New strategies for dealing with an age-old problem
In recent decades, legislative bodies throughout North America and Europe have enacted sweeping laws to protect racial and ethnic minorities, women, the disabled and other groups who are victimized by discrimination. Perhaps not surprisingly, these efforts have encountered resistance—oftentimes successful—leaving anti-discrimination scholars and activists to ponder new strategies for dealing with an age-old problem.
On May 6 and 7, a group of these scholars from the U.S., Canada and Europe participated in a Harvard Law School workshop that analyzed the recent evolution of anti-discrimination law on both continents.
The organizer of the event, HLS Professor Grainne de Burca, said that she and a European colleague, Ruth Rubio Marin, had begun a project looking at how European anti-discrimination law was changing under European Union rules. “I became aware that there were many interesting debates with resonances on both sides of the Atlantic,” she said. “We thought this workshop would provide an opportunity for us to learn from each other, given that similar problems are being addressed in very different contexts but with many common questions.”
A recurring theme throughout the discussions was a sense of disillusionment among U.S.-based participants with the role that legal institutions have come to play in tackling inequity and discrimination.
Elizabeth Bartholet ’65, Morris Wasserstein Public Interest Professor of Law at HLS, spoke of the broad advent of anti-discrimination law in the U.S., in the ’60s and ’70s, as “a very powerful time in terms of how courts and law could function to create the synthesis of judicial and proactive policy.” She said that a theory of “disparate impact” quickly took root—meaning that employers could be held liable if their practices had an adverse impact on various minority groups in the absence of the employer showing they were required by business necessity.
Large groups of poor and minority workers were able to get representation in court through class actions, she said. Today, however, “the courts have essentially destroyed impact theory,” she said, and have also destroyed the class action device.
European participants described the state of anti-discrimination law there somewhat more optimistically—perhaps because it is considerably younger and has not yet generated the kind of social and political backlash seen in the U.S.
Bruno de Witte, professor of EU law at Maastricht University in The Netherlands, pointed out that prior to the EU’s Racial Equality Directive of 2000, only a few European nations had any kind of equality institutions. The directive mandated their creation by EU member states and today more than 30 European countries have them, he said.
In terms of effectiveness, however, “we don’t yet know whether equality institutions have actually realized effective legal change,” he said. “Thus far we have mainly anecdotal evidence.”
De Witte and others singled out the French equality institution HALDE as effective, but the performance of other European equality institutions has been mixed, participants said.
“We’re seeing how vulnerable they are to political winds,” said Mark Bell, a professor at the University of Leicester School of Law in the U.K.
Christopher McCrudden, professor of law at the University of Oxford, said of the British Equality and Human Rights Commission: “They are doing some litigation, but they have no strategy. They’re reacting mostly to public pressure and what’s going to make them look good in the papers the next day.”
David B. Oppenheimer ’78, a clinical professor at the University of California Berkeley School of Law, said the same kind of meekness has struck American anti-discrimination institutions. He said, “There were long periods of time when the [Equal Employment Opportunity Commission] only submitted briefs in the U.S. Supreme Court in which they supported the employer.”
“These U.S. agencies are heavily politicized agencies because this is a heavily politicized issue,” he said. “It’s hard for a regulatory agency to avoid political capture unless it’s doing something that everyone regards as very boring—and this isn’t boring.”
This kind of political reality, which exists to different degrees on both continents, prompted participants to examine alternative anti-discrimination strategies that rely less on legal institutions. These include private initiatives within corporations and broader strategies launched by public and private institutions including universities.
Yale Law School Professor Reva Siegel said the legal challenge in the fight against discrimination will be to identify new methods and new tools, moving beyond courts. “There’s a deep way in which the U.S. story is about unlearning a certain mystification of the role of courts in the redress of discrimination,” she said. “It’s not about abandoning courts, but about launching a much deeper inquiry into the multiple forms of law used in the service of social change.”