LEGL 4500/6500- Employment Law

Dawn D. Bennett-Alexander, Esq. dawndba@terry.uga.edu

Preface

My father grew up in the 1920s and 1930s in Pocomoke City, a small town on the Eastern Shore of Maryland. He told me of stories of those days.

Pocomoke was, and is a quiet town of modest white clapboard homes, churches, a "downtown" of small shops, a drugstore with a soda fountain, and a movie theater. Most of its residents have lived there for generations. The dark and tranquil Pocomoke River runs through the town. It seems a world away from the overdeveloped, bustling, and condominium-littered coast of Ocean City, Maryland, less than an hour to the east. It also seems apart from the trendy Eastern Shore communities where the young, rich professionals of D.C. flock for summer retreats. Pocomoke has always reminded me, instead, of the sleepy Southern towns of South Carolina and Georgia.

During my father’s time, Pocomoke City had a sizable black population that lived in a parallel universe of rigid separation and economic oppression. Segregation was highly formalized and pervasive. Separate housing, separate schools, separate seating at the movie theater, separate bathrooms, separate water fountains, and so on. The town imposed a sundown curfew on blacks. When blacks and whites came together, as on a public street or in a work environment, strict codes of behavior applied: black people always had to acknowledge their subservience, by their posture, physical actions, and manner of speaking.

The economic subjugation of blacks was revealed in the circumstances of my father's household. My grandfather, so far as I can discern, did not possess significant income or wealth. He worked at various jobs, including a stint as mayor. Yet their life was comfortable and gracious—in large measure because, for pocket change, black women cleaned the house, made the meals, and did the laundry.

Thus my father grew up in a community that humiliated and subjugated its black citizens. Of course, the white citizens of Pocomoke would have been deeply offended by such a statement. To them, no humiliation or subjugation existed precisely because they believed blacks to be inferior and that cheap wages were just compensation for workers unfit for more complex occupations. Like the slave masters of the century before, the whites of Pocomoke presumably believed that they had "elevated" black people to an appropriate social and economic status.

My father left Pocomoke to attend college, and except for visits to his family he never went back. I never knew him to be other than someone who despised racism; he and my mother taught me as a child that racism was terribly wrong. On the other hand, my father never said or suggested that he felt guilty or responsible for the society of his childhood and its terrible treatment of his black neighbors. I don't think of my father as being responsible for the system of apartheid in his hometown. I am not even sure that he should have felt guilty about the comforts he enjoyed by virtue of that system of economic subjugation. I am sure, however, that his life was somehow forever tangled up with the legacy of Pocomoke.

The educational resources of the town were devoted to my father and the other white students and not to the young black men and women across the tracks. The sense of confidence he drew from his academic, athletic, and social successes arose from a system stacked in his favor because he was white. Even the clean and comfortable home in which he grew up was the product of a system that left blacks with no real bargaining power with respect to their own labor. My father could never give back what had been taken from others and given to him. While neither responsible nor simply guilty, he was complicit.

I had a different childhood. I grew up in a series of essentially all-white suburbs. No black women scrubbing the kitchen floors, no curfew, no racially divided movie theaters. Yet the de jure, and later de facto, segregation of my upbringing in America in the 1950s and 1960s worked to my advantage also, and to the disadvantage of my black contemporaries.

I attended public schools in New Jersey, Florida, and Virginia. Until high school I never shared a classroom with a black student, and even the high school I attended was almost entirely white. In the fall of 1967 I entered the University of Virginia. In response to litigation, the university was in the process of admitting its first black students. It would be several more years before it would admit women to the college, again, only after litigation.

I do not know firsthand the nature of the educational experience of my black contemporaries. While I sat in white classrooms, they attended "their own" public schools. Presumably, while I attended the University of Virginia, most blacks, except for the handful of brave young men who integrated the university, either skipped college or attended one of the black colleges in Virginia. I do know that throughout my years of education the state's resources were disproportionately directed to white schools. I also know that I grew up without having to deal with the negative presumptions that attached to my black contemporaries.

I do not see myself as responsible for the racially separated school systems that I inhabited, or for the racism that accounted for them. I do not think it is a matter of guilt for me. On the other hand, like my father, I am complicit. I can never give back the advantages I enjoyed by growing up in the 1950s and 1960s in a society that stacked the educational, social, and employment deck in my favor by virtue of my race.

And complicity doesn't stop with the inequalities of the past. As I cannot give back the advantages of my childhood or erase the disadvantages experienced by my black contemporaries, I also cannot avoid the continuing advantages I experience while living in a culture still gripped with prejudices that accord to me an assumption of worthiness that it denies to blacks, women, and others deemed different by the dominant class. This is the terrible and unwanted gift I receive every day of my life. And the fact that I receive it, wanted or not, keeps me in a state of complicity.

This circumstance is not unique to me. Whatever one's family history, we all live in a culture in which being a white as opposed to a member of a racial minority, being a man as opposed to a woman, being materially well off as opposed to poor, brings one into a state of complicity. Even those who reject stereotypes cannot escape the correlative advantages which our culture accords to them. We are all tangled up in it.

Yet we who are advantaged are not merely complicit. Most of us still harbor some version or degree of prejudice, and the body of contemporary law that most directly affects the lives of blacks, women, and poor people embodies and sanctions these prejudices.

I have explored the pathology of this law in writings over the past six or seven years. As a white man who has never lived in anything close to poverty, I can add nothing to the literature in the way of personal narratives of the experience of prejudice and intolerance; instead, I have explored the process of the construction of the law, and in particular the role of narrative in that construction. When I began this scholarly enterprise, my stated ambition was to advance the cause of reform by revealing clearly the presence of our worst prejudices in the law itself. I imagined that most of us would reject a body of law within which were embedded stories of racism, sexism, and class prejudice. Today I am less hopeful.

This book represents an overview of this scholarly journey. Chapter 2, "The Rhetorical Tapestry of Race," is based on two previously published essays: "The Rhetorical Tapestry of Race," published in the William and Mary Law Review in 1990, and "Innocence and Affirmative Action," from the 1990 Vanderbilt Law Review. The article "The Rhetoric of Poverty: Their Immorality, Our Helplessness," published in the Georgetown Law Journal in 1991, is the source for Chapter 3. Finally, Chapter 4 is based on the paper "Despair and Redemption in the Feminist Nomos," published in 1993 in the Indiana Law Journal.

I have addressed in turn the categories of race, poverty, and gender. This construction is convenient but potentially misleading. It is convenient because it permits a focused analysis of each of these important strands of law and cultural prejudice. It is misleading because it suggests that the law and the individual's experience of law and prejudice are similarly compartmentalized. This is not the case.

The law in actual operation is more complex than such compartmentalization might suggest. Taking the example of the current "case of the century," the state's law of murder as applied to O. J. Simpson surely incorporated the fact that the defendant was black. In other words, race mattered in the Simpson trial. But other things also mattered, most notably the defendant's wealth and celebrity status. These things allowed Simpson to assemble a "dream team" of defense lawyers and a cadre of high-priced expert witnesses. But his wealth and status had yet another effect. After all, a large measure of the shock value of the case came from the incredulous quality of it all: O. J. Simpson butchered his ex-wife and Ron Goldman? The initial incredulity, which as time passed evaporated in the minds of most white Americans, was largely a product of Simpson's celebrity status, but it was also a product of his wealth and general social position. Imagine instead that the defendant in the Nicole Brown / Ron Goldman slaying had been a poor black man without social status. Such a defendant would not only have had to make do with an overworked public defender as his lawyer, he would also have lacked something else that favored 0. J. Simpson, the fact that a person of wealth and status seems in the dominant narratives of this culture to be less likely to be capable of brutality than a person without these attributes. Thus, Simpson was not merely a black defendant, he was a black, rich, famous, physically attractive defendant. All of this mattered.

In the aftermath of the Simpson verdict it seemed as though black America and white America had witnessed two different trials. Most white Americans not only saw the verdict as a terrible injustice, they were also at an utter loss to understand the opposite reaction by most black Americans.

The racial divide that "emerged" from the Simpson verdict was a product of narrative. By "narrative" I mean the stories that reflect our personal and collective experience, and thus embody our values and worldview. Most black Americans possess, as part of the narratives of their community, stories of police misconduct and brutality. For them, the idea that Simpson was framed by a massive police conspiracy is utterly plausible. Even those African Americans who doubted the existence of a conspiracy in this particular case viewed the verdict with the assumption that such police misconduct in their communities is a common reality. Possessing that assumption and those narratives, even an observer who harbored doubts about Simpson's innocence might justify the verdict as the "sending of a message" to police and to white America.

Most white Americans, in contrast, do not possess narratives of police as routinely lying and framing innocent defendants. They see such misconduct as extraordinary, aberrational. Thus they couldn't believe that a massive police conspiracy existed in the Simpson case. And they certainly couldn't comprehend any justification of the verdict grounded in the need to send a message—a message about what? Possessing their own narratives, all that most white Americans could see in the Simpson case was a guilty black man set free by a mostly black jury. How could anyone cheer such an outcome? they wondered.

Narratives and the prejudices they contain are complex and overlapping. Moreover, the issues I have chosen to focus upon here represent an incomplete list of the prejudices that inhabit our law. This book specifically examines the racism directed at African Americans, but Asian Americans, Latinos, Hispanic Americans, and Native Americans are also subject to racism. The pervasive and powerful homophobia that afflicts this country is also not analyzed here, but if I make my case for the law's embrace of these prejudices against blacks, women, and the poor, the implications are clear for the other terrible prejudices that grip our society.

Today many Americans express their exasperation at the persistent claims to victimization advanced on behalf of blacks, women, people in poverty, and other minorities. These self-proclaimed victims, it is said, need to stop whining and start working. A central character in this cultural dialogue is the "innocent" white man, seen as the true victim of contemporary times, assaulted by the effects of affirmative action and by a society that denies him the respect and regard he has earned.

I have no great expectations that this book will immediately shake the claimed sense of innocence held by so many Americans today or change the social and legal agenda they advance. The political forces that today proceed with the dismantling of affirmative action and the "end of welfare as we know it" seem nearly irresistible. When, as a child, I traveled the South in the 1950s and 1960s, I saw chain gangs of black men working alongside the road. It now appears that my grandchildren will be more likely to witness that specter again than they will be to see the world of racially integrated communities and schools that I once imagined for them.

Perhaps this book, like a small boat butting against the bow of a huge barge, is unlikely to alter the basic course of things. Still, it is a more useful and, to me, attractive endeavor than to merely tag along in the wake of the monstrous vessel that is our new conservative social agenda.
 

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