The Sensible Limits of Non-Discriminiation

By Frank Trippett

How well have you kept up with the great crusade against discrimination? Find out with the following jiffy quiz. Mark each item true or false: 1) A white female office worker, fired after she was caught fornicating on business premises during working hours, filed a charge of discrimination against the employer, contending that she had been dismissed only because her sexual partner was black.

2) A young man fascinated by an expensive dress in a boutique window complained of discrimination because the shopkeeper would not let him try it on.

3) A Caribbean-born stewardess alleged that her airline discriminated against her by asking that she desist from flaunting her voodoo equipment on the job.

4) A veteran faith healer claimed that a Midwestern university was guilty of religious discrimination in refusing to admit him to medical school.

5) A female clarinetist went to court intent on proving that a municipal all-male drum and bugle corps refused her membership on grounds of sex.

6) A state society of certified masseurs demanded that the phrase "massage parlor" be expunged from the language because the term tends to denigrate all practitioners of the hoary art of body rubbing.

Answers: Items 1, 2 and 3 are true. Items 4, 5 and 6 (so far as could be ascertained last week) are false.

How to evaluate your score: If you marked all statements false, welcome back from wherever you have been. If you marked all true, your consciousness has obviously been razed. If you racked up a perfect score, congratulations, but take note: your mind is remarkably attuned to the absurd and the ridiculous. Only such a mind can distinguish between the real and the fantastic among the cases that are increasingly popping up in the crusade against discrimination. Many complaints, as the quiz is intended to make clear, are more farfetched than the most bizarre spoof.

The reason is plain: Some of the farthest-out pilgrims of the struggle keep crossing over from the worthy to the frivolous, from the serious to the preposterous. Granted, the main thrust to assure fair play for all Americans goes on as plausibly as ever, its partisans earnest, their issues understandable, their purposes reasonable. Still, there must be some sensible bounds--no matter how elusive--to the claims that can be made in the name of nondiscrimination.

Consider the real-life episodes referred to in the quiz:

Item 1: This Chicago case reached--and was eventually dismissed by--the Illinois fair employment practices commission. The woman at first claimed she had been fired for giving a "birthday kiss" to a black male coworker, who was also sacked. But even after an investigation established that the kiss had led to something more, the woman still attributed her dismissal to discrimination. She argued that it would not have occurred had her partner been white. Questions: Is there not some limit to the personal habits and traits that an employer must tolerate? Would not this woman's employer be entitled to shield other employees who might be distracted--or even disturbed--by the spectacle of casual copulation in the office?

Item 2: The young man who was disappointed at the boutique lodged his complaint with the San Francisco human rights commission. Because the complainant failed to follow through, the perplexed commission did not decide officially whether a ladies' clothing store has the right to refuse a man permission to try on its merchandise on the premises. Questions: Can anyone in the real world take such an issue seriously? Should the drive against sexist discrimination lead to the negation of all social differentiations between the sexes? No was the answer hinted at in Portland, Ore., by the civil rights division of the state labor department; the division informed a worried bar owner that, well, yes, he was within his rights in refusing to allow his transvestite patrons the privilege of using the ladies' room.

Item 3: Any habitually anxious air traveler can imagine the concern of the airline that requested a Boston-based stewardess to quit draping herself in ceremonial voodoo jewelry while working. Still, her religion so attached her to the artifacts that she resisted the request with a complaint to the Massachusetts commission against discrimination. Unfortunately, the issue she presented was left muddled: the airline compromised, permitting her to wear her voodoo jewelry with half sho"wing and the other half concealed. Questions: Is there not some limit to an individual's right to insist on private taste in dress while working for an employer doing business with the public? Where was fair play most faulted in the case of a New York City woman who charged discrimination against a restaurant that fired her after she refused (in obedience to her Pentecostal church's dictates) to wear the required uniform slacks? In her dismissal? Or in her acceptance of a job whose necessities she could not possibly fulfill?

Such far-out cases are cropping up more and more frequently. In Dallas, a busty woman felt that an employer unfairly discriminated by discouraging her from wearing a revealing tank top while tolerating this garb on women employees not so well endowed. In North Carolina, two career Marines charged that the Marine Corps unconstitutionally discriminated when it discharged them for being chronically overweight. Surprisingly, as though a fighting force no longer retained the right to prescribe fitness standards, the Corps backed down and reinstated them. Many such cases clearly fall beyond the frontier of the ridiculous. It is amazing, if laughable, that a young woman in New York City charged sexist discrimination when the Yankees turned her down for a job--bat girl--that would have required her presence in the men's locker room. And where, if anywhere, are the merits of the argument advanced by the lefthanded postal clerk in Kentucky who charged that the U.S. Postal Service discriminated against southpaws by setting up its filing cases for the convenience of righthanded clerks?

In many of the offbeat cases, the implicit demand seems to be that all customary standards, tastes, proprieties and practices must yield to the whims and oddities of the individual. Still other cases seem to envision the abolition of all exclusivity, whether its purpose is malign or not. Exclusive societies of professionals (lawyers, doctors, engineers) exist for perfectly decent reasons. And certain groupings of artists for different decent aims. Yet, federal funds were briefly withheld from a Connecticut school on the ground that its boys' choir, by existing, encouraged sexist discrimination--and never mind the unique musical reasons why boys have always been assembled into singing groups. Government bureaucrats looked ridiculous in that instance because of their failure to admit a common-sense truth: some exclusivity--by race, sex, color and creed as well as by calling--arises not for bad but for good reasons. White Democratic Congressman Fortney H. Stark of California suffered a similar failure a couple of years ago when he applied for membership in the congressional Black Caucus. Questions: Does the congressional

Black Caucus have a right to exist? Would the congressional Black Caucus have ceased to exist if instead of refusing him, it had admitted a white member? The only sensible answer to both questions is yes. The notion of a black caucus with white members is silly on its face. So is the notion of a Jewish club that admits non-Jewish members. For this reason alone, Presidential Counsel Robert J. Lipshutz's resignation from Atlanta's formerly Jewish Standard Club, in protest against its restricted membership, seemed somewhat strange. He was demanding, in effect, that the club relinquish the essence of its nature.

Common sense and reality have both been affronted regularly in the anti-discrimination war. The feminist movement's drive to desex nouns and pronouns was definitively dramatized by the 1976 case of Ms. Ellen Cooperman, who unsuccessfully sought to change her legal name to Coo-perperson. But God only knows--if, indeed, He or She does--how much needless fear of words has been generated by the campaign to cleanse public language of slander, denigration and defamation. It has obviously reduced the use of contemptuous epithets, but it has also unnecessarily inflamed some tender sensibilities. Take the heartfelt claim that all Italians, and not merely an outlaw underground, tend to be stigmatized by the word Mafia. Should the question be: Can this term unintentionally offend someone? Or should not the questions be: Is there an organized underworld? Is it actually called the Mafia? If so, to call it something else is to lose touch with reality.

Much of all this silliness and confusion stems from simple blindness to what a polyglot society is really like. The U.S. is a patchwork of many subsocieties (based on race, ethnicity, religion, national origin, education, cultural taste, language, region). Every group naturally tends to exclude outsiders under certain circumstances. But this need not inevitably conflict with the achievement of a society that does not shut anybody off from any reasonable path or opportunity. The notion of an open pluralistic society becomes a contradiction in terms--unless there is some common-sense limit to both its openness and its pluralism. To define that limit is hard. Perhaps it can be fixed only case by case, as in conflicts between equally valid constitutional rights (free press v. fair trial, for instance). At least a grain of oldtime horse sense needs to be applied to the situation. Too many excursions into absurdity will achieve more than amusement; they could make the whole cause of fair play seem silly.

Frank Trippett

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