd say there's a problem even in the absence of studies showing that members of that group actually are disproportionally likely to eat those foods.
Dyslexia, poor memory, and a fondness for run on sentences. Truly, I'm in a class by myself
Posted by Anonymous | Link to this comment | 01-21-06 6:51 PM
just can't control myself when I see a dead horse.
Emerson, is that you?
Posted by apostropher | Link to this comment | 01-21-06 6:52 PM
92: Those were probably straight women who were forced to cover (uncover?) by acting as if they were members of the dominant group in order to get the job.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:55 PM
94: No, but I'm flattered by the comparison. Or are you mistaking narcophilia for bestiality?
Opps. I see that I forgot to sign 93. Identity is problematic. Sometimes I forget myself.
Posted by Michael H Schneider | Link to this comment | 01-21-06 6:58 PM
#84/86: Yes, but my point about freedom of association was that it's a *different* issue than employment. Logically, when you hire someone to work for you, you're not "associating" with them--you're employing them. You don't have to be their damn friend. You just have to cut them a check.
In other words, I think it's problematic that the distinction between *liking* someone and *employing* them is so damn blurry.
Posted by bitchphd | Link to this comment | 01-21-06 7:03 PM
60: Unless it happens to be that more members of protected ethnicity X are close talkers, in which case firing all the close talkers may have an impact of flushing Xs from the workplace, or making them feel uncomfortable, and that disparate impact would be legally problematic.
According to an anthropologist, Edward T Hall, in The Silent Language (also from the 1960s, if I recall), it is cultural. Such things as normal speaking distance, touching the other person, gestures, and the like are all markers of cultural affiliation.
Okay, with that off my (modest) chest, I can think about what B just said.
Posted by Michael H Schneider | Link to this comment | 01-21-06 7:09 PM
Thanks Michael, I vaguely remembered/suspecting that might be the case for close talking but didn't want to make stuff up here.
Posted by Matt Weiner | Link to this comment | 01-21-06 7:14 PM
Logically, when you hire someone to work for you, you're not "associating" with them--you're employing them.
I'm not sure I see the distinction as meaningful. Employment can be a major part of identity. Being associated with a particular job can be a major part of who one is, often construed in terms of how people in those jobs are seen. Consider used car salesmen.
Further, we see a lot of identity stuff mixed with employment these days. Whole corporate identities wrapped up with being one of the team. You're not just a clerk, you're ajunior associate. You're the sort of person we want at the company picnic. For a while there was a whole fad for sending employees on team building experiential programs. I'd often thought such things should be illegal, but I could never invent a principled reason.
Posted by Michael H Schneider | Link to this comment | 01-21-06 7:15 PM
Thanks Michael, I vaguely remembered/suspecting that might be the case for close talking but didn't want to make stuff up here.
Wow, I guess one really should lurk for a long time to discover *all* the informal rules around here. I'll make a note of that one, and promptly mislay the note. But I'm not making up the ET Hall reference.
Posted by Michael (soon to become Msch) | Link to this comment | 01-21-06 7:17 PM
narcophilia
Dilaudid is teh hott.
Posted by apostropher | Link to this comment | 01-21-06 7:19 PM
I must have been free associating to necroterrorism, but that was in another thread, and besides, the topic is dead. Can I refuse to discriminate against homonyms, and latent homonyms?
Posted by oopsie | Link to this comment | 01-21-06 7:22 PM
I must have been free associating to necroterrorism, but that was in another thread, and besides, the topic is dead. Can I refuse to discriminate against homophones, and latent homophones?
Posted by oopsie | Link to this comment | 01-21-06 7:22 PM
How does one terrorize the dead?
Posted by ben wolfson | Link to this comment | 01-21-06 7:27 PM
Eco-terrorism does not refer to terrorizing the environment, why does necroterroism have to mean terrorizing the dead?
Posted by eb | Link to this comment | 01-21-06 7:29 PM
#100: Yes, this is true. And of course, it's also true that in general, the desire to hire someone who "fits in" has been shown to be problematic, in diversity terms. I'm really not ready to make the radical argument that a sense of collegiality should be completely thrown out, but I'm interested in thinking seriously about the ways that one's sense of "who I am comfortable with" can be PROBLEMATIC. (I like that word, so, nyah, Ogged.)
And I really am kind of serious about the distinction between associating and employment. Why is it beneficial to give employeers complete discretion in hiring and firing? And are those reasons (whatever they are), more beneficial than making it illegal to fire people without cause?
Posted by bitchphd | Link to this comment | 01-21-06 7:30 PM
I was asking for independent reasons. I'm interested in knowing, ok?
Posted by ben wolfson | Link to this comment | 01-21-06 7:32 PM
Logically, when you hire someone to work for you, you're not "associating" with them--you're employing them. You don't have to be their damn friend. You just have to cut them a check.
And practically, collegiality, congeniality, personability, etc are generally considered positives. In many lines of business, they're essential; sales, consulting, & so forth. I've seen senior job candidates turned down because the department found them uncongenial.
You're not hiring your new best friend, but you'd best be hiring someone who can get along with the team and do the work. I can't see that happening without some kind of norms of behavior.
Yoshino's article would have been stronger if he had just told the angry white man to sit down. Not being able to wear a t-shirt to your business meeting just isn't in the same league as having to hope that your boss won't move you into a different job because you're female and had a kid. The standard to wear a t-shirt may be culturally created and arbitrary, but it's not biased against any one group (whiny white males don't count.)
Posted by Cala | Link to this comment | 01-21-06 7:33 PM
well, the mainstream white christian male answer is, of course, 'practice, practice, practice'. People who fly the freak flag would explain that if you don't already know, you're not one of us, so we'll not tell you. The answer in the business community is 'hire a necroterrorism consultant, or subcontract the job to a company with the appropriate skill set'.
Posted by Michael H Schneider | Link to this comment | 01-21-06 7:33 PM
b-wo: holy water and silver crosses?
Posted by Cala | Link to this comment | 01-21-06 7:34 PM
111: That terrorizes the undead.
Posted by apostropher | Link to this comment | 01-21-06 7:36 PM
How does one terrorize the dead?
You could burn and mutilate their bodies, as Iraqis did to the corpses of the "contractors"/mercenaries in Fallujah. As you'll recall, that motivated the Bush administration to kill 1,000 or so people in Fallujah in retaliation.
Posted by Frederick | Link to this comment | 01-21-06 7:41 PM
And practically, collegiality, congeniality, personability, etc are generally considered positives.
Yes, absolutely. But I don't see that these are necessarily connected to the whole "right to work" thing (which means, in legalese, the right for employers to fire you for any reason), or to the idea that employers have the right to fire people without cause--does it?
Posted by bitchphd | Link to this comment | 01-21-06 7:43 PM
And I really am kind of serious about the distinction between associating and employment.
Is changing one's mind allowed? I'm looking again and thinking there is a distinction.
I've often thought that there is a cultural distinction between public and private. I think I picked this one up from Goffman (Presentation of Self possibly). He speaks somewhere about how one acts when on stage (acting in a certain public role, as salesman, professor, father) differs from the rules for when one is off stage (acting in a different, usually non-public, role).
I'm not sure quite where I'm going with this, but a better answer will require more thought. It may be worth remembering, also, that the boundaries between on stage and off, as between association and employment, are diffuse, contradictory, and always contested.
Posted by Michael H Schneider | Link to this comment | 01-21-06 7:48 PM
didn't want to make stuff up here
Wow, I guess one really should lurk for a long time to discover *all* the informal rules around here.
Assuming that was what you were referring to, 'taint no rule against making stuff up; I just didn't want to make stuff up about ethnic groups, in this case.
I do think that the idea that you should hire people you're comfortable with can be problematic, in that we're often comfortable with people who are like us in various ways, and it's bad if likes only hire likes. (And no less, or more, than Virginia Postrel has used considerations like this to justify affirmative action.)
I think the best argument for at-will employment is based on economics, not freedom of association; arguably it would be inefficient to have to provide cause for (and document) every decision. Not saying this argument is decisive, though.
Posted by Matt Weiner | Link to this comment | 01-21-06 7:49 PM
Again, memory is dim, but Goffman probably used the term backstage, rather than offstage. He was talking, if I recall, in part about how the rules for conduct in the employee lounge, or in the green room, differ from the rules when one is performing.
Posted by Msch | Link to this comment | 01-21-06 7:50 PM
Is changing one's mind allowed?
Right, now you're banned.
bphd, I think right-to-work != at-will; right-to-work is some kind of union-busting thing, at-will is you can be fired or quit without cause.
Posted by Matt Weiner | Link to this comment | 01-21-06 7:51 PM
But, Frederick, does burning the body really terrorize the dead, or, on the contrary, does it not honor the dead, as some believe? Consider that to many Americans, it would be abhorrent to suggest that one eat one's deceased parent, but to among the Massagetae, this activity is common and considered the proper course of action. And is it not possible that by focusing on the body, we leave aside all possibility of terrorizing the dead, who, if they were in their bodies, would in fact not be dead?
Posted by ben wolfson | Link to this comment | 01-21-06 7:55 PM
I think most people are kind of shocked when they learn that at-will employment is the norm, i.e. as the cases say, that the employer can fire an employee for "a good reason, a bad reason, or no reason." I didn't learn that until my first semester of law school. One can see why legislators, and the courts, would be loath to give every employee who loses her/his job the right to sue. At the same time, it's disturbing that an employer can just fire at will (for example) a 29 1/2-year employee who's six months from qualifying for a pension. I don't know what the law ought to be, but employment at will is a license for employers to treat employees like dirt.
Posted by Frederick | Link to this comment | 01-21-06 7:56 PM
Apparently the Dissoi Logoi is not online.
Posted by ben wolfson | Link to this comment | 01-21-06 7:56 PM
Michael, I will warn you that my mind converts "Msch" into "Mensch". You might be joining the Ted club. If so, I apologize in advance.
Posted by Becks | Link to this comment | 01-21-06 7:59 PM
But Menschheit is a good thing!
Posted by ben wolfson | Link to this comment | 01-21-06 8:02 PM
115: Yes, Goffman definitely talks about that in Presentation of Self in Everyday Life.
119: I don't really believe in the concept of terrorizing the dead. I was just noting that somehow burning and mutilating the corpses of the guys at Fallujah was somehow seen as much, much worse than killing them, and our killing 1,000 or so people was somehow deemed a reasonable response to this. Of course, when our guys burn folks, mutilate their bodies, and post pictures of their handiwork to websites, that's just good clean fun.
Posted by Frederick | Link to this comment | 01-21-06 8:04 PM
119: I don't really believe in the concept of terrorizing the dead.
Listen, it's great that you wanted to note something about how certain actions performed on bodies affected the living, but if you had lurked here for a couple of years (as is the normal practice in internetwebland), you would have learned that we really don't tolerate going off topic.
Posted by ben wolfson | Link to this comment | 01-21-06 8:06 PM
Msch, don't know if you've been around long enough to see this analysis of banning. It's a compliment.
To terrorize the dead, of course, you go to Hell and chase their damned souls around a bit more. I believe Staggerlee does this to Billy Lyons in some versions.
Posted by Matt Weiner | Link to this comment | 01-21-06 8:09 PM
How'd you feel this morning, Becks?
Posted by apostropher | Link to this comment | 01-21-06 8:10 PM
Interesting link, MW. A cultural anthropologist would point out that she's missing something when she says that evoked sets are based on experience and exposure. It's deeper than that. Consumer choices, like everything else, have cultural meaning. Are you a Chevy guy or one of those latte drinking liberal Audi types? (that was a rhetorical, not a personal, question). The whole long thread about gayness and prissiness can be read as an exercise in defining the cultural meaning of certain consumer choices (Banana Republic or Gap?).
Her proposed remedy - You should also search through the other categories your mind uses to classify people is thus far easier said than done. Getting past one's culture, being able to see something from a different cultural perspective, is not a trivial task.
gak. I'm having trouble keeping up.
Posted by Michael H Schneider | Link to this comment | 01-21-06 8:12 PM
Like a geniuse.
Posted by Becks | Link to this comment | 01-21-06 8:14 PM
I felt perfectly fine - no hangover at all and bounced out of bed full of energy.
Posted by Becks | Link to this comment | 01-21-06 8:15 PM
Yes, the phrase 'right to work' refers to whether closed union shops (mandatory union membership) is legal; thank you for the link on banning; thanks for the confirmation on Presentation of Self in Everyday Society; Becks, I can be Ted for you, if that's what you need.
whew. I'm sure I still missed a bunch.
Posted by Michael H Schneider | Link to this comment | 01-21-06 8:17 PM
#118: You're right, Matt, my bad.
Everyone, please amend my #114 accordingly.
Posted by bitchphd | Link to this comment | 01-21-06 8:18 PM
Can I claim mild dyslexia as a handicap, too?
Not if you can spell "dyslexia", you can't.
Posted by John Emerson | Link to this comment | 01-21-06 8:20 PM
But I don't see that these are necessarily connected to the whole "right to work" thing (which means, in legalese, the right for employers to fire you for any reason), or to the idea that employers have the right to fire people without cause--does it?
"right to work" isn't "at-will", which means that neither side needs to justify their decision to quit working or to fire someone legally (assuming it's not discrimination). Really, it means if you want to fire me for being an asshole to the customers, I'm not going to be in a position to sue you to prove that I was being an asshole. If a guy's making the female employees feel creepy, I don't have to wait until it turns into full-blown sexual harassment until I kick his ass to the curb. They also don't need a grievance to quit, and can't be bound into a contract that makes it impossible for them to quit.
This doesn't seem like a bad system. It can be abused, of course, but in and of itself it seems preferable to the alternatives.
Posted by Cala | Link to this comment | 01-21-06 8:20 PM
Becks, I can be Ted for you, if that's what you need.
That's right, catch her on the rebound.
Posted by Matt Weiner | Link to this comment | 01-21-06 8:25 PM
I think the only way to terrorize the dead is to catch them while they're still alive. But maybe we should draw a distinction between dead and
dead: the latter term does not refer to the cultural assumptions we have concerning the living.Posted by eb | Link to this comment | 01-21-06 8:31 PM
Becks, I can be Ted for you, if that's what you need.
Hey!
Posted by teofilo | Link to this comment | 01-21-06 8:37 PM
126: Re: Terrorizing the dead is Hell. The terror of an afterlife in Hell terrorizes the living believers, and if one believes, one might be believing it terrorizes the dead, at least those insufficiently terrorized of death in their previous, now departed lives. I don't believe a word of it, let's see where that gets me...
Posted by Mr. B | Link to this comment | 01-21-06 8:48 PM
Being an at-will employee also means that if you fail to cover adequately, if your boss discovers your shameful secret (you're a Celtics fan!!) you can be fired for that reason. Now it may also be true that most Celtics fans are Muslims, or most Muslims are Celtics fans, or that being a Celtics fan is culturally defined as a marker of homosexuality. But that leads us into a morass.
Since everything can be (and often is) a marker of group afiliation, on what bases should it be legal and socially acceptable to disciminate? In what situations? Are discriminations which we find invidious in public accomodation allowable in emplyment? What other categories should be protected: do we allow discrimination against audi drivers and people who buy from The Gap, but not Celtics fans?
Those are interesting and important questions, but I really don't think Yoshino's article added much to the discussion.
And I retract my offer to be Ted. I was recently reading about an elderly barbarian horde that was reduced to looting, pillaging, and staring wistfully at young women. I could identify. It's time to admit my limitations.
Posted by Michael H Schneider | Link to this comment | 01-21-06 8:52 PM
Weiner is clearly right when he says, "the best argument for at-will employment is based on economics...arguably it would be inefficient to have to provide cause for (and document) every decision."
Getting rid of at-will employment would be an unbelievably bad thing. Also, it seems like most of the cases of "cover" discrimination are already handled by the suspect classes schema. Either he's firing you for being in a class we worry about, or he's not. Or more correctly, either it looks like he's firing you for suspect reasons or it doesn't.
Posted by SomeCallMeTim | Link to this comment | 01-21-06 9:09 PM
re 61: B, I was truncating like mad because of time constraints, but my point about cornrows was intended in (I think) a slightly different way. The idea is that being fired for cornrows seems different from being fired for sodomy or for yarmulke-wearing, in this way. I'm sympathetic to someone who says "if I don't have sex with other women, something very important has gone out of my life" or "if I cannot comply with my religion's demands, I've violated a commitment that gives meaning to my existence." Maybe I know the wrong black people, but cornrows don't seem to be as integral to a notion of identity that deserves so much weight.
That isn't to say that a cornrow prohibition is a good idea. Absent some story, it's stupid. But all of us live under stupid regulations governing appearance, and only some of these cases cry out to the heavens for redress.
I suspect the conversation will go something like this. We might agree that sharing some set of norms is important to coexisting. But every individual norm will not stand up to a certain kind of rational scrutiny, just as no particular hair is essential to be not-bald. Hence we end up somewhere we didn't want to be.
As for the sodomy case: keep in mind that this is the Bowers of Bowers v. Hardwick we're talking about. We agree that the law is stupid, but given that the law is the law, it would be very weird to accept, with no action whatsoever, that someone in the DA's office is consistently violating it. Or, rather, it would be weird to give legal protection to someone who was doing this.
Posted by FL | Link to this comment | 01-21-06 9:13 PM
Sorry-- to head off confusion, I mean not only that she's violating the law in a quiet way, but that she's basically announcing her intentions to do this on a regular basis.
Posted by FL | Link to this comment | 01-21-06 9:15 PM
136: But maybe we should draw a distinction between dead and
dead: the latter term does not refer to the cultural assumptions we have concerning the living.Good point. Americans tend to neglect that distinction, but it becomes obvious when considering groups that have practices such as shunning. In the western europen tradition, if I understand it correctly, declaring someone outlaw was cultural death. After that, it was just a matter of waiting for biology to recognize the social fact.
Posted by Michael H Schneider | Link to this comment | 01-21-06 9:20 PM
It might be necessary to argue to some people that a cornrow prohibition is stupid. There is a vague association between cornrows and thug. This doesn't make their position any more reasonable, but it may be worth considering that this could be a hidden premise, and that the anti-cornrow person may not be motivated simply by a desire for conformity.
Posted by Michael | Link to this comment | 01-21-06 9:22 PM
Also, it seems like most of the cases of "cover" discrimination are already handled by the suspect classes schema.
This just isn't true, if what Yoshino says about mutable and immutable traits has any basis in fact.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:25 PM
Maybe I know the wrong black people, but cornrows don't seem to be as integral to a notion of identity that deserves so much weight.
Aren't you adopting an objective, reasonable person standard for deciding what aspects are central to identity? In other words, aren't you saying that the mainstream male white christian norms define what is central to the identity of black lesbians? I have trouble with that. Presumably, in the example, it was something the employee cared deeply about.
Posted by Michael H Schneider | Link to this comment | 01-21-06 9:26 PM
I think terrorizing the dead is about getting control of their narratives: inflicting damage or their reputation and descendents. Again, it's only really effective you manage to issue a threat to these things before they die.
But isn't whatever would make them "turn over in their graves" terrorizing them?
Posted by ac | Link to this comment | 01-21-06 9:28 PM
and that the anti-cornrow person may not be motivated simply by a desire for conformity.
To what does this respond? FL's talking about the harm to regulated person, and the assumption is that the anti-cornrow policy is not a concealed anti-black policy. (If it is, there are already remedies available.)
Posted by SomeCallMeTim | Link to this comment | 01-21-06 9:29 PM
re 146: obviously I'm relying on something *like* "an objective, reasonable person standard", at least insofar as I think there are better and worse stances to take on what's worth fighting for and what's not.
But I deny that "in other words" this amounts to "the mainstream male white christian norms" being the right ones. Note what I said about talking to the wrong black people: I'm suggesting that the cornrows aren't regarded this way within "the black community" or whatever notion should take its place. If they were, we'd have a different problem.
Practical problem: if whatever really really matters to me deserves protection, we reach absurdity.
Theoretical problem: I know it's hard to distinguish just which features are significant in the relevant ways and which are not. But this is not at all to say that there is no distinction.
Posted by FL | Link to this comment | 01-21-06 9:34 PM
FL's talking about the harm to regulated person, and the assumption is that the anti-cornrow policy is not a concealed anti-black policy.
I think the court concluded, rather than assumed, that the anti-cornrow policy wasn't a proxy for race. That was the Bo Derek defense. It may be that the court simply reached an erroneous conclusion (something not entirely unknown in jurisprudence). From that one reaches two possibilites: either say 'oh well, justice is imperfect'; or ask 'how and why could a court come to an obviously mistaken conclusion? What led to this mistake, and are they worth scrutiny?'
Posted by Michael H Schneider | Link to this comment | 01-21-06 9:37 PM
145: I wrote that badly. I think (but I have no knowledge ) that the law allows people to show that a facially neutral rule is being used solely for the purpose of discriminating in prohibited ways. If 99% of black employees receive an "unsatisfactory" rating on annual reviews, while only 2% of all other employees receive an "unsatisfactory"rating on annual reviews, the employer is going to lose his case.
I'm not concerned about the sort of assimilation discrimination that the professor is talking about; I'm not sure if you are, either.
Posted by SomeCallMeTim | Link to this comment | 01-21-06 9:37 PM
Actually, the cornrow/thug connection shows why the covering analysis might be useful IMO. You can imagine someone who, with no overtly racist intent, decides that employees will stay away from anything vaguely thuggish. Except their conception of 'thug' includes a bunch of things that are associated with black people (and not, say, things associated with working-class white people). So you get a bunch of policies that disproportionately affect things black people might want to do, and basically amount to "Black people are fine as long as they don't act too black."
I think that would be legal under current law, because there is no explicitly discriminatory intent, but that it pretty much is discriminatory, and it would be nice if there were some remedy (though I don't know how practical the remedies are).
Posted by Matt Weiner | Link to this comment | 01-21-06 9:39 PM
I don't think there are remedies available, now, though. If Yoshino's at least right about the case data, wearing one's hair in cornrows wasn't considered to be a covert anti-black policy.
It seems to me that it is; I can't imagine a health and safety reason, or a neatness reason, or a professional appearance reason (especially when the alternative is what, nasty chemical straightening?) that doesn't seem to assume that looking black is unprofessional. (I'm not sure about the thug connection; too many little girls in my neighborhood with little cornrows and pink barettes.)
I don't think we need to go as far as Yoshino in order to get a case like that covered; it just doesn't seem ridiculous that this sort of measure could be used as a proxy for discrimination, and mutable/immutable doesn't seem to capture my intuitions on this.
Posted by Cala | Link to this comment | 01-21-06 9:39 PM
Posted 152 before I saw 151.
I'm not concerned about the sort of assimilation discrimination that the professor is talking about; I'm not sure if you are, either.
That's the disagreement. I am concerned with it. "Women can work here as long as they're not too girly," "Black people can work here as long as they don't act too black," "Jews can work here so long as they don't flaunt their yarmulkes," I think all those things suck.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:42 PM
Acting black-thug and acting black are not along a line, Matt.
Posted by FL | Link to this comment | 01-21-06 9:43 PM
Except their conception of 'thug' includes a bunch of things that are associated with black people (and not, say, things associated with working-class white people).
But you could argue, on the data that the rule will yield, that it was a discriminatory policy with the wrong intent. You might be wrong, but your evidence will the same as if you were right. And it isn't as if the judge or jury is simply going to take the employer's claims that its policy wasn't a proxy for race at face value. It's not a straightforward schema, but it addresses the concern you have.
Posted by SomeCallMeTim | Link to this comment | 01-21-06 9:44 PM
I think terrorizing the dead is about getting control of their narratives: inflicting damage or their reputation and descendents.
But we read in The Nicomachean Ethics that posthumous damage to one's reputation, or the shameful behavior of one's descendants, &c, affects the quality of one's life (and presumably these same things are among those which would make the deceased spin in his/her grave). How can we terrorize the dead person qua dead person?
Posted by ben wolfson | Link to this comment | 01-21-06 9:46 PM
Part of the subtext here, if I know anything about discrimination law, is that proving intent is hard. It'd be hard to prove that the cornrow policy was intended to make life difficult for black people, even if that were the case, unless someone was stupid enough to put it in writing.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:47 PM
155: Do you think the people who are worried that a black employee's cornrows make him 'too black' are really drawing a sharp distinction between 'black' and 'black thug'?
Posted by Cala | Link to this comment | 01-21-06 9:48 PM
Part of the subtext here, if I know anything about discrimination law, is that proving intent is hard.
You're likely to be much better informed than I, but I'd want to know from what data that conclusion came. The cases that go to trial are going to be the ones in which the employer thinks he has a reasonable shot of winning; otherwise, he'll settle.
Posted by SomeCallMeTim | Link to this comment | 01-21-06 9:51 PM
Acting black-thug and acting black are not along a line, Matt.
Depends on whose concept of 'thug' you're using, doesn't it? I'm not talking about someone who actually forbids thug-like behavior, I'm talking about someone (like the people Michael mentioned in 144) who forbids a bunch of black-identified things because they think they're thuggish.
Posted by Matt Weiner | Link to this comment | 01-21-06 9:53 PM
It depends on what they say about other things, doesn't it? I'm not denying that anti-thug policies are motivated by racism, but I'm balking at saying that the problem with dressing in the menacing Death Row (records) style is that it's "too black" as if black people in, say, kente cloth and whatnot are *less* black. What made THAT the standard of blackness?
Posted by FL | Link to this comment | 01-21-06 9:55 PM
How can we terrorize the dead person qua dead person?
Terror, as a kind of fear, requires that there be some state of affairs in the future that one wishes to avoid. Do the dead have a future? Isn't being dead precisely to be without a future? Heaven is where we have everlasting life, but hell is no different, except that the life is one of torment. To be dead, as opposed to being undead or immortal, is to be beyond the reach of terror.
Posted by ogged | Link to this comment | 01-21-06 9:58 PM
I have this vague recollection of a prominent blogger arguing that certain people should cover their unconventional behavior because it accorded with the norm and thus, his aesthetic. When was this? I just...can't...remember....
Seriously, I am reminded of a student I came across who had changed her very Asian name to an American one, except that she misspelled it, so that, I noted with amusement, anyone who saw her name in print but didn't know her would assume she was black. It did a little damage to her assimilationist aims.
You're likely to be much better informed than I, but I'd want to know from what data that conclusion came. The cases that go to trial are going to be the ones in which the employer thinks he has a reasonable shot of winning; otherwise, he'll settle.
If I correctly understand anti-discrimination law, the fact that employers are settling a bunch of cases does not mean proving intent is not hard; you don't have to prove intent to win an anti-discrimination case, just disproportionate impact. (Apologies if this is duplicative of other stuff on the thread, and I could have just pointed to another comment.
Posted by Tia | Link to this comment | 01-21-06 9:58 PM
[redacted]
Posted by [redacted] | Link to this comment | 01-21-06 10:01 PM
By the by, I'm not willing to concede that the cornrow policy was necessarily a proxy for race. It depends on exactly how the policy was written.
I can imagine a provision in and employee handbook which would forbid cornrows, and also forbid a number of hairstyles popular among white folks. It would probably say 'people with straight hair must wear their hair like this, wavy hair like this, and naturally tightly curled hair like this.' That would deprive everyone of their fundamental freedom of self-expression, irrespective of race.
Posted by Michael H Schneider | Link to this comment | 01-21-06 10:02 PM
We are all listening to "Fear of a Black Planet" right now, correct?
Posted by SomeCallMeTim | Link to this comment | 01-21-06 10:03 PM
Isn't being dead precisely to be without a future?
You make a good point! For instance, it has been argued by prominent theorists, for instance in the treatise Heaven (interesting despite its jejune title) that "Heaven is a place where nothing ever happens". Supposing that we believe in Heaven and Hell, it would be rash to suggest as a possible mutandum giving rise to a future a change in celestial station; if we don't, of course, we are no better off. However, I am not sure I agree with your analysis of terror as a species of fear—or at least of fear as requiring a future state to be avoided. For consider a moviegoer who, watching a scary movie, feels fear: perhaps she does indeed wish to avoid a future state in which she is devoured by zombies, but she doesn't really think this is a possibility!
Posted by ben wolfson | Link to this comment | 01-21-06 10:08 PM
162: We're talking about a hypothetical here, so I can't say what they might think about kente cloth. And I don't really mean "too black" seriously, as if there really were some continuum of blackness.
Still, even if the employers ban cornrows but not kente cloth, I think it's a bad thing that they're doing something that has disproportionate impact on some black people. If they ban putting crucifixes on your bookshelf, that won't affect those Christians (not more or less Christian than any other) who don't display crucifixes anyway, but it's still anti-Christian. Even if the grounds are that displaying the human form disrupts your modernist interior design.
Posted by Matt Weiner | Link to this comment | 01-21-06 10:09 PM
Now, if you mean that the dead, being changeless, are timeless, and thus unthinking or some such, I admit that it will be hard to terrorize them. But we shouldn't give up just when it becomes difficult!
Posted by ben wolfson | Link to this comment | 01-21-06 10:09 PM
I'm confused again.
FL in 142: Maybe I know the wrong black people, but cornrows don't seem to be as integral to a notion of identity that deserves so much weight.
FL in 165: You see the kind of pious liberal territory I want so much to avoid: "oh look, it's behavior associated with parts of the black community; thus we must embrace it."
I'm having trouble reconciling these statements. You seem to want to protect things that are somehow at the core of blackness. If so, is there a better standard than immutable traits?
Posted by Michael H Schneider | Link to this comment | 01-21-06 10:14 PM
It would probably say 'people with straight hair must wear their hair like this, wavy hair like this, and naturally tightly curled hair like this.'
If someone told me I had to straighten my hair in order to work there, I'd exercise my at-will option.
I'd be surprised. Usually the places I worked that had such requirements usually limited requests to concerning facial hair on men, unnatural colors, punk styles, some piercings, and so forth. Tied back if one was working with food.
It usually didn't detail what styles were acceptable for what hair types. Most minimum wage places didn't have a problem with cornrows, either (which is why an explicit prohibition of cornrows strikes me as overly conformist.)
Posted by Cala | Link to this comment | 01-21-06 10:16 PM
Even if we except the premise that fear requires a realistic belief in a change in future state, it could still be possible to terrorize the dead if it were possible to revive them, because then their state could change. So that's what you should set your sights on, young Ben.
Posted by Tia | Link to this comment | 01-21-06 10:16 PM
I don't see the incompatibility yet, Michael.
Posted by FL | Link to this comment | 01-21-06 10:20 PM
ben, obviously we need to split the dead person's mind into two bodies just before he expires. Then, according to Parfit, he will be properly concerned about both of his future selves; we could terrorize the living one and that should coulnt for terrorizing the dead one.
Posted by Cala | Link to this comment | 01-21-06 10:20 PM
172: I'd be surprised. Usually the places I worked that had such requirements usually limited requests to concerning facial hair on men, unnatural colors, punk styles, some piercings, and so forth.
Sorry, didn't mean it was common, I only meant that it's possible wo forbid cornrows with neither discriminatory intent nor discriminatory effect. That is, the example, as we have it, is missing important information (unless I missed something, which is also likely)
May we discriminate against spiky hair and piercings, which disproportionately impacts the young?
Posted by Michael H Schneider | Link to this comment | 01-21-06 10:23 PM
165: Sure, but this started out with the claim that some people associate cornrows with thugs. There's nothing intrinsically wrong with cornrows, and defending it isn't "oh look, it's behavior associated with parts of the black community; thus we must embrace it," it's "who gives a flying fuck about cornrows? really? why would you care if not out of a desire to make certain black people conform?"
I'm really wary of the counter-pious liberal position -- the On the Jewish Question position -- that says, "We believe that members of all groups have equal rights to act exactly the way that we like to act, because that's the only way to act, really."
As Tia alluded to, there was a lot of that going around here, with lots of guys happy to say that women shouldn't act in stereotypically girly ways because those were products of oppression, and if a woman did act that way it was OK to shame her. If everyone takes that to heart, the immediate result will probably be a bunch of guys sitting around complaining about how women can't take the heat. And as you know this is not entirely an academic worry about our discipline.
Posted by Matt Weiner | Link to this comment | 01-21-06 10:24 PM
And if you want to terrorize the Dead, steal their pot. Jeez.
Posted by Matt Weiner | Link to this comment | 01-21-06 10:25 PM
Short version: I want to make room for features that are (in some difficult but important sense) closer to the core of someone's identity, without giving the individual absolute power to define that. I want to give more weight to yarmulkes than to cornrows, unless several actual people say sincerely that cornrows are not just a desirable aesthetic choice but one that really causes pain if prohibited (in the way that a violation of religious custom might). I also want to leave room to say that certain claims about how looking gangsta is merely an expression of blackness are bogus. I think these fit together.
Anyway, more on this later. I'm tired, and I don't want to talk about this when I'm tired.
Posted by FL | Link to this comment | 01-21-06 10:27 PM
I don't see the incompatibility yet, Michael.
My fault, I'm not being clear.
Somewhere way back you were saying that cornrows to race is not like sex with women to lesbianism. From that, I drew the perhaps unwarranted inference that there was some essential, core aspect to blackness that you believe should be legally protected.
Currently, the law draws that line at immutable traits (if I understand the law) or mutable traits where there's a showing of discriminatory intent.
You seem to be open to the notion that mutable traits, if sufficiently central, perhaps should be protected, but you won't go as far as MW in saying that any trait culturally or statistically associated with race should be protected.
Where would you draw the line, and why?
Posted by Michael H Schneider | Link to this comment | 01-21-06 10:29 PM
Matt, I'm pretty sure I said explicitly (above) that the cornrow policy sounds completely stupid.
We believe that members of all groups have equal rights to act exactly the way that we like to act, because that's the only way to act, really
Yes, this has been my position about black people all along, as is clear from my comments.
Posted by FL | Link to this comment | 01-21-06 10:31 PM
I think my 180 was answered in 179. I wish I were quicker
Posted by Michael H Schneider | Link to this comment | 01-21-06 10:32 PM
Sorry, Matt, didn't mean that in the way it came out. Will sleep before commenting more.
Posted by FL | Link to this comment | 01-21-06 10:42 PM
I think FL ends up with something like 'a right arising from the penumbras and emanations of the free expression clause of the 1st Amendment, encompassing things so central to our understandings of personal identity that their deprivation would offend our concepts of substantial justice and individual liberty.'
Personally, I've always hated standards like that.
Posted by Michael H Schneider | Link to this comment | 01-21-06 10:43 PM
OK, I want to give more weight to yarmulkes than cornrows too, since it's mandatory vs. optional, but I want to give some weight to cornrows. A little more weight than "It's a stupid policy but there shouldn't be any redress for it." And I have no particular brief for looking gangsta, but I think that there's probably a lot of pressure to conform on black people that doesn't just result from dislike of gangstas.
Sorry, Matt, didn't mean that in the way it came out. Will sleep before commenting more.
No problem, I just deleted something pretty snippy on preview myself. Maybe it's like this: "oh look, it's behavior associated with parts of the black community; thus we must embrace it" and "members of all groups have equal rights to act exactly the way that we like to act" are two opposite poles of piety, and each of us is afraid that reaction against one will push us to the other.
Posted by Matt Weiner | Link to this comment | 01-21-06 10:49 PM
I once saw a dress code for bank tellers. It was a 1 1/2 page single-spaced list, probably 40-50 items. Things like "Eyeglass frames must not be darker than hair color." No stone was left unturned. It was directed at an predominately white-Christian-female labor pool with a moderate number of East Asian women in it.
In a context of this kind, any recognition of group-identity dress or grooming would have been seen by the bulk of the labor pool as an individual escape from the crushing regimentation that everyone else suffered from, and it could very well have been gamed that way.
Posted by John Emerson | Link to this comment | 01-21-06 10:57 PM
Speaking of raising the dead, I watched Heaven Can Wait (the Warren Beatty one) on DVD tonight. I had seen it before when I was a kid, and remembered it as a fun romantic comedy, though I couldn't recall precisely how it ended. I watched it this time and was so freaked out at the end I started to cry, and I was embarrassed to be crying at Heaven Can Wait, so I hid my face from my boyfriend, but then I broke into sobs and could conceal it no longer.
SPOILER
How did what Warren Beatty get compensate him in any meaningful way? His self wasn't preserved! Those fuckers. How did that resolution satisfy me when I was ten?
I wonder when precisely it was I became so out-freaked by loss of memory and identity stuff, but it must have been sometime between seeing Heaven Can Wait and Waiting for Godot (that's a funny juxtapostion of titles). That stuff in the second act where character A is asking character B (don't rememember which they were) about all the stuff that happened in Act One, and character B doesn't remember anything had me hysterically sobbing when I was 16, and everyone in the theater was like, damn, that kid must be having an existential crisis. I suppose the only reason I can bear to watch soap operas is that you always know the amnesia sufferer is going to get her personality back in the end--although, wait, Jason on GH never did. But I started watching after he was already taciturn Jason; maybe that's why I wasn't wigged out.
Does anyone else find this category of story as unsettling as I do? Also, what's the name of that black and white English movie from the forties that's sort of like Heaven Can Wait and has a big staircase in it? I can't remember.
Have I mentioned I can't sleep?
Posted by Tia | Link to this comment | 01-21-06 11:12 PM
Wasn't the terror of the dead the theme of the films Abre los ojos and Vanilla Sky?
Posted by ac | Link to this comment | 01-21-06 11:17 PM
Well, there I think he wasn't really dead. Just mostly dead, as Miracle Max would say.
Posted by Tia | Link to this comment | 01-21-06 11:21 PM
How did that resolution satisfy me when I was ten?
Because he still gets Julie Christie in the end. She gives him the requisite recognition. At least enough to satisfy a little kid, I suppose.
Posted by ac | Link to this comment | 01-21-06 11:22 PM
what's the name of that black and white English movie from the forties that's sort of like Heaven Can Wait and has a big staircase in it?
Heaven Can Wait is a remake of a movie with "Mr. Jordan" in the title. Here Comes Mr. Jordan, I think.
Or do you mean that British film where David Niven is a pilot?
Posted by ac | Link to this comment | 01-21-06 11:28 PM
yeah, that one! What's it called?
Posted by Tia | Link to this comment | 01-21-06 11:33 PM
It turns out the David Niven movie was called Stairway to Heaven, so that seems... likely.
Posted by ac | Link to this comment | 01-21-06 11:34 PM
Ah, I see, A Matter of Life and Death in Britain and Stairway to Heaven here. I thought it might have been Stairway to Heaven, but I googled "Stairway to heaven movie" and got something else. Thanks ac! Before you gave me David Niven's name, I had nothing googlable.
Posted by Tia | Link to this comment | 01-21-06 11:36 PM
You're welcome. One of those guys involved in Trainspotting, Danny Boyle perhaps?, is related to the guy who wrote the Niven movie. And That's why they made A Life Less Ordinary, as a sort of tribute. Not the most successful of tributes, but oh well.
Posted by ac | Link to this comment | 01-21-06 11:44 PM
Anyway, I think you're right, ac, that as a kid I must have thought that TRUUE LOOOVE (to be read in the voice of Westley on Miracle Max's table) constituted the core of identity, and so been mollified. At least I know I've learned one thing since I was ten.
Posted by Tia | Link to this comment | 01-21-06 11:51 PM
The drama teacher at my junior high wrote his own scripts and based them off of real movies and plays: they were all musicals and all the songs were parodies. The first I attended was, I think, Heaven Awaits (it's possible that the first I saw was Jokelahoma); only later, when I saw an ad for Heaven Can Wait on tv, did I realize that it was based on something. But I've never seen the movie and no longer remember most of what happened in the play.
Posted by eb | Link to this comment | 01-22-06 12:11 AM
I watched it this time and was so freaked out at the end I started to cry, and I was embarrassed to be crying at Heaven Can Wait, so I hid my face from my boyfriend, but then I broke into sobs and could conceal it no longer. . . . Have I mentioned I can't sleep?
I was thinking, "Jesus, Tia, get a grip," and then I realized, "Oh, yeah, I'm suicidal! Ha!"
Posted by Frederick | Link to this comment | 01-22-06 12:30 AM
I think I've said this before, but it bears repeating: 2oz rye or bourbon, a little simple syrup, and 2 dashes peach bitters makes for goodness.
Posted by ben wolfson | Link to this comment | 01-22-06 12:53 AM
200
Posted by Frederick | Link to this comment | 01-22-06 1:32 AM
I can't believe I didn't think of that.
Posted by ben wolfson | Link to this comment | 01-22-06 1:37 AM
Outthought by a suicidal moron -- you're slipping, ben.
Posted by Frederick | Link to this comment | 01-22-06 2:05 AM
My own kind has turned against me.
Posted by ben wolfson | Link to this comment | 01-22-06 2:09 AM
So how do we feel about workplace prohibitions on bestiality? Stupid and/or discriminatory? Or is it within bounds to effectively ask the bestial to "cover" while on the job?
187 -- Godot Can Wait -- Beatty plays Estragon, trying to convince Vladimir (James Mason) that...
Posted by Jeremy Osner | Link to this comment | 01-22-06 6:20 AM
So you guys get all serious, in a boring, non-bestial way, and I ignore it and I ignore it, but then I finally chip in seriously, and you guys go all frivolous again on me.
Posted by John Emerson | Link to this comment | 01-22-06 6:55 AM
This blog is really an elaborate project designed to drive you INSANE.
Posted by Matt Weiner | Link to this comment | 01-22-06 7:26 AM
SCMT and others doubt the need for that.
Posted by John Emerson | Link to this comment | 01-22-06 8:11 AM
So how do we feel about workplace prohibitions on bestiality? Stupid and/or discriminatory? Or is it within bounds to effectively ask the bestial to "cover" while on the job?
It is probably permissible to forbid employees to fuck sheep while on the job. However, it would be an unconscionable violation of one's personhood to require one to bring a human (rather than, say, a sheep, cow, or goat) to the office holiday party. Such a requirement would constitute involuntary servitude, and would be thus be an actionable violation of one's constitutional rights whether committed by a governmental or private actor. See U.S. Const. amend. XIII; 42 U.S.C. section 1983.
Posted by Frederick | Link to this comment | 01-22-06 8:41 AM
be thus be=thus be
Posted by Frederick | Link to this comment | 01-22-06 8:45 AM
GO STEELERS!
Posted by Cala | Link to this comment | 01-22-06 9:31 AM
210 gets it exactly right.
Posted by Matt Weiner | Link to this comment | 01-22-06 9:48 AM
Haven't caught up on comments yet, but on the cornrows question:
The argument that it's not that big a deal seems to ignore a couple of things. First, like rules that require women to wear makeup, it ignores the way that small things add up. One reason for braiding kinky hair is to cut down on maintenance; you braid it, and then it only requires re-braiding once in a while. So on a given day, okay, fine, you spend X amount of time fixing your hair (applying your makeup)--but over time, that adds up to a lot more work (and expense, arguably) that Joe Average doesn't have to do, or even think about.
Second, and way more important: the "black hair thing" is a SUPER sensitive topic for black folks. Their hair has been regulated, surveilled, treated as a mark of exoticism, treated as a curiosity, treated as a "problem," for-fucking-ever. Virtually every black woman I know has stories about having complete strangers ask to touch her hair, comment on it, tell her it's "so exotic," etc. etc. etc. So passing a workplace regulation against a fairly common black hairstyle is like waving a red flag before a bull. Do a lot of white people know this? No. Does that matter? Yes--but not b/c it's an excuse; rather, b/c it's the *reason* that blacks are so sensitive on the goddamn hair issue.
Finally, I wonder what is included in the definition of "cornrows." Most of the women I know with kinky hair wear it one of two ways: natural, or braids. With kinky hair, braids of any kind require *part* of the braid to run along the scalp, cornrow style. If that's what's being banned, then that surely consitutes a massive imposition on the choices women can make about their hair. Pretty much your only non-braid options are straightening (the problems with which I assume are obvious), the big frizzy natural (which looks great, but tends to draw unwanted comments and attention), or cutting it all off. That's a pretty major requirement, no?
Posted by bitchphd | Link to this comment | 01-22-06 10:32 AM
It is probably permissible to forbid employees to fuck sheep while on the job.
"covering" takes on a whole new meaning if we're talking cows and mares.
We've been talking explicitly about non-discrimination, but I think there's another standard floating in the miasma. The ADA requires 'reasonable accommodation' for the handicap. I think that something like reasonable accommodation is required for religious differences, although I'm not sure. Should we consider whether we want to require reasonable accommodation for racial differences?
When B starts talking about the additional burden which some grooming requirements place on people with naturally tightly curled hair, it sounds like an argument for reasonable accommodation. Does it make the analysis easier if we consider accommodation, or is it just more confusion?
Posted by Michael H Schneider | Link to this comment | 01-22-06 12:48 PM
Hm, I like this "reasonable accomodation" idea. I mean, it could easily be expanded to all sorts of things, e.g., "close talkers" or whatever. Is so-and-so's quirk one that other people in the office are capable of accomodating with reasonable effort? Or is it something that is, in and of itself, just irredeemably disruptive?
Posted by bitchphd | Link to this comment | 01-22-06 2:24 PM
I disagree with the goodness of "reasonable accomodation" regulations; I don't want the courts coming into employment decisions that often. Also, I don't think you should be fired for refusing to change your hair style to suit your employer; I think you should be shot.
Posted by SomeCallMeTim | Link to this comment | 01-22-06 3:15 PM
To follow up on BPhD's comment: a lot of African-Americans--in addition to the whole cultural tension about African-American hair that B outlines well--have brittle hair. I have curly white-girl hair that breaks, takes forever to grow, etc., but from what I've heard, many African-American women have four times the trouble growing their hair. Cornrows are a neat way of protecting their hair from the stresses of the elements and of styling--a way of protecting African-American hair that developed in, surprisingly enough, African-American comunities. And there are cornrow styles that are specific to thug life and others that are much less so.
I don't know what the law should look like, but any employer who regulates against cornrows sucks.
Posted by Jackmormon | Link to this comment | 01-22-06 4:37 PM
Well, that's the point of the article -- covering this stuff under current employment discrimination law, and probably under any expanded version of the law, is going to be either maddening or, more likely, completely unworkable, because there really isn't a way to draw a bright-line distinction between "the employer is reasonably regulating workplace behavior", "the employer is being a control freak, but not in a way that anyone has a right to interfere with" and "the employer is discriminating." This sort of thing can be a huge deal (e.g., the black hair thing), but it almost has to be a societal, rather than a legal problem.
Posted by LizardBreath | Link to this comment | 01-22-06 5:18 PM
... any employer who regulates against cornrows sucks.
I thought that the right to be an ass, like the right to be stupid, was enshrined in our founding documents. It's a necessary, inherent component of liberty. Whether that subsumes a right to suck is still controversial.
After re-reading Yoshino's article, I realized he does have a point. He has a new legal paradigm. That's what he says: While I have high hopes for this new legal paradigm ...
What, you may ask, is this new paradigm? I've been trying to figure it out. There are some clues:
With respect to legal remedies, we must shift away from claims that demand equality for particular groups toward claims that demand liberty for us all.
I was taught that claims were one thing, and remedies another, but here we seem to be mixing 'em. Okay, keep that disbelief suspended.
In an increasingly diverse society, the courts must look to what draws us together as citizens rather than to what drives us apart.
Put aside that first clause. I am not at all convinced that society is increasingly diverse, but it's not vital. I think he threw it in just to confuse me.
He's talking about courts. Not legislatures, not constitutional conventions, but courts. He's talking about judges gazing into the penumbras and traditional whatsits, and pulling out principles. There's certainly always room for interpreting and interpolating principles into the text of statutes and constitutions, but he's going far beyond that.
He's discarding 250 years (or more) of experience that tells us that legitimate laws arise from the consent of the governed, expressed through a constitution or legislature. Yes, I know, we also have a common law tradition. But the common law is supposed to develop in small steps, using principles from prior decision to decide new cases, and slowly deriving new principles from prior decisions.
We have a constitution and statutes declaring certain negative principles: congress shall make no law...; Nor shall any State deprive any person ...; no person shall be held to answer for a capital... . Yeah, there are a few affirmative statements of rights (the accused shall enjoy the right to a speedy trial) but those are comparatively narrow, and could as well be written as negative, prohibition on government action.
Yoshino throws all that into the trash. He congratulates the Supreme Court for two recent decisions resting on the declaration of rights not easily found in the text:
In 2003, the court struck down a Texas statute that prohibited same-sex sodomy. It did not, however, frame the case as one concerning the equality rights of gays. Instead, it cast the case as one concerning the interest we all - straight, gay or otherwise - have in controlling our intimate lives. Similarly, in 2004, the court held that a state could be required by a Congressional statute to make its courthouses wheelchair accessible. Again, the court ruled in favor of the minority group without framing its analysis in group-based equality rhetoric. Rather, it held that all people - disabled or otherwise - have a "right of access to the courts," which had been denied in that instance.
While I like the results in both those cases, and the right of access to the courts has (IIRC) been around a long time, this is very risky territory. We all know the difficulties with the right to privacy. Most of us probably know about substantive due process, and declarations of fundamental liberties such as the right to contract, which didn't turn out well.
New paradigm, indeed. He's concluding that we need a whole new theory of government, and a whole new legal system, while also conceding that "law will play a relatively small part in the new civil rights."
That's one hell of a conclusion to draw from the revelation about covering. Finally, I can't resist quoting the topic sentence of his concluding paragraph, because it echoes so clearly my position in #1, above:
This just brings home to me that the only right I have wanted with any consistency is the freedom to be who I am.
Posted by Michael H Schneider | Link to this comment | 01-22-06 6:19 PM
oops, that was #3 above. Back to remedial counting for me.
Posted by Michael H Schneider | Link to this comment | 01-22-06 9:47 PM
216: in agreement, except for a little quibble: cornrows didn't start in african-american communities; they started in sub-saharan Africa, *centuries* ago. As a way of keeping hair neat, clean, healthy, and beautiful, given all the hair-structure issues that have been pointed out.
there's also a very beautiful way of doing fuzzy african hair that involves creating rows of knobs of hair, instead of braiding; it's a woman's style. i wish that would cross the ocean over to the US too!
Posted by mmf! | Link to this comment | 01-23-06 6:12 AM
Speaking of covering, you can't fight Islamism with gay cowboys.
And lord knows, Unfogged proves it.
Posted by apostropher | Link to this comment | 01-23-06 7:24 AM
I thought that the right to be an ass, like the right to be stupid, was enshrined in our founding documents.
I think it was Trotsky, commenting on the then leader of the American Communist Party who said
"Everyone has a right to be an idiot, but Comrade MacDonald abuses the privilege".
Posted by dsquared | Link to this comment | 01-23-06 7:41 AM
Virtually every black woman I know has stories about having complete strangers ask to touch her hair, comment on it, tell her it's "so exotic," etc. etc. etc.
One of the more embarrassing classroom situations I've ever been in was in a college sociology class, listening to some idiot white kid discover that kinky hair was not a sex-linked characteristic: he had believed that black men had kinky hair, but black women did not. And of course the only black woman in the class (likewise, the only black person) got stuck explaining that, no, if she didn't straighten her hair it would be kinky as well. In retrospect, the professor was distinctly a twerp for leaving her on the spot like that -- he should have explained the facts himself, with a strong overtone of 'what planet do you come from'?
Posted by LizardBreath | Link to this comment | 01-23-06 9:21 AM
black men had kinky hair, but black women did not
James Brown is a woman!
Posted by apostropher | Link to this comment | 01-23-06 9:56 AM
... the professor ... should have explained the facts himself ... .
Was the professor white and male? There's a whole layer of patriarchy and racism implied by white males explaining the "facts" of black identity, rather than allow the black person to self-define. I see your point about not putting an uncomfortable student on the spot, so asking the student 'do you want to answer, or shall I?' might have been best.
Posted by Michael H Schneider | Link to this comment | 01-23-06 10:05 AM
you can't fight Islamism with gay cowboys
That could just be published in The Onion as-is. Insta-Satire!
Posted by Matt F | Link to this comment | 01-23-06 10:10 AM
Hm. In general, maybe, but a simple statement that hair texture is unlinked to sex is neither racist or authoritative -- it's a simple fact of general knowledge that it is surprising that anyone should not know. What the prof did left the woman in the position of 'explaining the mysteries of black-folk', and normalized the man's bizarre ignorance; of course he didn't know, you wouldn't expect anyone who wasn't black to know anything at all about secret mysterious stuff like black hair.
Posted by LizardBreath | Link to this comment | 01-23-06 10:12 AM
Does anyone else find this category of story as unsettling as I do?
Tia, yes! Lately, anyway. I've been obsessed with death lately; the thought of my consciousness not existing anymore is too horrible to bear, and has been keeping me up nights, no lie.
Next up: I attempt suicide, watch the Marx brothers in an old movie house, and end up marrying Diane Weist.
Posted by Joe Drymala | Link to this comment | 01-23-06 11:06 AM
Joe, this
Posted by ogged | Link to this comment | 01-23-06 11:14 AM
I get a page with this message:
Posted by Joe Drymala | Link to this comment | 01-23-06 11:20 AM
Shit, you might already be dead.
Posted by ogged | Link to this comment | 01-23-06 11:22 AM
... a simple fact of general knowledge ...
In my limited experience: simple facts aren't; general knowledge isn't.
I may be attributing too much to Sociology, but I thought it taught that (a) biology doesn't determine meaning; and (b) different people do things differently. In other words, that in a Sociology class it's appropriate to let the subject speak in their own voice about the social meaning of a chosen hair style. In a biology class, I'd agree that the simple fact of biology could be authoritatively declaimed by the professor, and the class should move on.
You describe a college class. Ignorance is expected in that situation. Acknowledging ignorance doesn't normalize it, in the sense of saying "it's okay to be ignorant." Rather, it says "aha! that's why you are here. You are about to learn something."
And I think that in an undergraduate Sociology class, it's appropriate to show how to learn about different people, people of a sort you may never have encountered before. It's appropriate to show that asking the subject if the subject wants to explain can be more respectful, and more informative, than talking about someone in the third person in their presence.
Posted by Michael H Schneider | Link to this comment | 01-23-06 11:25 AM
Unfogged weirdness. It only posted part of my comment, and part of the URL.
It's a poem called "Meditation on Form and Measure" in the book Black Zodiac, by Charles Wright.
Posted by ogged | Link to this comment | 01-23-06 11:26 AM
Yeah, although I don't know that it's dying in particular that freaks me out. I usually try not to think about it, or if I do, try to resolve the question my telling yourself, "Shit girl, better enjoy yourself and get stuff done." I am more freaked out by the concept of continuing in some sense, but without a coherent identity, either because you've lost your memory or people have lost their memory of you, and stop affirming your sense of yourself. I suppose this is just fear of death getting in the back door, probably precipitated by the knowledge that since I have been 26 for three months, my naked body is no longer worthy of John Derbyshire's attention, and no amount of exercise can change that now.
Posted by Tia | Link to this comment | 01-23-06 11:33 AM
Liking poetry is
gay, ogged.Posted by ben wolfson | Link to this comment | 01-23-06 11:34 AM
I didn't say I liked the poem, Ben.
Anyway, times have changed; calling things
gayis totallygay.Posted by ogged | Link to this comment | 01-23-06 11:37 AM
I found it. It reminded me a whole lot of Eliot's "Four Quartets", which I love.
Posted by Joe Drymala | Link to this comment | 01-23-06 11:38 AM
It's appropriate to show that asking the subject if the subject wants to explain can be more respectful, and more informative, than talking about someone in the third person in their presence.
Well, that was kind of my issue -- it transformed one of the students in the class into a object of study: there were 29 white students, who were students whose ignorance was being catered to, and one black woman who was an alien presence suitable for study. Asking her, directly, about her weird tribal hair-related practices might have been a more respectful way to study her than simply opining about her in her present, but she wasn't supposed to be under the microscope in that class -- she was supposed to be looking through the eyepiece with the rest of us.
Posted by LizardBreath | Link to this comment | 01-23-06 11:41 AM
'presence'
Posted by LizardBreath | Link to this comment | 01-23-06 11:42 AM
Another upshot to 26. Neither liable to be drafted by the U.S. military nor pressganged by Derbyshire.
Posted by Armsmasher | Link to this comment | 01-23-06 11:43 AM
234: Tia, I'll appreciate whatever Derbyshire doesn't. I know that's hardly fair compensation, but it's all I have to offer.
Posted by apostropher | Link to this comment | 01-23-06 11:48 AM
Thanks apostropher, but it's one straight shot on the senescence expressway from here on out. Lies, no matter how lovely, can't comfort me. I wouldn't want to inflict the sight of mortifying flesh on you to futile end, especially when you already helped me repopulate the earth, mercifully, for you, while we were without electric lights.
Posted by Tia | Link to this comment | 01-23-06 11:56 AM
... she was supposed to be looking through the eyepiece with the rest of us.
So, for the purposes of the class she was to be defined as normatively white? Uhm, isn't that really normalizing the 'sociologists are white folks who look at strange tribal groups' thing? Doesn't that ignore the whole idea that what is seen depends one who is looking, and what differences they bring to the observation process?
Posted by Michael H Schneider | Link to this comment | 01-23-06 12:06 PM
So, for the purposes of the class she was to be defined as normatively white?
No, she was to be defined as a student rather than an object of study. That doesn't make her 'normatively white' unless whiteness is an inherent characteristic of students.
Uhm, isn't that really normalizing the 'sociologists are white folks who look at strange tribal groups' thing? Doesn't that ignore the whole idea that what is seen depends one who is looking, and what differences they bring to the observation process?
This is a point, but the class, an Intro to Sociology core class rather than anything higher level, was taught from the perspective you describe -- not analysis of our own culture, but analysis of other, alien cultures. While that may have made it a bad class (it was a bad class) in the context of that class defining one of the students as an object of study really did have the effect of, at least for the length of the interaction, defining her as no longer one of 'us', the regular people in the class who learn about 'others'.
Posted by LizardBreath | Link to this comment | 01-23-06 12:15 PM
[the] Intro to Sociology core class ...was taught from the perspective you describe -- not analysis of our own culture, but analysis of other, alien cultures.
Ah. Thank you. That explains a lot. Not only bad pedagogy, but bad social science. When the class is premised on the us-white-folks/them-weird-natives you're bound to get uncomfortable moments.
One thing important to my education was learning of a bit of ethnography done by an anthropologist and some grad students. They did a classic study of kinship in the traditional anthropological way. They went and asked the natives the familiar questions: list all your relative; how do you define a relative? what do you call the person who has sex with your mother? The study was done among middle (or lower-middle) class whites on the south side of Chicago, in the early 1960s.
That you took a Sociology class that still taught from the old colonial model was unfortunate.
Posted by Michael H Schneider | Link to this comment | 01-23-06 12:31 PM
LB, that sounds like an awful class. I'm a sociology grad student, and while I haven't taught my own class yet, my general sense is that most instructors try to get students to interrogate their own lives and assumptions. It's not about studying "others," it's about studying "ourselves."
Also, I read the Yoshino article last weekend when it came out in the NYT and was aghast at his "discovering" of Goffman. I'm glad that folks here not in sociology also found that bizarre. Goffman is certainly up there when it comes to famous American sociologists. It's like somebody from a tangentially related discipline discovering that Rawls had something to say about justice.
Posted by singular girl | Link to this comment | 01-23-06 12:38 PM
I'm probably being too hard on the prof, as I'm sure he thought of himself as trying to "get students to interrogate their own lives and assumptions". He just struck me as incredibly unsuccessful in that regard.
Posted by LizardBreath | Link to this comment | 01-23-06 12:44 PM
My roommate's girlfriend, who is black, attended private schools and colleges where she was often the only black student, and tired quickly of 'speaking for the race' by well-meaning teachers. ('What's your perspective on the L.A. riots?')
Posted by Anonymous | Link to this comment | 01-23-06 12:54 PM
Goffman is certainly up there when it comes to famous American sociologists.
But is covering one of his better known concepts? A lot of people have read Presentation of Self, Stigma not as much.
I still found the way he brought up Goffman a bit weird, but he has some point in that it's not a widely discussed phenomenon.
Posted by ac | Link to this comment | 01-23-06 12:54 PM
But Michael is right that "analysis of other, alien cultures" isn't really how sociology is supposed to be done or taught.
In the professor's defense, it's difficult to teach about controversial topics like race, and nobody really tells you what a good way to go about it might be (at least in my experience). The conventional wisdom is that you'll figure it out as you go along, but that means you run the risk of doing something asinine and alienating students. And maybe you never do figure out a good way to teach controversial stuff.
Posted by singular girl | Link to this comment | 01-23-06 1:01 PM
tired quickly of 'speaking for the race'
Which reminds me: shouldn't Tim Russert know better?
Posted by apostropher | Link to this comment | 01-23-06 1:01 PM
249: You may be right. Perhaps I just think it's common knowledge because it's common knowledge among sociologists.
Posted by singular girl | Link to this comment | 01-23-06 1:13 PM
Data-point: I'm reasonably generally well read, but never did any work in sociology past that one class. I'm almost completely unfamiliar with Goffman -- haven't read anything, and the name rings the very, very faintest of bells. This may be a blind spot on my part, but I usually feel pretty safe guessing that if I haven't heard of something, there are plenty of reasonably well educated people who haven't.
Posted by LizardBreath |