VOLOKH at mail.law.ucla.edu
Fri Aug 11 16:06:00 PDT 2000
Proposed interpretations that ban only "invidious" discrimination
have an undeniable appeal -- after all, if it's invidious, it must be bad,
and if it's not invidious, it sounds like it's reasonable or at least not
that bad, no? Unfortunately, in my experience they run into serious trouble
when one tries to pin down exactly what they mean.
Let's start with the dictionary (in my case, my spanking new New
Shorter Oxford), which defines invidious as "unjust [or] unfairly
discriminating" or "giving or likely to give offence or arouse ill feeling."
The former isn't terribly helpful, since it just returns us to what sorts of
discrimination are "unjust" or "unfair." The latter can either be taken on
its face as a purely predictive judgment, in which case all we can do is
take a poll, and outlaw race preferences if enough people are offended or
feel ill about them; or we have to turn it to "giving or likely to give
reasonable offence or arouse ill feeling among reasonable people," in which
case we have the same problem as with "unjust [or] unfairly discriminating."
A frequent alternate definition of invidious, one that's tied to its
root ("invidia" = "ill will"), is "motivated by ill will or malice." That
might be a bit clearer -- but if we take it seriously, then the proposed ban
on "invidious discrimination" becomes pretty narrow. Discrimination based
on accurate, sensible generalizations about people ("I'd rather hire group X
rather than group Y because they're generally better educated / better at
taking orders / more knowledgeable about this field") is hard to see as
motivated by "ill will or malice." I don't for a moment deny that it's
discrimination -- but it's not "invidious" under the ill-will/malice
definition. Likewise, discrimination based on customer preference or more
broadly likely public reaction, as for instance in Palmore v. Sidoti, is
hard to see as motivated by ill will or malice on the discriminator's part.
The discriminator may be genuinely regretful about the reality that he's
quite reasonably and not unkindly taking into account.
And of course as to sex discrimination (which presumably is no more
frowned on by the E/P Cl than is race discrimination), the "ill will or
malice" test would strike down very few sex classifications. Most sex
classifications in the law, while in my view often misguided, are hardly a
result of ill will or malice. Naturally, one could theorize that the
supporters of those discriminations that one dislikes are evil and were in
fact motivated by ill will or malice (concluding, e.g., that legislation
excluding women from being bartenders was really part of a broad
misogynistic campaign by people who felt threatened by women and wanted to
keep them down), and that supporters of those discriminations that one likes
are good and were not motivated by ill will or malice (concluding, e.g.,
that even if one sets the threshold for ill will or malice very low, in
order to block virtually all discriminations in favor of whites or male so
long as there's any hint of possible hostility in their justification,
preferences for nonwhites and women never flow even in part from any
hostility or ill will towards white males). But if one does that, then
again we're in an environment where "invidious" simply means "I don't like
A similar issue, of course, arises with regard to Title VII. (I
realize that Title VII need not be interpreted identically to the Equal
Protection Clause, but it still provides a useful analogy.) It's hard for
me to see the program struck down in L.A. DWP v. Manhart, 435 U.S. 7092
(1978), in which women had to contribute more to their pension plans because
women live longer than men, as "invidious discrimination." It's likewise
hard for me to see an Armenian prefering Armenians for his employees as
"invidious." Once the law bans this, it has to be because discrimination is
defined as something more than "invidious discrimination" or "discrimination
motivated by ill-will or malice" or even "discrimination giving or likely to
give offence or arouse ill feeling." Rather, the premise would be that, in
Justice Stevens's words, "the simple test [for discrimination is] whether
the evidence shows 'treatment of a person in a manner which but for that
person's sex [or race or whatever] would be different.'" Id. at 711.
Likewise, I think, for the Equal Protection Clause, unless we're willing to
cut down the Clause's protections quite drastically.
Leslie Goldstein writes:
> I , as it happens , favor affirmative action for disadvantaged
> minorities on policy grounds, and Eugene opposes them, but Eugene always
> refers to it as "race discrimination against" one or another group. I
> believe the 2 are distinguishable not only by benevolent motive vs. bad
> motive but also by practical impact--singling out a small group for
> mistreatment is different from singling them out for help with
> accidental slightly harmful consequences to the large unhelped group.
> This said, I wish to raise a question whther this general discussion is
> really still a constitutional law discussion?
> What is the evidence that the equal proteciton clause is best understood
> as a ban specifically on RACIAL discrimination, as distinguished form
> being a ban on INVIDIOUS racial discrimination or on some other
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