Factless Jurisprudence

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment of the protesting employee. Yet, as Smith\u27s research uncovers, racial protest typically occurs as a reaction to subtle (and explicit) discrimination against persons of color in the workplace. Citing to interdisciplinary works, particularly medical research, Smith argues that confronting acts of racism improves the physical and emotional well-being of blacks, who suffer negative health consequences when they stifle their reactions to racial antagonism. By linking racial protest to worker health, Smith hopes to provide a richer context for juridical analyses of Title VII anti-retaliation litigation, a context that could lead to more antiracist applications of antidiscrimination law. Smith\u27s work makes a critical contribution to legal discourse on the problem of inequality and the limitations of traditional juridical approaches to subordination. While his paper offers a sophisticated and compelling reading of doctrinal failings in this area of law, I want to push his analysis further on three particular points that his work implicates, but which could use more theorizing. First, Smith\u27s article implicates the social or expressive nature of identity categories and the current failure of courts to grapple with expressive identity. Rather than viewing identity categories as closely linked to speech and expression, courts treat identity as separate from the necessary speech and conduct that sustain its existence. Second (and related to the first point), Smith\u27s article illuminates a broader problem in contemporary civil rights jurisprudence - the failure of courts to contextualize their decisions in historical, social, and economic realities (including the reality of expressive identity). Courts often permit racial and other forms of discrimination to escape judicial invalidation because their understanding of race is ahistorical: they do not recognize the subtle mechanisms of discrimination in a society that demands formal equality. While Smith\u27s article addresses this problem in the narrow confines of Title VII jurisprudence, he could enhance his jurisprudential model for understanding the anti-retaliation provisions by analyzing the pervasive and comprehensive nature of decontextualized juridical analysis. Finally, Smith\u27s work should remind readers of the vulnerability of oppressed classes in civil rights litigation. As I argue more thoroughly in a forthcoming work, in the context of equal protection jurisprudence, the Supreme Court has inverted the concepts of privilege and subordination. The Court provides its most heightened level of protection to historically advantaged groups and to members of dominant classes, particularly whites, who challenge remedial legislation or governmental policies designed to alleviate the material consequences of discrimination. At the same time, the Court denies a careful application of civil rights laws in cases involving claims of discrimination by persons of color. In the context of Title VII, as Smith\u27s article illuminates, courts often fail to ground their analyses on the histories of victims of racial discrimination and instead apply a white normative model, which effectively protects acts of white supremacy in the workplace against the efforts of persons of color to counter such indignities through their own protests and in the litigation process. Consequently, courts have effectively favored white supremacy over racial protest; they have inverted the legislative purposes of Title VII. Critical theorists do not treat judicial marginalization of persons of color as merely accidental; rather, they see courts as having a central role in sustaining social hierarchy. The indeterminate nature of law and legal analysis, moreover, heightens the vulnerability of oppressed classes in equality jurisprudence. Despite the perceived gains engendered by a rights approach to justice, the malleable nature of law has meant that legal structures may not adequately secure the interests of oppressed classes