Preferential Hiring and “Special Treatment”: It’s all Relative

Noah Zatz, Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015), available at SSRN.

This year’s law and scholarship of employment discrimination has invited critical thought, new strategies, and rethinking of traditional legal methods like never before. Among the most innovative pieces is Professor Noah Zatz’s Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015).  Zatz laments the defensive posture assumed by those on the vanguard of civil rights activism and litigation when, in his own words, “the best defense of civil rights law requires a strong offense.” (P. 1155.)

He proceeds to take issue with the notion that disparate treatment law ought to be color and status-blind, citing the law of affirmative action in particular, and noting that “rather than retreat from ‘special treatment accusations,’” those who wish to preserve and strengthen civil rights laws and protections ought to “name it and claim it,” (p. 1157) meaning confronting these accusations and keeping the law’s (and our) focus on the avoidance of disparate treatment without obsessing over whether this might necessarily invite or involve some special treatment. This eyes-on-the prize approach means endorsing proactive steps that can be taken not only by the courts, but by employers to preempt discrimination. It also means being vigilant about distinguishing legitimate, goal-advancing interventions—that many are quick to dismiss as special treatment—from “raw redistribution.” Ultimately, Professor Zatz concludes, a “[f]ailure to appreciate the remedial context” of affirmative action is precisely what will engender “reckless accusations of ‘special treatment.’” (P. 1157.)

Professor Zatz then observes that the work of trying actively to avoid the disparate treatment of employees can, itself, often be deemed special treatment. This, however, stems from a “failure to acknowledge the relevant nondiscriminatory baseline,” (p. 1158) and the restorative goals and effects of what is too often written off as discriminatory, “special” treatment or racial favoritism. Professor Zatz walks his readers through various scenarios that aim to highlight that the beneficiaries of the “special treatment” decried too readily by many are not benefiting because of their race, but because they have been discriminated against because of their race. His eloquent, well-reasoned analysis of an issue and arguments all too often glossed over in debates over affirmative action isolates and crystallizes precisely why affirmative action should not be blindly relegated to the realm of racial favoritism.

Through insightful illustrations and examples, Professor Zatz aims to isolate for his reader, and refocus his reader on, the notion of discrimination as a deviation from a desired baseline of nondiscrimination, and away from the notion of priority hiring or affirmative action as discriminatory, illicit special treatment. He is able to do this by exhorting his reader to consider the “discriminated against” status of one upon whom preferential treatment may be conferred, rather than that individual’s racial or other protected class status. In other words, the treatment is remedial, rather than illicit and suspect. As Professor Zatz puts it, “[t]he relevant baseline for evaluating the priority hiring has to be the world as it would have been without the supervisor’s initial disparate treatment, not the world created by that discrimination. If there is no better way to identify the true victim of discrimination, then either we just throw up our hands and accept the discriminatory status quo, or we modify it with imperfect tools.” (P. 1162.)

Professor Zatz also addresses some popular critiques of affirmative action, among them that to the extent that some of its beneficiaries are not actually the precise people who were unfairly deprived of employment because of their race, they are, in fact, being treated differently (preferentially) because of their race. He also addresses the critique that “innocent” members of non-discriminated-against groups, who neither engaged in nor benefited from discrimination may find themselves “displaced.”   Professor Zatz answers that while affirmative action invariably allows some undesirable results, “to dismiss this remedy for its imperfections is to apply a double standard: the possible loss (of an accurate remedy) to the worker discriminated against is valued less than the possible loss (of an inaccurate remedy) to other workers….” (P. 1163.) Using illustrative examples of his invention and from actual cases, Professor Zatz emphasizes the notion that strategically, the best thing to do when advancing or justifying a remedy that objectors term affirmative action is to “own” the term, using it to strengthen what is being accomplished, rather than backing away from the concept.

Next, Professor Zatz expands his analysis to address claims that exist beyond traditional disparate treatment. Specifically, in his attempt to stave off criticism that such claims “invit[e] or require[e] special treatment,” he refocuses his reader on “the substance of the nondiscriminatory baseline,” invoking employer liability in third party harasser claims, the accommodation mandate of the Americans with Disabilities Act, and Title VII pregnancy disparate impact cases. (P. 1168) He notes that the imposition of liability in the former suggests that the alleged unlawful behavior “disrupts the nondiscriminatory baseline that the employer must maintain,” and that in each instance, “the special treatment accusation really functions as a stalking horse for an underlying dispute about the concept of discrimination.” (P. 1169.) He adds that the latter two share the facts that “(1) absent remedial action (“accommodation”) by their employers, individually identifiable workers face workplace harm because of their protected status, and (2) they face this harm even in the absence of disparate treatment by their employers.” (P. 1179.) In each case, his searching comparison between the principles at play in representative caselaw and the non-discrimination baseline proves insightful and illustrative of his ultimate argument that “special treatment” is not a trump card that nullifies the legitimacy of the remedy or claim against which it levied.

This piece’s careful and logical analysis highlights that which should be obvious to those too quick to dismiss affirmative action or certain remedies as just another way of discriminating against the rights of innocent third parties because of their race, sex, or other status: “Whenever we refuse to acknowledge the remedial character of employer action, these accusations emerge because remedies…are given out to those whose injury calls forth the remedy. When that injury is ignored, it mistakenly seems that the remedy was allocated based on race, sex, or disability, not based on subjection to race, sex, or disability discrimination.” (P. 1178.) (Emphasis added). He also eloquently demonstrates, through intricate examples and analysis, that race or other status consciousness is not only not tantamount to invidious discrimination, but it is often necessary to avoid or remedy invidious discrimination.

Cite as: Kerri Lynn Stone, Preferential Hiring and “Special Treatment”: It’s all Relative, JOTWELL (March 28, 2016) (reviewing Noah Zatz, Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015), available at SSRN),