By Thomas F. Powers
Thursday, January 25, 2024
The revolt against “wokeness” is an impressive achievement of the popular mind. To complete the thought, though, we will need to take the risk of naming the real source of the unease wokeness inspires: the forceful interventions of anti-discrimination politics that gained the backing of the law from the 1970s through the 1990s and then irradiated corporate culture and higher education.
Consider five key features of wokeness. What is resented first and foremost is a species of pedantic moralizing that often takes the form of official or semiofficial teaching or “training.” Second, while wokeness certainly seems (somehow) political, it is most clearly pressed upon us not by government but by the efforts of our fellow citizens acting as individuals — bosses, co-workers, the folks in HR, teachers, students. Somehow enforcement of our preachy political order’s mandates has been privatized. It is thus also everywhere — invasive, pervasive, imperialistic. Third, wokeness is characterized by hypersensitivity to perceived insults, slights, and indignities aimed at groups protected by the law — and by hypervigilance in confronting them. What happened to tolerance, to live and let live? Fourth, the woke mentality is emphatically punitive and, as a result, often angry; its moral center is a form of corrective or retributive justice and its most visible and forceful consequences are penalties that sting — above all, firing. Finally and most obviously — and the result of all of the above — is the tendency to silence and censor in behalf of protected groups. Cancel culture and political correctness are not the whole of wokeness, but they are obviously related phenomena.
We need to see better than we do how all of this may be traced back to the civil-rights regime and, in particular, to the laws of the new order as they have developed and expanded in the years since the 1960s.
Most prominent attempts to explain the emergence of these phenomena have emphasized intellectual history, the universities, the influence of bad ideas. Bad ideas certainly abound. Intersectionality, multiculturalism, diversity, microaggressions, trigger warnings, and safe spaces belong to a new and perplexing social and political world. Heterosexism, homophobia, cisnormativity, transexclusionarity, and myriad other accusations presume a revolutionary understanding of gender and sexuality. A whole new constellation of terms of moral and psychological import — “identity,” “inclusion,” “recognition,” “respect,” “equity,” “social justice” — competes with an older roster of terms from the liberal tradition (“freedom,” “representation,” “interest,” “toleration,” etc.). There are indeed many new concepts and categories here, bewildering and confounding, a kind of foreign language.
Oddly, those who attack woke ideas have almost nothing to say about the anti-discrimination revolution. What they do say indicates that they see civil-rights politics in wholly uncritical terms. Yet no amount of criticism of woke ideas will defeat them if the institutional and legal underpinnings of the new order remain unexamined and unchallenged. For the foreseeable future, understanding ourselves will require that we examine closely the civil-rights regime and the laws that make it so powerful.
The “center” of anti-discrimination law is Title VII of the 1964 Civil Rights Act, as it came to be expanded in subsequent decades. The many expansions of Title VII took place mostly out of sight (in guidance documents from the Equal Employment Opportunity Commission and in federal-court decisions), but what they achieved created our woke world. These developments were pivotal because they defined key terms for other areas of civil-rights law and pioneered its most effective enforcement strategies.
Initially discrimination meant “disparate treatment” by employers: employment decisions (hiring, firing, promotion, etc.) made deliberately for discriminatory reasons. Discrimination was greatly magnified when it was redefined under Title VII to include stereotypes. Now what people thought about members of protected classes became relevant. Then it was expanded again to include harassment. Like the ban on stereotypes, prohibitions on “hostile environments” required an effort to alter our opinions and beliefs. But they also reached beyond that to consider relationships, and not just company–employee relationships. Employers became responsible for interpersonal interactions involving everyone operating anywhere in their sphere of influence: not just managers and supervisors, but also co-workers, contractors, suppliers, and customers. Discrimination broadened out in a different direction when the existence of inequalities among groups was likewise deemed “discrimination” — “disparate impact” as opposed to “disparate treatment.”
Once stereotypes, harassment, and disparate impact became entrenched tools of anti-discrimination law, employers found themselves liable for a much larger category of offenses. Lawsuits with settlements in the tens and even hundreds of millions of dollars — and a lot of bad publicity — started to become part of the picture.
Not surprisingly, employers wanted a way to protect themselves, to find some legal “safe harbor.” The EEOC and the courts offered a partial solution in the form of another big expansion of Title VII. Now employers were expected to take “preventive and corrective measures” on their own. Employers would need to craft policies echoing the demands of the law, designate special offices and officers to police them, teach the lessons of the law to their employees, and take decisive corrective — which is to say punitive — measures to ensure that everyone paid attention and adhered to the law’s commands.
In 1998, in its unjustly unheralded “Ellerth-Faragher test,” the Supreme Court put its seal of approval on this internally coherent and manifestly powerful regime of employer enforcement of anti-discrimination law, sanctioning what the lower courts and the EEOC had worked out over the previous two decades. Lawyers then passed the word along to employers, who in turn strived, very effectively, to build a “culture of compliance.”
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It is this powerful if opaque combination of regulations and norms that provides the central nervous system — and backbone — of what we call “woke capitalism”: lawsuits undertaken by private parties with help from the EEOC; redefinition of discrimination to include both stereotypes and hostile-environment harassment; liability rules holding employers responsible, like some secular providential intermediary, for the deeds, words, and thoughts of everyone under their care; and, finally, an extensive and vigorous system of preventive and corrective measures to bring everyone to heel. Universities went through similar changes under the auspices of Title IX, which is itself built on the terms of Title VII.
These legal developments led directly to the features of democratic life to which anti-woke sentiment has drawn our attention.
First, pedantic moralizing is a necessary, obvious, and essential feature of the new order. Anti-discrimination law seeks very directly to alter the hearts and minds of citizens. The EEOC has always held education to be one of its two main aims (the other being “law enforcement”). Today, the EEOC Training Institute offers civil-rights instruction to the public and private sectors alike — as do other offices in other agencies of the federal government. Multicultural education, backed by state laws and accreditation policies, has been a requirement of teacher-education training since the 1970s. The most visible effort of moral and civic education associated with anti-discrimination is of course diversity training delivered in the workplace and, through Title IX and other legal requirements, in our schools and universities. There is even a Supreme Court decision that stands for diversity training. In Kolstad v. American Dental Association (1999), Justice Sandra Day O’Connor stressed that “the purposes underlying Title VII are . . . advanced where employers are encouraged to . . . educate their personnel on Title VII’s prohibitions.”
Second, the intrusion of our fellow citizens acting to enforce the imperatives of anti-discrimination in every domain of life is a direct consequence of the law. This is visible in the new offices and officers that were needed to carry out the mandates of the new order. Offices of equal opportunity (or, today, of diversity, equity, and inclusion) and myriad other institutions (diversity task forces, bias-incident response teams, workplace-responsibility committees, equity teams) work under the supervision of necessary agents of the new order (equal-opportunity and DEI officers, Title IX officers, the “chief diversity officer”). When organized in the bureaucracy of some large employer or educational institution, the work that is done here certainly looks — and in some sense is — “official”: formulating and publicizing internal policies, assessing the status or climate of the institution and those operating within it, monitoring bias-reporting systems, fielding discrimination and harassment claims, conducting investigations, keeping records, and meting out consequences. But while the agents of this large effort wield considerable authority, they operate in only a semiofficial capacity that makes distinguishing public from private very difficult.
Third, these laws have made us hypersensitive and hypervigilant. To be woke is perhaps above all to be alert to myriad injustices. This is partly just the broad consequence of a welter of laws that recognize and reward — financially, morally, civically — complaints of interpersonal injury and offense. But other contributions of the law are not so indirect. Before there was diversity training, there was (in the 1980s and ’90s) “sensitivity” training. Every effort of anti-stereotype or anti-harassment training (also anti-bullying and bystander training) cannot but aim to heighten sensitivity to the different kinds of offense and insult that can be perceived as discrimination. Moreover, any person who confronts his or her accuser in this context is guilty of “retaliation” and banned and punished under anti-discrimination law. Reporting requirements — where failure to adhere can have serious consequences, especially for managers or other persons in positions of responsibility — mean that we are all our brothers’ and sisters’ keepers (and accusers), responsible for their actions and beliefs as well. The decent citizen of the anti-discrimination regime, the person who has taken its lessons to heart, is precisely someone on the lookout for discriminatory injustice and ready to confront the doer of the unjust deed and report him to the proper authorities.
Fourth, wokeness’s punitive spirit is fully institutionalized in the law. The crucial legal tool here, corrective firing, is widely feared and hated, and therefore a vital source of anti-woke anxiety. “Corrective firing” is my term for anti-discrimination law’s most powerful coercive instrument. The EEOC emphasized the need for corrective measures as early as 1980; its guidance documents of the 1990s, subsequently embraced by the courts, leave nothing to the imagination. “Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary.”
Finally, there is censorship. Recent battles over free speech tend to highlight “private” efforts rather than the doings of government: on campuses, policing microaggressions, creating safe spaces, insisting upon trigger warnings and diversity statements; on internet platforms, corporate censorship in various guises. But these limitations of speech are all in fact entrenched in the law.
By far the most important of these censorship measures derives from the anti-stereotype and anti-harassment measures of Title VII (and their extension through Title IX) summarized above. These lay the firm basis for the seemingly “private” efforts of censorship we see all around us, and they come armed with real power to enforce — retraining, corrective firing, etc. There was a brief moment in the 1990s when defenders of free speech had second thoughts about this. But such doubts were dismissed at the time as “collateral censorship,” to use law professor Jack Balkin’s chilling phrase. A dozen other important anti-discrimination policies likewise police speech in myriad ways. The Supreme Court has never truly faced the free-speech implications of all of these developments taken as a whole.
Today’s cancel culture is the offspring of such censorship coupled with corrective firing, which magnifies the effects of censorship through the law’s punitive measures. The internet gatekeepers now silencing people act on their sense, established for a quarter century, of what the law already requires.
In the 2000s, as the demands of the law were institutionalized, they imprinted themselves on the minds and hearts of people operating within the realm of their authoritative reach. A new mind-set and sensibility took hold in many large corporations, a world of woke employees led by woke CEOs answering to woke corporate boards to serve sometimes-woke customers. But without the earlier developments in the law, these later changes in corporate culture would not have had the backing of fear and force that made them powerful and sustained them for the long haul.
When they burst onto the scene in the 2000s, internet-based social media accelerated wokeness by creating a new social space where offensive speech became a problem that anti-discrimination law had to confront in front of everyone. But here too censorious responses to anything that might be interpreted to be in the ballpark of a “hostile internet environment” were anchored in the law. The silencing that was undertaken by internet and social-media companies borrowed from anti-harassment and other policies that these corporate behemoths, employers all, already had on the books. When woke internet mobs called for people to lose their jobs or to be canceled in other ways, they too were only imitating features of the law and the behavior it encouraged.
In the next decade the civil-rights revolution itself was reignited. The Supreme Court’s gay-marriage decisions of 2013 and 2015 seem, like Brown v. Board of Education, to have sparked a wildfire of new civil-rights activism. The Ferguson protests of 2014 and the Black Lives Matter movement made the term “woke” a rallying cry. Trump’s 2016 victory no doubt played a role. In 2017 the Me Too movement (a name taken from “me-too evidence,” a term of sexual-harassment law) added moral energy to these developments — as did the murder of George Floyd in 2020. All of these events provided new motivation and opportunities for the expanded Title VII regime to be put to work, but the energies they unleashed were channeled through that preexisting legal architecture.
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The great wisdom of today’s anti-woke ire is to be found in its dawning awareness of troubling aspects of the fight against discrimination. In its ambiguity, the term “woke” is useful because it permits criticism where criticism seems forbidden. But this means that the price we pay for the work it does is a certain obscurity or lack of clarity that may keep us from facing the central issues squarely.
The civil-rights revolution, which began in earnest in 1964, is here to stay. And its basic achievements are most worthwhile and should not be undone. But we must face the fact that not everything it brought about has been for the good. It has unattractive, unlovely, perhaps unhealthy features.
This begins to come to sight in a general way when we note that anti-discrimination politics — civil-rights politics — now challenges our liberal-democratic tradition in fundamental ways. Consider only the five features of wokeness I have highlighted. None of them is consistent with the liberal tradition; all of them fly in the face of one or another important assumption or practice of liberal politics — the tradition of toleration, the morality of individual freedom, the separation of public and private, the idea that legislating morality is wrong.
We are in the grip of a moral-reform effort that modern democracy undertook with the best of intentions. But moral reform, when equipped with political force and the generalizing power of law, can become overzealous, incapable of self-criticism, and unwilling to see political life in all its complexity. That is the deepest teaching of anti-woke anxiety, one we will need to heed if it is to lead to meaningful reform.
This essay is adapted from his recently published book American Multiculturalism and the Anti-Discrimination Regime.
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