Sunday, August 01, 2010

Why the honest discussion won't happen

Eugene Volokh looks at why... “A Discussion [About Race] … Around … Water Coolers” just isn't going to happen.

I certainly agree that it would be good for people to discuss racial issues in a truthful, mature, and responsible way. But I’m pretty sure that discussing such issues around “water coolers” is pretty dangerous advice, at least if one really wants a discussion in which people aren’t afraid to air their views.

1. To begin with, any arguments that some might see as racist could lead to complaints and even lawsuits about a supposedly “racially hostile work environment”; and while such lawsuits are hard for plaintiffs to win, no employer wants to have to fight them, and no employee should want to have his speech be the subject of such suits.
2. Moreover, statements that could be seen as involving race-based generalizations could be later introduced as evidence of racial animus in a discriminatory discharge/demotion/failure to hire/failure to promote case, if the speaker has a role in the hiring process. Recall the Alan-Betty exchange: When Alan is later discharged, and sues for race discrimination, he argues that Betty had some role in the discharge decision, and that Betty’s statement is evidence that she likely discriminated against him based on race.

Again, it’s not clear that such a statement would lead to a victory in court; the jury might not find it probative enough, and in any case it might in some situations be seen as insufficient evidence under the “stray remarks” doctrine. But the risk is sufficient, I think, that many an employer will immediately discipline Betty for her statement, and that at the very least people like Betty would be reluctant to express their true views, either at work or elsewhere.
3. Finally, this isn’t just a matter of liability: Allegedly racist comments can yield bad publicity for the employer, can waste a huge amount of employer time and energy on internal investigation and discussion, and can cause morale problems that interfere with productivity. Even without the risk of litigation, many people have long been cautious about talking about matters that their listeners might feel strongly about a deep and personal level — race, religion, politics, sexuality, and more. Nonetheless, it seems to me that the risk of vast liability has been an important factor in dramatically increasing the cost of expressing one’s candid views about race (especially at work), and in deterring people from expressing those views.

4. What strikes me as most interesting about this phenomenon — other than the practical unsoundness of President Obama’s suggestion — is that the very fight against discrimination and prejudice that the President is trying to promote in his statement has made it much harder to have candid discussions about race. We see the same happening in some measure as to candid discussions about sexual orientation. (The early phases of the gay rights movement also made it socially easier to have such candid discussions, but as sexual orientation discrimination law is beginning to follow the path of racial discrimination law, such discussions are becoming more professionally and legally perilous.) That might be an inevitable and acceptable consequence of that fight. But I don’t think that we can ignore it, and suggest that more discussion — at least around the water cooler — is going to help solve the problem.

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