Rethinking Rights After the Second Reconstruction

The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protections from an oppressive state or oppressive powerful private organizations is misleading and distracts attention from the institutional reforms necessary to achieve real social justice. In fact, the very concept of discrimination is vague and contested - the conflict in contemporary civil rights disputes is not simply over the factual question of whether or not discrimination has occurred, but also over the essentially normative question of what should count as discrimination. The concept of discrimination itself has become a placeholder for ideological struggles over how to balance individual entitlements to fair treatment on the one hand against employer decision-making prerogatives and individual liberties of expression on the other. We should abandon unresolvable conceptual disputes over "discrimination" in favor of a focus on the extent of the employer's affirmative duty to avoid decisions and policies that needlessly injure members of underrepresented or stigmatized groups.