NORMAL IS NOT NORMAL

Very interesting and provocative article in the NYTimes Magazine yesterday. The author, a law professor at Yale named Kenji Yoshino, states that the predominant civil rights issue of the present is a phenomenon known as “covering,” wherein people modify their behavior to match the standard of a dominant culture. For example, an openly gay man nevertheless attempting to suppress any gestures or turns of phrase that identify him as gay. The man feels perfectly comfortable being gay, but not acting in a way that identifies him as gay. Rights of identity remain protected, but rights of behavior do not.

Another example, from the article:

Renee Rogers, an African-American employee at American Airlines, wore cornrows to work. American had a grooming policy that prevented employees from wearing an all-braided hairstyle. When American sought to enforce this policy against Rogers, she filed suit, alleging race discrimination. In 1981, a federal district court rejected her argument. It first observed that cornrows were not distinctively associated with African-Americans, noting that Rogers had only adopted the hairstyle after it “had been popularized by a white actress in the film ’10.’ ” As if recognizing the unpersuasiveness of what we might call the Bo Derek defense, the court further alleged that because hairstyle, unlike skin color, was a mutable characteristic, discrimination on the basis of grooming was not discrimination on the basis of race. Renee Rogers lost her case.

This example got to me, mostly because I agreed with the court ruling. It’s sad that the airline should feel uncomfortable employing people who overtly identify themselves with a particular culture other than 1950s sitcom culture, but the case certainly isn’t racial discrimination since a person of any race can have cornrows. It is, however, ethnic discrimination because cornrows are closely associated with African American culture. This doesn’t strike me as some injustice on the part of the government, because the problem doesn’t seem to fall under the purview of law. How do you prove that the airline holds prejudices against African American culture (conscious or otherwise) when that airline has no problems hiring black people (race) who choose to “cover” their African American behavioral traits (ethnicity)?

To me, the main problem is not that we have bad laws, but that law itself isn’t up to the task. Law can limit action, but not motive. Yoshino, a lawyer, addresses this inadequacy in law:

Law is also an incomplete solution to coerced assimilation because it has yet to recognize the myriad groups that are subjected to covering demands even though these groups cannot be defined by traditional classifications like race, sex, orientation, religion and disability. Whenever I speak about covering, I receive new instances of identities that can be covered. The law may someday move to protect some of these identities. But it will never protect them all.

Unfortunately, his alternative is dialogue. I think conversation is great and all, but I’ve never known it to change minds. It just forces you to find new justifications for your prejudices, and when you run out, you resort to belief, which ends all conversations. I will say, however, that this article did force me to think. At first it seemed like hyper-liberal claptrap. Legal protections of hairsyles just sounds over the top. But he does bring up some important points which actually made me think after raising my ire.

My favorite passage:

Civil rights must rise into a new, more inclusive register. That ascent makes use of the recognition that the mainstream is a myth. With respect to any particular identity, the word “mainstream” makes sense, as in the statement that straights are more mainstream than gays. Used generically, however, the word loses meaning. Because human beings hold many identities, the mainstream is a shifting coalition, and none of us are entirely within it. It is not normal to be completely normal.

This does not mean discrimination against racial minorities is the same as discrimination against poets. American civil rights law has correctly directed its concern toward certain groups and not others. But the aspiration of civil rights – the aspiration that we be free to develop our human capacities without the impediment of witless conformity – is an aspiration that extends beyond traditional civil rights groups.

Anyway, way out of my depth here. I highly recommend the article, though, and would love to hear what people think about it. I tried talking about it at work today but I did such an awful job describing the thesis that we just ended up talking about Hooters (of course, maybe that’s also on-topic and I just don’t realize it…).