Amy Traub

New Civil Rights Vision

In his fascinating and provocative essay in Sunday's New York Times Magazine, Yale law professor Kenji Yoshino laid out his vision for a new, more universal civil rights paradigm.

In a nutshell, Yoshino argues that while civil rights law has traditionally protected people discriminated against because of characteristics they cannot change (race, gender, age, disability status) a more insidious type of discrimination impacts people who simply refuse to "assimilate to dominant norms." In other words "African-Americans cannot be fired for their skin color, but they could be fired for wearing cornrows." This, Yoshino points out, reveals a judicial bias in favor of assimilation.

And what's wrong with that? After all, a person makes the choice to wear their hair a certain way. And that's exactly the point. Referencing sociologist Erving Goffman's concept of "covering" to describe the practice of keeping one's socially stimatized characteristics (like being disabled or female) from looming large, Yoshino argues that:

"When dominant groups ask subordinated groups to cover, they are asking them to be small in the world, to forgo prerogatives that the dominant group has and therefore forgo equality. If the courts make critical goods like employment dependent on covering, they are legitimating second-class citizenship for the subordinated group. In doing so, they are failing to vindicate the promise of civil rights."

More concretely, if traditionally "white" hairstyles are permitted in a workplace, but traditionally "black" hairstyles are not, then whites have an opportunity to express their identity that blacks lack. But why should we assume that white employees don't also want to wear cornrows? We shouldn't, Yoshino argues, and therein lies the universality of his new paradigm: in questioning demands for "covering" or forcing changes in behavior to fit in with the dominant norm, we defend everyone's rights in a pluralistic society, not just traditional "civil rights groups."

There are many cases where employers or other private individuals are perfectly justified in asking for conformity to dominant norms, of course--in my opinion, restaurants that demand "no shirt, no shoes: no service" are not being unreasonable in discriminating against unshod patrons. So it becomes problematic to ask the Courts to draw the line between reasonable and unreasonable covering demands. To his credit, Yoshino recognizes this. He doesn't claim to have it all figured out. But he argues that the process begins with us--outside the Courts and the realm of law--publicly questioning demands that we cover for our stigmatized identities. These conversations may bring us closer to a more universal realization of civil rights.

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Posted at 9:36 AM, Jan 17, 2006 in Civil Rights | Progressive Agenda
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