Yet Another Limit of Law

Via Workplace Prof, an interesting bit on "diversity training" from Dean Dad, an administrator at a community college:

As the post on diversity training explains well, the point of diversity training isn't to sensitize employees to diversity. Anybody with any teaching experience at all can tell you that herding a hundred people into an auditorium for mandatory consciousness-raising for ninety minutes won't work. It's terrible pedagogy, and virtually designed to fail; it's also insulting. If the point of the workshops were to change attitudes and/or behavior, those would be valid objections. But that's not the point of the workshops. The point of the workshops is to be able to answer a legal complaint alleging bias with “we take these issues seriously. See, we run mandatory workshops on them for all employees!” It's about defusing potential liability.

(Admittedly, this implies a shockingly low opinion of the judicial system. But that's another post altogether.)

If deposed, a manager can say “we provide x number of hours of training.” As with credit hours, what gets measured is seat time. Changed behavior and/or attitudes are devilishly hard to quantify, but seat time is remarkably easy. If somebody alleges, say, racism, and can prove some kind of different treatment at something (which is sort of like proving that the sun rose in the East), the burden shifts to the college to show that it isn't racist. (The presumption of innocence is remarkably weak in this area of the law.) You can't prove a negative, so the college has to use proxy measures. (Quick – prove you're not thinking about a polar bear!) Seat time in diversity seminars counts as a proxy measure. If the discrimination laws were more intelligently written and enforced – say, dispense with the requirement to prove a negative -- we could dispense with these Potemkin rituals. But they aren't, so we can't. If we did, we'd lose every case, whether it had any merit or not.

This showcases the limits of making law our only interlocutor with discrimination. The sort of things we need to prove to the satisfaction of "law" are often not provable entities. How do you know what's in someone's mind? When is harassment "pervasive" enough to make a difference. What is harassment, and what is innocent banter? When is a look just a look, and when is it something more? When is a bad assignment given because someone has to do it, and when because the employee is incompetent, and when because the employer assumes the employee is incompetent because he's Black? These are not really questions the law is well-equipped to answer. And so, as the Dean says, we create a variety of proxies to measure the discriminatory climate, ones which we really know in our heart of hearts don't tell us all that much, and graft them onto a legal regime that is the only socially sanctioned response to discrimination.

This last part, I think, is the crux of the problem. In American society, there is a pervasive belief I've noticed on issues such as this, where if a particular individual claim of discrimination hasn't been ratified in a court of law, it hasn't happened. Because we don't have a mechanism for talking about discrimination outside of particular legal parameters, two serious negative impacts occur. The first is that the many legitimate discrimination claims that, for one reason or another, fall through the legal cracks, also fall through the social cracks. In a prior post I noted a variety of reasons why someone who had been the victim of discrimination might not sue at all -- legitimate reasons (though unfortunate ones), but ones that don't obviate the fact that discrimination occurred. These people should not be abandoned, but whatever material or psychic harms we associate with discrimination are being allowed to rage unchecked amongst this entire class. Second, on the legal side, the fact that law is only arena for these claims to be hashed out makes the battles over the rules of the game particular brutal. Both sides know that this is it -- if they lose here, they lose it all. This is unnecessarily polarizing and is not conducive to building the sort of long-term, constructive policies that might actually make a real dent in discrimination at the source, rather than just managing its effects. Were we to develop alternative arenas beyond the law to work on and air discrimination issues, a lot of the pressure on law to be all things for all people would diminish, and the temperature of the political debate could fall with it.