More than half of Americans whose jobs can be done remotely are working from home at least part of the time. When the pandemic hit, the share of remote-capable workers in the office full-time dropped from 60% to about 20%, and that number has never rebounded. Why don’t Americans want to return to the office? Gail Heriot argues that it’s partly because the office has become an unpleasant place to be due to legal changes that have forced employers to police the minutest details of workplace conduct.
“In the post-COVID world, many employers are dismayed at the difficulty they are having persuading their employees to come back to the office,” she writes. “Perhaps it would have been easier in the more informal and collegial atmosphere of the past.”
Heriot is a retired law professor at the University of San Diego and a former member of the U.S. Commission on Civil Rights. Her specialty is civil rights law, specifically how it has affected the modern workplace. Over the past 50 years, laws against discrimination on the basis of race and sex have perversely led to a world where innocuous phrases such as “cake-walk,” “long time no see,” “master bedroom,” and “peanut gallery” have been the subject of litigation.
Why We Walk on Eggshells: How Our Civil Rights Laws Stifle Our Civic Discourse; By Gail Heriot; Encounter Books; 331 pp.; $35.99
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Why We Walk on Eggshells: How Our Civil Rights Laws Stifle Our Civic Discourse; By Gail Heriot; Encounter Books; 331 pp.; $35.99
The keystone of American civil rights law is the Civil Rights Act of 1964, and many authors, including Christopher Caldwell in The Age of Entitlement (2020), have focused on how the law fundamentally changed the constitutional landscape. Heriot focuses on a different law, the Civil Rights Act of 1991. This was passed under a Republican president, George H.W. Bush, but it was no conservative law. It supercharged workplace civil rights litigation because of one simple change: It allowed employees to sue their employers for damages.
Previously, winning an anti-discrimination lawsuit could force an employer to change its conduct or give the litigant his or her job back, but it didn’t really have any money attached to it because you could only sue for back pay. After 1991, litigants could win five or even six figures in compensatory and punitive damages, which meant it made sense for anyone with a halfway-credible case to roll the dice in court or seek a settlement from their employer.
“When incentives change, so eventually does behavior,” Heriot writes. “The passage of the ’91 Act changed the incentives for employers.”
The irony is that the bill almost didn’t pass. Negotiations in Congress were bogged down as Republicans tried to remove some of the bill’s more aggressive provisions.
“But then word came down from the White House,” Heriot writes. “The president wanted to sign a bill, and he wanted to sign it soon.”
The reason was Anita Hill, whose accusations against Supreme Court nominee Clarence Thomas had created a political problem for Bush. He hoped to solve that problem by signing a law that targeted workplace harassment. Congress passed the bill less than a month after Hill took the stand, and hasty negotiations produced an imperfect law.
Heriot’s subtitle claims that civil rights laws “stifle our civic discourse.” This claim may sound surprising to many Americans, who assume that civil rights law only bans speech like slurs and epithets, which have no place in the workplace anyway. But judges have interpreted these laws as prohibiting any speech that creates a “hostile environment,” which means any speech that makes someone uncomfortable. This has created problems not only for employers, who must impose strict speech codes on their employees whether they want to or not, but also for our politics. It is difficult to debate policies like affirmative action when frank talk on racially sensitive topics can fall within the legal definition of prohibited speech.
In 1991, Timothy Maguire was a third-year law student working part-time in the Georgetown University Law Center admissions office when he noticed something shocking. The disparity in test scores and grades between black and white admitted students was much bigger than he expected. Based on his back-of-the-envelope calculations, the average accepted black student had an LSAT score of 36 (in the top 30% nationwide) and a GPA of 3.2. The average white admitted student had an LSAT of 43 (in the top 5%) and a GPA of 3.7, and not a single one of the 100 white admittees he looked at had an LSAT score below 39.
Maguire published an op-ed in the Georgetown Law student newspaper arguing that the school had lowered its standards in the interests of diversity and was being dishonest in claiming publicly that its affirmative action policy was just a small nudge in borderline cases. The reaction was explosive. The school held a town hall meeting where 600 students debated the article, with the vast majority hostile.
“I think the article is assaultive,” one second-year law student said. “People were injured.”
The law school launched disciplinary proceedings against Maguire, whose lawyers negotiated a settlement with the administration, allowing him to graduate.
This kind of ideological persecution is not what Americans thought they were signing up for when they passed civil rights laws, and several attempts have been made to rein in these wild interpretations and restore the colorblind ideal. Heriot played a starring role in one such attempt. Proposition 209 was a 1996 California ballot initiative to amend the state constitution to prohibit race-conscious policies, including those in university admissions. Heriot was co-chair of the “Yes on 209” campaign.
It was a real David-and-Goliath fight, Heriot recalls. She was the campaign’s second-largest donor with a gift of $49,999. Another donor, Students for Fair Admission, Inc., gave $50,000, and most of the rest of their donations were between $50 and $200. By contrast, the campaign to repeal Proposition 209 in 2020 raised more than $25 million. Despite being the underdog, the Yes campaign won with 55%of the vote in 1996.
An earth-shaking development occurred in civil rights law in 2023, just as Heriot was beginning to write this book: The Supreme Court in Students for Fair Admissions v. Harvard overturned decades of precedent and ruled race-based college admissions policies illegal. Unfortunately, a change in the law does not automatically lead to changes in policy — as Heriot herself learned with Prop 209, which was quickly rendered a dead letter by university administrators who used “holistic admissions” to recreate affirmative action by another name.
THE WASP WHO LANDED ON THE FUNNY PAGES
“Initially, during the Biden administration, compliance with SFFA seems to have been hit or miss,” Heriot writes. In other words, many schools were maintaining their old affirmative action policies and daring the federal government to do something about it. The Trump administration has taken them up on that dare. Its lawyers have been actively investigating schools suspected of being out of compliance with the law, which can result in penalties, including the loss of federal funding.
Republican lawyers have also used the SFFA precedent to go after minority hiring targets at corporations such as Nike and Penguin Random House, as well as “diversity, equity, and inclusion” training that disparages white people. A case brought by a Seattle city employee who was told during DEI training that racism is in “white people’s DNA” is ongoing. It took decades for civil rights case law to reach its current state, and it will take decades of pushback to undo. But working from home is no protection: Under current law, employees have gotten in trouble for using the wrong emoji.
Helen Andrews is the author of Boomers: The Men and Women Who Promised Freedom and Delivered Disaster.
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[ H/T Washington Examiner ]
