Beyond positive discrimination

In a resolutely ambitious work, sociologist John Skrentny proposes a reformulation of the racial question in the workplace in the United States, outside the prism ofaffirmative action. He sees the premises of a new policy, which he calls “racial realism”. But can we therefore postulate that race is an insurmountable reality?

A strategy for managing the racial factor

As an extension of his previous work, devoted in particular to the political-administrative genesis of positive discrimination in employment and the process of delimiting all of its beneficiaries, the sociologist John Skrentny, professor at the University of California ( San Diego), in a work as stimulating as those which preceded it, now undertakes to inventory and evaluate methods of taking into account “race” which would pursue purposes other than the resorption of the disadvantages resulting of past injustice, and which the author brings together under the name “racial realism”. According to him, the practices in question are distinguishable fromaffirmative action by their potentially permanent rather than temporary nature, by their disconnection from any compensatory aim and, even more, by their founding postulate, by virtue of which the status of member of a racial group would be assimilated to an objective qualification with regard to the position to be provided – to a relevant indicator of future professional performance whose integration into the recruitment process would contribute to promoting legitimate “organizational objective(s)” (p. 273).

Once the main object has been defined within the framework of a captivating introduction, the chapters which follow, of a descriptive orientation and generally of less density, endeavor to illustrate the existence of such a “management strategy” (p . XI) of the racial factor while synthesizing the studies relating to its effectiveness and specifying its status with regard to the law in force in a heterogeneous set of sectors successively examined (which range from the food industry to journalism, including medicine, marketing, sport, advertising and the performing arts). Despite the mixed conclusions of these studies, the dominant observation is that of a diffusion of “racial realism” in a growing number of areas, largely removed from the influence of partisan divisions. Particularly blatant in the case of jobs not subject to anti-discrimination legislation – notably those filled by appointment and exercised within the government apparatus – the phenomenon is also observable where any form of racial discrimination is theoretically prohibited, without the existence of this gap between the law and the fact is not commonly perceived.

The gap in question is, however, very large. On the one hand, as the author points out, according to the Title VII of Civil Rights Act of 1964, among the criteria of prohibited discrimination identified by the legislator – race, religion, sex, national origin, etc. – race is the only one whose use cannot be exceptionally justified by its intrinsic relevance given the nature of the position considered – the only one that can never be defined “in good faith (as a) professional qualification” (bona fide occupational qualification). On the other hand, and contrary to what a certain number of observers had expected or recommended, the case law Grutter v. Bollinger of 2003, by which the Supreme Court found compatible with the principle of equality enshrined in the Fourteenth Amendment to the Constitution the taking into account of the racial factor in the name of the epistemic and political virtues of “diversity” in educational establishments elite superior, has never been transposed by the courts to the employment sector. Nor has it been extended to secondary education, either with regard to students or with regard to teaching teams. In this regard, the 1986 decision Wygant v. Jackson Board of Educationin which an affirmative action program intended to “diversify” the teaching force in order to provide black and Hispanic schoolchildren with “positive role models” was declared unconstitutional (role models) in sufficient numbers, has never been called into question, even though it is the only position taken by the Supreme Court on what J. Skrentny calls “racial realism”. Only in the case of the police has the consideration of the “race” of individuals during recruitment or assignment decisions been endorsed by the courts as an “operational necessity” (p. 122). This exceptional regime, initially intended to protect black agents from the racist violence to which they would potentially find themselves exposed in white neighborhoods, today aims to relegitimize the institution in the eyes of the population of black neighborhoods, in a context where the almost all of the urban riots that have occurred since the second half of the 1960s have been triggered by police “blunders” (proven or alleged). Finally, in the name of realism (without adjectives) and without apparent moods, the author maintains that the growing gap generally observed between the content of legal norms and the social facts falling within their scope cannot be resolved. only by an adaptation of the law in force – today almost obsolete – to a development presented as irreversible.

Limits of “racial realism”

This thesis is, however, debatable. Indeed, even though the formula “racial realism” may seem to reflect a presupposition according to which race as a social category is an unsurpassable reality, deracialization strategies remain conceivable and there is nothing to indicate that they are all doomed to failure. It is even possible to think that positive discrimination – which the author, to better distinguish it from the new object constructed by him, abusively reduces to its retrospective and compensatory dimension (p. 85) – is part of such a strategy, hypothesis not taken into account by J. Skrentny. In addition, a large body of work in social psychology tends to show that the multiplication of cooperative interactions between members of different racial groups – favored by positive discrimination – is indeed likely to deactivate the stereotypes concerning them, which which, ultimately, should be able to contribute to reducing the salience of race. However important it may be, the diffusion of “racial realism” in the aforementioned sectors is therefore only one of the dimensions of a complex dynamic that the book only partially illuminates.

Despite the author’s attempts to defuse the objection in advance (p. 12 in particular), another limitation of the work lies in the singularly heterogeneous character of the “racial realism” category. Indeed, if in all cases this refers to “the use of race as an instrument in the service of other purposes” (p. 197), it encompasses and aggregates practices relating to discrimination commonly considered as such as “positive” discrimination in the broad sense and corresponding to several quite clearly distinct aims. Taking into account the racial factor for the purposes of promoting the diversity of ideas and perspectives represented within the company, diversity supposed to generate innovation and, ultimatelyan improvement in performance, is in fact added to the discrimination (“positive” or “negative”) resulting from the adaptation of the employer to the anticipated reactions of others (customers, employees already in post, “users” of a public service…) in contact with the discriminated. Finally, “racial realism” also covers probabilistic discrimination (statistical discrimination) based on the presumed correlation between “race” and the hard work as well as the docility sought in workers called upon to perform arduous jobs involving repetitive tasks and a low level of qualification. In this case, race appears as an indicator of the possession of the required qualities and operates to the advantage of Hispanic and Asian immigrants, systematically preferred to Blacks, and even to Whites.

However, both discrimination by reaction to the potential reactions of others and probabilistic discrimination have been the subject of numerous reflections not mobilized in the work, the originality of which – real in fact – could therefore easily be overestimated. In particular, it is striking to say the least that the notion of probabilistic discrimination is only mentioned in the context of a bibliographical note of a few lines (p. 294, note 43). Coined by Edmund Phelps and Kenneth Arrow, this notion refers to decisions that are prejudicial to the members of a group and are mainly motivated, not by animosity towards them or adherence to an ideology justifying their exclusion, but by the existence of a correlation between group membership – a trait devoid of intrinsic relevance but immediately observable – and a characteristic not immediately observable but relevant with regard to an objective of the decision-maker commonly considered legitimate. It has constituted a centerpiece of the economic theory of discrimination for several decades and is unknown neither to philosophers nor to lawyers. Consequently, its virtual absence in a sociological work of very high quality which also gives a large place to law and devoted to the exploration of a category of which it constitutes one of the main variations cannot fail to surprise, even when We know the tightness of disciplinary compartmentalizations in the American academic field.