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“Reality” in Title VII Symposium: A Critique of Epstein’s Forbidden Grounds, 31 San Diego Law Review 169 (1994)


As quickly as the twinkling of an eye, Professor Epstein acknowledges dutifully America's history of discrimination against AfricanAmericans and passes on. This strategy is central to the overall scheme of his impressive assault upon Title VII. For it is designed to persuade the reader that the history of discrimination has no significant impact upon the current socio-economic status of blacks and their chances for improving that condition, and that racial discrimination is largely a relic of the past. With this obstacle out of the way, the force of his overall argument, if not much of his rhetoric, about the blight of government regulation of discrimination in the workplace seems almost irresistible.

What could be fairer and more sensible, under these circumstances, than leaving it to the marketplace to bring willing employers and applicants together to make mutually beneficial deals? Why should black job-seekers care if some employers desire to discriminate, if they can easily find, or be found by, other employers (even other blacks) who will view their racial identity as irrelevant, if not a preferred characteristic? In any event, bottom-line considerations will ultimately cause most, if not all, of the firms that discriminate to go under. What could be more poetic? But for those who, like me, decline to accept Professor Epstein's invitation to dismiss history and ignore present realities, his argument loses much of its overall seductiveness.

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