Professor David Strauss's article is a thoughtful, carefully developed economic analysis of current prospects for efficient enforcement of the laws prohibiting racial discrimination in employment. After canvassing various theories of discrimination, Strauss concludes that severe limitations exist in applying to modem conditions legal concepts developed in the early stages of enforcement of Title VII of the 1964 Civil Rights Act.
A brief summary of his major conclusions may be useful as background for my comments, which are both approving and disapproving. Strauss notes that the overt racial discrimination which existed (most visibly in the South) at the time of the 1964 Act is largely absent today. He believes that open discrimination is disapproved of by the bulk of the American people, and few, if any, employers would risk the opprobrium that would be generated by an open "no blacks need apply" stance.
I believe Strauss is too quick to pronounce the death of racial animus, and too facile in his argument that economic efficiency overcomes discrimination against superior minority employees. I will argue, first, that efficiency is not a reliable combatant against discrimination in several employment arenas, and that prejudice itself is essentially nonrational; second, that disparate treatment lawsuits are not nearly so problematic as Strauss implies; and, third, that several empirical studies suggest the continuing virulence of discrimination in minority hiring and promotion as well as in the firing of minority employees. In response to Strauss's concern that taste-based discrimination will operate so covertly as to be undetectable, I will argue that the holdings of two recent Supreme Court decisions combined with the enactment of a few legislative proposals can work either to expose covert discrimination, or to make its practice prohibitively expensive for the employer.
Finally, I explore some of the practical political problems implicated in Strauss's proposals, and suggest what I believe are politically more feasible alternatives.
Leroy D. Clark, The Law and Economics of Racial Discrimination in Employment by David A. Strauss, 79 GEO. L. J. 1695 (1991).