REFINING THE “EQUAL PROTECTION CLAUSE”
OF THE WORKPLACE
The law has a well-established role in securing equal opportunity in the workplace. By prohibiting discrimination in the composition and the treatment of a workforce, the law of equal employment tends to make workplaces more heterogeneous and less stratified on the basis of race, sex, and other traits that have historically shaped individuals' employment opportunities. It tends, in short, to produce workplaces that are more integrated and more likely to foster constructive intergroup bonds. So one important component of a strategy for building the civic potential of the workplace lies in the already well-developed legal effort to make workplaces more egalitarian, particularly along lines of race, ethnicity, and sex.
Yet the law's commitment to equal opportunity in the workplace, and its tendency to produce greater integration, does not always add up to an affirmative commitment to workplace integration. It should. We have seen that workplace integration—both more-than-token representation and genuine intergroup interaction—is a crucial social good. Moreover, as an empirical matter, workplace integration is closely linked, even essential to, real workplace equality. 1 So the common theme of this brief foray into the implications of the “working together” thesis for antidiscrimination law is this: Antidiscrimination law should be interpreted, applied, and if necessary reformed so as to affirmatively promote workplace integration. That makes sense within the conventional terms of antidiscrimination law, given strong empirical evidence that more-than-token representation of minority groups mitigates unconscious and subtle biases against members of those groups within the workplace. It also makes eminent sense for the reasons developed here: Workplace integration advances the compelling societal goals of mending and narrowing social (and especially racial) divisions and of promoting genuine equality on the basis of race, ethnicity, and gender.
The significance of linking the statutory goal of intergroup equality and the goal of integration can be seen in a rather obscure corner of Title VII doctrine: