Agency, Equality, and Antidiscrimination Law

Some commentators, perhaps a minority, have argued that the Equal Protection Clause should be read to require the use of race-conscious policies when necessary to eradicate or remedy the most serious consequences of racial inequality. Others have argued that such policies, though not required, should be permitted when duly adopted by the majority of the populace to promote the interests of an historically oppressed minority. Still others, including now a majority of the Supreme Court, take the view that the Constitution forbids virtually all explicit uses of race by the state. In this Essay, we do not enter this debate directly. Rather, we attempt to explore the reasons behind the increasing acceptance of a norm of color-blindness-both politically and legally-and locate those reasons within a particular liberal conception of the limited, neutral state. We then attempt to demonstrate that the movement toward an increasingly strict view of discrimination as simply color-consciousness has not been limited to the equal protection context. We see a parallel move in the regulation of private discrimination under Title VII: a move from the view that Title VII requires, or at least permits, race-conscious actions to a view that the antidiscriminaton imperative in Title VII requires color-blindness on the part of private employers. This development in Title VII doctrine has at times been explicit; but more often it has been implicit, only apparent as a shift in assumptions about the meaning of employer conduct and the prevalence of identity-based discrimination. In the last section of the Essay, we challenge this parallel evolution of the doctrine in these two areas by arguing that many of the reasons for a color-blindness standard in the context of state action are simply irrelevant or incoherent when applied to the regulation of private conduct