Woke Institutions Is Just Civil Rights Law

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People have generally misunderstood wokeness as a purely cultural phenomenon. It does have a cultural component, of course, but it is important to also understand wokeness as something that has been law in the United States for the last half century.

The triumph of this ideology over the last 10 years in public discourse is simply culture catching up to law. To reverse what has happened, one needs to know a bit of the history, and how every major institution in the country came to act and think in the exact same way.

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Before proceeding, it is important to clarify what wokeness actually is. I’d argue it has 3 components:

1) A belief that any disparities in outcomes favoring whites over non-whites or men over women are caused by discrimination (Sometimes wokeness cares about other disparities too, like fat/nonfat, but those are given less attention. I’m putting aside LGBT issues, which seem to be at an earlier stage of wokeness in which the left is still mostly fighting battles regarding explicit differences in treatment rather than disparate outcomes, although the latter does get attention sometimes.)

2) The speech of those who would argue against 1 needs to be restricted in the interest of overcoming such disparities, and the safety and emotional well-being of the victimized group in question.

3) Bureaucracies are needed that reflect the beliefs in 1 and 2, working to overcome disparities and managing speech and social relations.

Each of these things can be traced to law. The Civil Rights Act of 1964 banned discrimination based on race and gender. While most at the time thought this would simply remove explicit discrimination, and many of the proponents of the bill made that promise, courts and regulators expanded the concept of “non-discrimination” to mean almost anything that advantages one group over another. An important watershed was the decision in Griggs v. Duke Power Co. (1971), in which the Supreme Court ruled that intelligence tests, because they were not shown to be directly related to job performance, could not be used in hiring since blacks scored lower on them, and it did not matter whether there was any intent to discriminate. People act as if “standardized tests are racist if they show disparities” is some kind of new idea, but it’s basically been the law in the United States for 50 years, albeit inconsistently enforced.

Standardized tests aren’t the only target of the doctrine of disparate impact. In 2019 (under Trump), the Equal Employment Opportunity Commission (EEOC) settled a suit brought against Dollar General for $6 million for doing criminal background checks that disproportionately prevented blacks from being hired. The Obama administration went after schools for disciplining black and white students at different rates, with predictably disastrous results. Police departments, fire departments, and other institutions use “gender normed” tests to stop the EEOC and private applicants from suing them for gender discrimination. {snip}

As the government invented new standards for what counts as “discrimination,” it was forcing more aggressive action on the part of the private sector. Executive Order 11246, signed by President Johnson, required all government contractors and subcontractors who did over $10,000 in government business to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” The category of “sex” was added in 1967. In 1969, Richard Nixon signed EO 11478, which forced affirmative action onto the federal government itself.

Across the federal government and among contractors, affirmative action assumed that “but for discrimination, statistical parity among racial and ethnic groups would be the norm.”

Government interpretation of the Civil Rights Act also invented the concept of the “hostile work environment.” UCLA law professor Eugene Volokh has written about how this has been used to restrict free speech. Writing in 1997, he pointed out that

The scope of harassment law is thus molded by three facts:

1. On its face, harassment law draws no distinction among slurs, pornography, political, religious, or social commentary, jokes, art, and other forms of speech. All can be punished, so long as they are “severe or pervasive” enough to create a “hostile environment.”

2. The vagueness of the terms “severe” and “pervasive” — and the fact that the law is implemented by employers, who have an incentive to oversuppress — means that the law may practically restrict any speech that an employer concludes might be found by a fact-finder to be “severe or pervasive” enough.

3. Finally, because an employer is liable for the aggregate of all its employees’ speech, wise employers will bar any sort of statement that might, if repeated by enough people, be “severe or pervasive” enough to create a hostile environment.

Putting all this together, harassment law potentially burdens any workplace speech that’s offensive to at least one person in the workplace based on [protected characteristics] … even when the speech is political and even when it’s not severe or pervasive enough to itself be actionable.

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The rise of HR departments can be directly traced to the federal government’s race and gender policies, which involve direct control of the federal bureaucracy, the “carrot” of government contracts, and the “sticks” of EEOC enforcement and lawsuit threats.

As Harvard sociologist Frank Dobbin wrote in Inventing Equal Opportunity, it was civil rights law that revolutionized the American workplace. Corporations started to hire full time staff in order to keep track of government mandates, which were vague and could change at any moment. There was a sense of “keeping up with the Joneses,” in which every company and institution had to be more anti-racist and anti-sexist than the next one, leading to more and more absurd diversity trainings and other programs.

To decide whether an institution had discriminated against a protected group, courts and regulators would often use a “best practices” approach, meaning that if your competitors adopted the latest fad coming out of academia or the HR world, you felt the need to do the same. {snip}

In their paper “The Strength of a Weak State: The Rights Revolution and the Rise of Human Resources Management Divisions,” Dobbin and Jack Sutton discuss the effects of 1960s and 1970s regulations on business practices in not only race policy, but environmental policy and retirement benefits.

The continuing ambiguity of compliance standards led management writers to advocate permanent antidiscrimination offices to track legal shifts. Because the courts were so fickle, Marino (1980, p. 25) advised executives to adopt the “Good-Faith-Effort Strategy,” the heart of which was a special office designed to signal that the employer was making every effort to figure out how to comply. In a Harvard Business Review article, Antonia Chayes (1974, p. 81) noted that “vigorous enforcement” had brought “serious top management attention to antidiscrimination legislation….Now the penalties imposed under employment discrimination laws are seen as posing a severe financial threat.” She advised executives to set up EEO and AA programs that could prevent lawsuits. Meanwhile, compensation of upper managers was being tied to affirmative action performance, and this led them to support dedicated antidiscrimination departments.

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While fewer than 30% of organizations had an HR office in 1955, by 1985 that number had grown to 70%. Although no organization in the study had an Equal Employment or Affirmative Action Office/r in 1967, 40% did in 1985. Later, the terminology shifted away from “affirmative action” to “diversity and inclusion,” but the ideas are largely the same.

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Dobbin and Sutton argue that this is a general feature of American law, where the state is selective in enforcement and gives vague guidance that is subject to interpretation, like improving “safety” or fighting “discrimination.” They compare the US to France, where the government is more inclined to just issue direct mandates to businesses, who spend a lot less time and effort on private sector bureaucracy to keep up with how regulators and courts are thinking. The creation of bureaucracy means that it eventually gains its own power base and becomes able to advocate for its own interests. Ironically, if the US had just mandated gender and racial quotas, compliance would’ve been simpler and there would’ve been no need for permanent bureaucracies within each organization with an open-ended mission to stamp out all forms of “discrimination.”

This may explain something else I’ve always wondered about. The US seems to elect some of the most conservative politicians in the Western world, but has perhaps the wokest institutions. Civil rights law makes all major institutions subject to the will of left-wing bureaucrats, activists, and judges at the expense of normal citizens.

Thus, we see that every one of the main pillars of wokeness can be traced to new standards created by regulators and courts, mostly in the 1960s and 1970s but updated over time.

1) The idea that disparities mean discrimination is simply disparate impact.

2) Speech restriction is a hostile work environment.

3) The HR bureaucracy was created to enforce (1) and (2), in a world of vague and consistently shifting government standards to root out discrimination.

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The “Great Awokening” has been traced to the early 2010s. Since there was no major law passed at the time that coincided with the shift, people have tended to see wokeness as purely cultural. Yet by the time of the Great Awokening, the federal government had been enforcing an extreme form of anti-discrimination law for two generations. Young people have never lived in a world in which every major institution that they interacted with was not assigning them oppressor or victim status and making decisions on that basis.

If you doubt government can have that much of an effect on culture, consider how we classify people by race. Take the category of “Asian American Pacific Islander.” I don’t think anyone seriously believes that such a thing would exist without federal government race classifications. Yet culturally, it took a while for the concept to take off. Here’s Google Books tracking of the use of the term over time.

Hugh Davis Graham’s book Collision Course discusses how the government came up with its racial classification system. “AAPI” was created in 1977 by the Small Business Administration. Up until 1972, no book in the English language had ever used the term “Asian American Pacific Islander.” There was a slight uptick around the late 1970s, before falling again, with the concept really starting to take off around 1989. We thus see government adopting a term that was practically non-existent, and a slight delay before it comes to have cultural relevance.

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In the book Making Hispanics: How Activists, Bureaucrats, and Media Constructed a New American, UC Berkeley sociologist G. Cristina Mora writes that, before government classification, there had been a “consistent empirical finding” that “Mexican Americans, Puerto Ricans, and Cuban Americans overwhelmingly considered themselves to be separate groups. They ‘didn’t really identify’ with one another, and they ‘didn’t really know what Hispanic meant!’” While the categories of white, black, and Native American make sense in the context of US history, later arriving groups have had their “official identities” constructed in Washington.

This demonstrates two points. First, the power of government to shape culture is quite extensive if it can create identities out of thin air. AAPI is a reductio ad absurdum of this idea; I still can’t believe anyone can utter the phrase with a straight face, much less emotionally identify with the category. Second, there can be a delay between a time a policy is enacted and when its cultural influence is felt in full. {snip}

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The punchline of all this is that an anti-wokeness agenda would involve, at the very least,

1) Eliminating disparate impact, making the law require evidence of intentional discrimination.

2) Getting rid of the concept of hostile work environment, or defining it in extremely narrow and explicit terms, making sure that it does not restrict political or religious speech.

3) Repealing the executive orders that created and expanded affirmative action among government contractors and the federal workforce.

One reason to be optimistic is that much of this work can be done without having to pass laws, which is almost impossible to do on controversial issues in the current environment, but through the executive branch and the courts. Republican administrations have tried similar things in the past, though usually without making anti-wokeness a real priority.

In Reagan’s second term, repealing affirmative action requirements for contractors was apparently on the table, but the administration backed down in the face of congressional resistance (see also this). More recently, a Washington Post story reporting that the Trump Administration was thinking about undoing disparate impact was dated January 5, 2021 (yes, “January 5, 2021” as in the day before January 6, 2021). Politics is about priorities, and the Trump administration clearly cared little about this issue, despite the president’s voters being animated by concerns about PC.

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