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Chapter 06 - Race and Color Discrimination
Chapter 6
Race and Color Discrimination
[Note to users: Users can click on the case icon to access the case brief included at
the end of the IM chapter.]
Chapter Objectives
The objectives of the chapter are for the students to learn what constitutes race discrimination
and to be able to recognize it when they see it so they can avoid potential liability. As with other
chapters in this section, it is extremely important to be able to not just know that one must not
discriminate on the basis of race, but also to be able to recognize race discrimination and remedy
it before liability attaches. Once students finish going through the chapter, the student should be
able to do this.
Learning Objectives
(Click on the icon following the learning objective to be linked to the location in the outline
where the chapter addresses that particular objective.)
After reading this chapter, the students should be able to:

1. Discuss and give details on the history of race discrimination and civil rights in the United
States.
2. Explain the relevance of the history of civil rights to present-day workplace race
discrimination issues.
3. Set forth the findings of several recent studies on race inequalities.
4. Identify several ways that race and color discrimination are manifested in the workplace.
5. Explain why national origin issues have recently been included under race discrimination
claims by the EEOC.
6. Describe ways in which an employer can avoid potential liability for race and color
discrimination.
Authors’ Note
6-1
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
It would be an injustice to the students to teach this subject matter as if it were simply a litany of
facts and rules. There is so much more and it will be of the utmost benefit to the students if
instructors can “mine” this and let them walk away with an incredible amount of information
about themselves and the world that will help them make justifiable and informed workplace
decisions regarding Title VII actions and other workplace matters.
Most students would have been born when race discrimination in employment was illegal. Many
of them would have come into consciousness during the past 8 years of the Bush administrations
when much of what they heard about employment discrimination was negative and framed
around the issue of affirmative action. As a result, they may have very negative ideas about the
issue. They will often think there really is no problem with race because they may have seen very
little of the obvious type, However, they would have heard tales of unqualified blacks and
women taking jobs from more qualified whites and for many of them this will frame what they
think they know about race discrimination.
It greatly facilitates learning to take some time to address this and to lay the groundwork for
what is to come. Students need to be made aware that though it is illegal to discriminate in
employment and has been for more than 40 years, there is still much of the issue remaining in
employment and society. Negative images from the media, news stories, and personal
experiences invariably find their way into the workplace and have a negative impact upon
women and minorities of all kinds.
Race is an issue that is fraught with all sorts of “baggage” which everyone brings to the table that
can impact what students learn about the issue. It is extremely important not to, on the one hand,
address this issue as if one is reciting math facts, but instead to deal with it head on and
acknowledge the presence of the issue in our society, and on the other, to make students
understand that it is inevitable that people have picked up “garbage” about this issue, from the
media, their parents, peers, etc.
People start out as empty garbage cans. There is no filter to keep out the racist, sexist or
otherwise exclusionary ideas that may come from their parents, peers, the media and other
sources long before they even understand that such ideas may be wrong. The point is not to own
all of that or try to defend oneself or try to argue that they are not racist or prejudiced, but rather,
to acknowledge that with the society, it is inevitable that they would pick up these things and
incorporate them into their lives. Acknowledging this is the first step to doing something about it
and for the sake of the employers, one must learn to recognize and avoid those things which may
result in liability.
Have students understand that it is not just the big things like calling those of other groups with
derogatory names, or saying obvious things like “we don’t hire blacks,” that gets most employers
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in trouble. It can instead be a compilation of many smaller things many people do, often without
even being aware of it, which, when analyzed and tallied, amount to a different experience for
those not in the “majority” group.
The tidbits in the opening of the chapter introduction are very telling. Discuss with them the
students and see what they think. Make sure to bring to their attention the 2004 Gallup poll that
found that 90 percent of whites under age 30 think blacks are now being treated fairly or
somewhat fairly compared to only 38 percent of blacks thinking so. At the same time, discuss the
research which shows managers are more likely to evaluate those of their race higher than those
of another race, and since most managers are white, how this can impact blacks.
Bring students’ attention to the difference between personal prejudice, which Title VII does not
prohibit, and racism, which institutionalizes that prejudice, which it does address.
Even though this can be a difficult topic to discuss, if done effectively, students see from
different perspective from then on and are much less likely to cause liability for their employer.
Given the historic political situation the students would likely be aware, instructor may even
want to use a discussion of Senator Barack Obama’s “A More Perfect Union” speech on race as
a starting point for discussion, since many of them will be aware of it or may have seen it. A
discussion of their understanding of what he spoke of may prove fruitful for the chapter.
The full written text:

http://www.huffingtonpost.com/2008/03/18/obama-race-speech-read-t_n_92077.html
The full 38 minute video:

http://www.youtube.com/watch?v=pWe7wTVbLUU
Detailed Chapter Outline
Scenarios—Points for Discussion
Scenario One: They are illegal. It is discrimination based on color, in violation of Title VII.
Scenario Two: The employee wins. It is race discrimination under Title VII for the employer to
treat the black, female employee differently from the other employees, particularly in a way
which has such an adverse effect upon her employment. Vaughn v. Edel, 918 F.2d 517 (5th Cir.
1990). This case is included because it so perfectly matches the ideas we hear expressed so often
in consulting sessions as well as the classroom.
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Scenario Three: Yes, the employee wins. Courts have actually held both way, but the more
conservative approach is that the policy has a disparate impact upon black males who have a
much higher tendency to suffer from pseudofolliculitis caused by shaving. Because of the
disparate impact, the no-beard policy should be supportable by a legally defensible business
necessity. Richardson v. Quik Trip Corp., 591 F. Supp. 1151 (S D Ia., Central Div. 1984)
I. Statutory Basis
It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color... or
(2) to limit, segregate, or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race,
color... [Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a).]
II. Surprised?
Learning Objective One: Discuss and give details on the history of race discrimination
and civil rights in the United States.
Learning Objective Two: Explain the relevance of the history of civil rights to present-
day workplace race discrimination issues.
Race is the first of the prohibited categories in Title VII, the main reason for passage of the law,
and it remains, even today, a factor in the lives of many employees.
Learning Objective Three: Set forth the findings of several recent studies on race
inequalities.
Race still matters more than many may realize. So much so that it might surprise one to discover
the following:
 Research showed that employers would rather hire a white man who had served time in
prison than a black man who had not.
 When researchers sent out identical résumés for jobs listed in the newspaper, with the only
difference being the names of the applicants, those with “ethnic” names like Jamal or
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Lakiesha received 50 percent fewer callbacks for jobs than the identical résumés with
traditionally white names like Megan or Brad.
 In addition to visual profiling, researchers have found linguistic profiling.
 A study by University of Georgia researchers published in the Journal of Vocational
Behavior in 2012 found that networking within an organization and having a mentor,
which are generally thought to promote career success, do not give African-American men
the same measurable benefits as whites.
 According to U.S. Census Bureau data, while women are paid 77 cents for every dollar
paid to men, on average, for African-American women, it is 70 cents for every dollar paid
to men, and only 64 cents for every dollar paid to white, non-Hispanic men.
 During oral arguments in the Lopez v. Gonzales 8 and Toledo-Flores v. United States 9
cases that could impact thousands of immigrants, U.S. Supreme Court Justice Antonin
Scalia made a reference to one of the parties in a case, a Mexican who had been deported
back to his country, as someone unlikely to keep from drinking tequila on the chance he
could return to the United States.
 In the 2004 elections in Alabama, voters voted to keep the Alabama constitution’s
language that says “separate schools shall be provided for white and colored children, and
no child of either race shall be permitted to attend a school of the other race.”
 Full-time paid intern hired over the phone to work at an Iowa cosmetics company as a
cosmetics formulator because she was in England at the time, arrived in Iowa, only to be
told by her supervisor that everyone would be “surprised” that she was black.
 At Charapp Ford South, a car dealership near Pittsburgh, two black employees who
complained about constant racial harassment in the workplace allegedly found a document
that suggested “ten ways to kill” African-Americans.
 A temp agency used code words to supply Jamestown Container Co. and Whiting Door
Mfg. Co. with the white male employees they requested, denying placements to minorities
and women.
 The president of a staffing services company allegedly told Carolyn Red Bear, a Native
American employee, many derogatory statements that had been made about her “ethnic”
appearance, alleging that she did not “fit in” with the white community and should seek
employment more consistent with the skills of Native Americans.
Unfortunately, there are many more items that could be added to this list. A 2008
USAToday/Gallup poll found that a majority of Americans say racism against blacks is
widespread, including 51 percent of whites, 59 percent of Hispanics, and a whopping 78 percent
of blacks. After the election of the first black U.S. president, the numbers went up somewhat, but
by the next year, they had gone back to pre- Obama levels.
One can see what a problem these findings would present in the workplace. Not only could
discrimination be occurring, but as a manager, one could possibly not realize it. Much of the race
6-5
discrimination now occurring in the workplace is not as overt as it was before Title VII but it is
still very much a factor in employment.
The more one sees the bigger picture, the less likely he or she is to be a part of unnecessary
claims of workplace race discrimination. The law has been in place for 50 years and race
discrimination claims are still very much a part of title VII. They have risen every decade since
the law was passed and still account for over one-third of the EEOC’s total claims filed.
III. Evolving Definitions of Race
Learning Objective Four: Identify several ways that race and color discrimination are
manifested in the workplace.
When someone says the word race chances are that most people will think of black or white. For
virtually the entire time Title VII has been in existence, race has been almost exclusively about
African-Americans and whites, with discrimination against other groups considered primarily
under the national origin category.
The term race, in the context of employment discrimination, is being used differently than it had
been. It is important that people preserve the history and background of the Civil Rights Act of
1964 so that the law can continue to be understood in its proper context; that is, the context of
slavery, Jim Crow, and the fight for civil rights (and the lingering effects of each) in which it
occurred. The expanded notion of race will not neglect either the important basis for the law that
birthed the legislation in the first place, or the present-day effects that continue to persist even as
other groups come into the United States and rise to become accepted as a part of the country
rather than “outsiders.” This is a factor that the Russell Sage/Harvard study on race discussed.
One should recognize that the willingness of other groups to exercise their rights under the law
by using the race category rather than, or in addition to, the national origin category is a trend
which is seen, noted and here reflected. The EEOC also has seen this trend and, in part because
of it, launched an initiative called E-RACE (Eradicating Racism and Colorism from
Employment) intended to address these changes. As part of their revised Compliance Manual,
issued in 2006, the EEOC outlined the differences between the categories of race, color, and
national origin. The EEOC noted that the Civil Rights Act did not define race but in light of
recent trends, the EEOC undertook to bring some understanding to the matter in a world in
which things had changed since passage of the Act.
6-6
Alonzo v. Chase Manhattan Bank, N.A
As a society, people now think of race under Title VII as a more inclusive concept. Researchers
refer to the idea that whites think everything is fair for everyone, so nothing need be done to
ensure equal opportunity anymore, as the “new racism.” Employers do not need to engage in
deliberate, intentional racial discrimination in order to violate the law and the law does not
require this in order to find liability.
Clearly much progress has been made in the area of race discrimination in the workplace since
Title VII was enacted. The extremely comprehensive, four-year, 1,400-page study of intentional
workplace discrimination between 1975 and 1999, released by Alfred and Ruth Blumrosen in
2002, found that workplace discrimination against African-Americans is still the worst of all
groups. However, minorities increased their participation in the labor force by 4.6 million
workers beyond the increase resulting from economic growth and increased their share of ‘better
jobs’ as officials, managers, professionals, technical, and sales workers.” The study showed that
15 percent of African-Americans experience intentional workplace discrimination.
Jones v. Robinson Property Group, L.P., d/b/a Horseshoe Casino & Hotel
It is a case in which one gets to see how racial discrimination can play out in the workplace.
IV. Background of Racial Discrimination in the United States
History and its present-day effects account for much of the race discrimination we see
manifested today. Africans arrived in this country in 1619, before the Mayflower. Their initial
experience was as free people who were contracted as indentured servants. After the first 40
years or so, this changed as the need for cheap labor grew with America’s rapid expansion, and
slavery came into existence. While a very small number of African- Americans were free,
slavery as an integral and defining part of American life lasted for well over 200 years, until after
the Civil War ended in 1865. With a slight pause (11 years) for Reconstruction after the Civil
War, the next 99 years saw Black Codes and Jim Crow laws legalize and codify racial
discrimination.
6-7
In many places, there were many more slaves than whites (South Carolina had an 80 percent
slave population), so absolute control was necessary in order to prevent slave uprisings, which
were a major concern for whites. This was done quite systematically and with the intention of
keeping the system of slavery in place forever. Each of the rules and regulations contained in the
Slave Codes, and later, after Reconstruction, in the Black Codes, was designed to do this.
This system was all-encompassing, omnipresent and systemic. Even something as seemingly
“objective” as medicine did not escape. For instance, “Drapetomania” was an actual “medical
condition” doctors ascribed to slaves who wanted to run away and be free. Clearly the control
was comprehensive, and minutely detailed to accomplish this purpose. It is important to
understand this so that one can recognize how insinuated into every aspect of life racism was in
this country, and why there were bound to be vestiges long after slavery ended.
When Reconstruction ended, about 11 years after the Civil War was over, the Slave Codes were
simply renamed “Black Codes” and used virtually as if slavery had never ended. The system,
adopted by either law or social custom all over the country, remained in place until the Civil
Rights Act of 1964, and in some places well into the 1970s, constantly reasserting the
institutionalized role of race in the United States.
Race governed every facet of life. In addition to the ways we have already set forth in earlier
chapters, blacks were routinely discriminated against by being forced to sit in the balconies of
movie theaters or made to attend on days different from those when whites attended. Some fairs
had “Negro days” on which African-Americans could attend, and some towns had “Negro days”
for African-Americans to shop.
Although they paid full bus fare, in the South, African-Americans had to sit in the back of the
bus. If whites wanted or needed blacks’ seats, African-Americans had to give up their seats even
though they were full-fare-paying passengers. African-Americans could not testify against
whites in court.
The simple act of registering to vote could cost an African-American his or her job, family,
home, or life. It was not until the Voting Rights Act of 1965 that African-Americans received
full voting rights in the United States. Breach of Jim Crow law or social policy by African-
Americans resulted in swift retribution, up to and including death—generally by lynching for
males—an event that was often attended by whole families of whites, including children, and
treated as a festive family outing, complete with picnic baskets.
In historical terms, this was not that long ago. Remember that the system officially ended only in
1964, and in many places it, or its effects, lingered on long after after—in some places, even
6-8
until today. For instance, in Atlanta, retiring black police officers suffered because of the police
department’s racial policy that lingered until the 1970s, which prevented black officers from
contributing to a whites-only pension fund. There are other examples of present-day vestiges:
 EEOC filed suit in September 2013 against a company in Minnesota that not only fired a
white employee who recommended that a black temporary employee be hired full-time and
given benefits, but rejected her suggestion by “punctuating it with racist language.”
 A North Carolina federal jury “acting as the conscience of this community,” awarded
$200,000 in compensatory and punitive damages to two black truck drivers who were
repeatedly subjected to “racist abuse” including supervisors and other employees referring
to them as the “N-word,” “monkey,” “boy,” “coon,” and bringing one of the black
employees a noose and saying “This is for you. Do you want to hang from the family
tree?”
 Twelve white firefighters were awarded 2.5 million after not getting promotions they were
scheduled for because the fire department illegally allowed promotional lists with their
names on them to expire so they could promote black firefighters instead.
 TSA officers in a behavioral detection program designed to spot terrorists at Boston’s
Logan International Airport, and managers of similar programs nationwide, were ordered
by Homeland Security to attend a special class on why racial profiling is not acceptable
and is not an effective way to spot terrorists after they were investigated for stopping more
blacks and Hispanics who they thought would have more outstanding warrants or be in
possession of drugs.
 A New Jersey landlord settled charges with the U.S. Department of Housing and Urban
Development (HUD) for violating the Fair Housing Act by refusing to show apartments or
return calls of tenants after learning they were African-American.
 Between 2000 and 2004, 16 major insurance cases were settled, covering about 14.8
million policies sold by 90 insurance companies between 1900 and the 1980s to African-
Americans who were charged more, as was the custom of the day, simply because they
were black.
 In 2006, the U.S. Supreme Court unanimously held that the term “boy” used by white
managers at an Alabama Tyson Foods plant to refer to black employees could, alone, be
used as evidence of workplace race discrimination. The term is one used in the slave and
Jim Crow era to refer to black men.
 In 2006, the Delaware Masons fraternal organization signed a compact to end 150-plus
years of racial separation. In 12 southern states, white Masons still do not officially
recognize black Masons as their brothers.
 In early 2007, the Virginia House of Delegates expressed “profound regret” for its role in
the slave trade and other injustices against African-Americans and Native Americans. Nine
members did not cast ballots. In 2001, the Virginia legislature had expressed “profound
regret” for its role in the discredited “science” of eugenics that led to the sterilization of
well over ,000 Virginians between 1924 and 1979 under the Racial Integrity Act and the
6-9
Sterilization Act, in the name of purifying the white race. Virginia’s apology was later
joined by apologies in Florida, Alabama, North Carolina, Maryland, and New Jersey. The
U.S. Congress is also considering such a proposal.
 In 2008—after years of refusing to do so, but after doing so for Native Americans,
Japanese detention camp detainees, and Hawaiians for the overthrow of their
government—the U.S. House of Representatives passed a resolution apologizing for
slavery, Jim Crow, and its present-day impact on blacks. The Senate passed a similar
resolution the next year.
For virtually their entire history in this country, African-Americans were dealt with as inferiors,
with societal laws and customs totally built around that approach. Then came the Civil Rights
Act of 1964, attempting to change this 300 1 -year’s history overnight. You might now
understand a bit better why we have been struggling with the issue ever since.
The struggle for civil rights, in part, helped some of those permitted to realize their full potential
and become the successful and productive members of society they longed to be. The Irish went
from being so reviled that store windows had signs saying “No Dogs, No Irish,” to having John
F. Kennedy become a revered first Irish and Catholic president of the United States. Other
groups, like Native Americans, Hispanics, and Asians were, for various reasons, castigated,
vilified, ostracized, marginalized, and discriminated against by the greater society. Asians being
locked out of full advancement in the workplace has been referred to as the “bamboo ceiling”
rather than the glass ceiling.
Lecture Note: It routinely comes up in class when discussing Jim Crow and segregation that
blacks still continue to segregate by having things like black TV channels and black pageants.
Students always say that if there are black colleges and TV channels, etc., why can’t there be
white ones? It is very enlightening for students to explore this issue with the professor. Students
often do not realize that HBCUs (historically black colleges and universities) were begun after
the Civil War because blacks generally could not attend white universities. While the HBCUs
were begun for blacks, they never excluded anyone and even today, anyone can attend. It’s
always interesting to ask how many students applied to predominantly black universities. Rarely
do any students raise their hands. They then realize that the only reason the institutions remain
predominantly black is because whites choose not to attend, though they certainly may. The
experience with thousands of students has been that this is generally news to them. They also do
not realize that the reason BET was created was because African Americans believed they were
not having media access as they should, so they created their own to showcase shows they
wished to see. Again, no one is excluded. Students who are not minorities tend not to be aware
that the “norm” is what they are used to, and that norm often excludes others for one reason or
another.
6-10
In addition, students often do not realize that many professional organizations such as the
National Bar Association, National Medical Association, National Nurses Association, National
Dentists Association, were begun as the black counterpart of the American Medical Association,
American Bar Association, etc., which did not allow black members. Again, these groups were
open to anyone, but whites rarely joined. The groups took on a life of their own and when
integration occurred after the Civil Rights movement, they did not disband because they had
their own histories, agendas and projects that were not always in sync with the white
organizations. Most blacks joined both organizations. Again, it is important for students to see
how total the segregation was and some of the ways the impact is still felt today.
It is also helpful for students to understand that the same goes for television. Blacks were either
excluded, shown in negative ways, or had little input into shows reflecting their viewing wishes,
thus the Black Entertainment Television (BET) channel. Experience and research bears out, that
while blacks often watch predominantly white shows, whites rarely watch predominantly black
shows, with the exception of perhaps, The Cosby Show. It might be instructive to ask how many
white students watch BET and why or why not.
These discussions help students to see that workplace discrimination is not an isolated event. It is
part of a much larger picture which plays out in every conceivable forum, often in very subtle
ways which impact us, but of which we are generally not aware. People take all of this in as part
of their narrative and operate in the world, including the workplace, with these ideas as part of
their decision making process.
V. Race: Putting It All Together
When race has been as ingrained in a culture as it has been in the United States, it is predictable
that it is taking a rather long while to rid the workplace of the vestiges of race discrimination.
The U.S. Department of Labor Glass Ceiling Studies in 1991 and 1995 of barriers to full
management participation in the workplace by women and minorities found that minorities had
made strides in entering the workplace, but a “glass ceiling” exists beyond which minorities
rarely progress. The study found that minorities plateau at a lower corporate level than women,
who plateau at a lower level than white males.
According to the studies, monitoring for equal access and opportunity was almost never
considered a corporate responsibility or a part of the planning and developmental programs and
policies of the employer, nor as part of participation with regard to senior management levels.
6-11
Most companies had inadequate records regarding equal employment opportunity and
affirmative action responsibilities in recruitment, employment, and developmental activities for
management level positions.
Such factors militate against serious consideration of full participation by all sectors of the work
population and prevent the employer from being presented in the best light should lawsuits arise.
If an employer analyzed and monitored workplace information based on the Glass Ceiling
considerations, much race discrimination could be discovered and addressed long before it
progressed to the litigation stage.
VI. General Considerations
Title VII was enacted primarily in response to discrimination against African-Americans in this
country, but the act applies equally to all. The McDonald v. Santa Fe Transportation case
demonstrated that racial discrimination may occur against whites also and is equally prohibited
under Title VII. It may seem strange to think that it took a U.S. Supreme Court case to determine
that Title VII protects whites as well as blacks, but keep in mind the history that lead to the
passage of the Civil Rights Act. Discrimination against whites was never contemplated since it
was not an issue.
It takes far more than alleging discrimination to win a case under Title VII. This can be done
directly, by presenting evidence that the employer did or said something racially negative, or
indirectly, by way of the disparate impact requirements. This is one of the reasons that employers
should not fear Title VII claims. Either there is a viable basis for discrimination or there is not. If
there is not, the employee’s alleging discrimination does not make it true and no liability will
attach to the employer. Of course, an employer still must use resources to counter the claim,
which is another reason why a “best practices” approach is always best.
VII. Recognizing Race Discrimination
Learning Objective Five: Explain why national origin issues have recently been
included under race discrimination claims by the EEOC.
Often, one of the most difficult things for a manager is recognizing race discrimination when it
presents itself. The latest EEOC statistics for FY 2013 indicated that race remains one of the
most frequent types of claim filed with the agency, with it being only second to retaliation
claims, and just ahead of gender. Many of these claims involve systemic race discrimination
affecting hundreds of employees.
6-12
Often employers are held liable for race discrimination because they treated employees of a
particular race differently without even realizing that they were building a case of race
discrimination for which they could ultimately be liable. Sometimes it is something seemingly
small or subtle, but given the stage we are playing on, with the history we presented to you, it
can be perceived as discriminatory.
Lecture Note: Instructors can discuss the much-ballyhooed situation the students are familiar
with where then Sen. Joseph (now vice president) Biden stated in January 2007 that his then-
2007 presidential opponent, Barack Obama, was the “first mainstream African American who is
articulate and bright and clean and a nice looking guy.” Though he said he did not mean to
offend, because of the history provided in this and other chapters, students should be able to
recognize why his statement would cause a stir, particularly given that the subset of people Biden
was speaking of, which was people running for president, who would normally fit those criteria
anyway. The implicit presumption is that most blacks are not articulate, clean, etc. According to
minority students this statement is heard in the workplace all the time, even today, without the
speaker having any idea of its negative impact. Vaughn v. Edel included in the text is another
very good example.
Vaughn v. Edel
The case demonstrates intent may be established by direct evidence of discrimination by an

employer even when the employer may discriminate for what it considers to be justifiable
reasons. In Vaughn, a manager told a supervisor not to have any confrontations with a black
female employee about her work after she asked a member of the legal staff if she thought a
conversation she had with her supervisor sounded discriminatory. Two years later when she was
terminated for poor performance, she sued and alleged race discrimination in that she was not
given proper feedback that would have allowed her to better her performance.
An employer who has not considered the issue of race may well develop and implement policies
that have a racially discriminatory impact without ever intending to do so. The Bradley v.
Pizzaco of Nebraska, Inc., d/b/a Domino’s Pizza “no-beard” case is a good example of this. In
Bradley, the employer had a “no-beard” policy requiring employees to be clean shaven. The
employee, a black pizza delivery driver, told the employer he could not shave without severe
discomfort. The employer told him he must shave, and when he did not, he was terminated. The
employee sued for race discrimination and won.
Bradley is also a good example of why disparate impact cases must be recognized if Congress’s
legislative intent of ridding the workplace of employment discrimination is to be at all
successful. It demonstrates just how important it is to simply be able to recognize race
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discrimination when one sees it. As a manager faced with an unfamiliar situation, his or her
favorite eight words should be, “Let me get back to you on that.” This informs the employee that
you have heard her or his concern and will take it seriously. It then gives you time to find out
what you need to know to make an informed decision.
Simply taking the time to treat the employee’s concern as legitimate (rather than merely
dismissing it because it was not something with which the manager was familiar) and trying to
seek alternatives would have made all the difference. As a manager, one should make sure to
consider all angles before making a decision. It is especially important to consider the realities of
those who belong to groups which one may not be familiar with.
Chandler v. Fast Lane, Inc.
In Chandler, the action was brought by a white manager who was trying not to discriminate
when her company wanted her to do so. One should be aware that this also is covered by Title
VII.
VIII. Racial Harassment
In addition to an employer being liable for race discrimination under Title VII, the employer also
can be liable for workplace racial harassment. To hold an employer liable for racial harassment,
the employee must show that the harassment was:
 Unwelcome
 Based on race
 So severe or pervasive that it altered the conditions of employment and created an abusive
environment
 There is a basis for imposing liability on the employer
The employer is responsible for such activity if the employer himself or herself is the one who
perpetrates the harassment, or if it is permitted in the workplace by the employer or supervisory
employees. For instance, in 2008, the EEOC announced a settlement with Lockheed Martin for
$2.5 million for claims that it allowed a black electrician to be “severely harassed,” including,
among other things, threatened with lynching and called the “n-word” while working on military
aircraft at various places he was assigned all over the country. One of the harassers was a
supervisor, and though the employer knew, no discipline was imposed and the harassment
continued unabated. This is the largest settlement the EEOC has ever obtained for a single
employee in a racial harassment case, and one of the largest for any single employee. Actions for
racial harassment, like those of race discrimination under Title VII, may be brought under the
same alternative statutes as race discrimination.
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In Daniels v. WorldCom Corp., the two black employees reported being sent racially charged e-
mails through their work computer. The court said that racial harassment has as its basis the
employer imposing on the harassed employee different terms or conditions of employment based
on race. The employee is required to work in an atmosphere in which severe and pervasive
harassing activity is directed at the employee because of the employee’s race or color. However,
the employer took prompt, corrective remedial action to address the situation, so the court found
no liability.
As Daniels demonstrates, the employer’s best approach to racial harassment is to maintain a

workplace in which such activity is not permitted or condoned in any way, to take all racial
harassment complaints seriously, and to take immediate corrective action. The case also
demonstrates how important it is for a manager to keep up with changes that result in new and
different ways to harass. In Daniels, the harassment was accomplished by e-mail, but because the
employer took immediate corrective action, liability was avoided.
In the Henderson v. Irving Materials, Inc., case, a black employee was subjected to a number of
incidents at work, including racial epithets, threats, greasing of his truck, dead mice placed in his
truck, and the buttons cut off his uniform, by two of his white co-workers. Several of the
incidents were witnessed by their supervisor. The court found that though some of the events, in
isolation, may not qualify as harassment, when taken in the total context of the employee’s
experience as the first black hired to work there and in the greater context of race in the country,
they constituted racial harassment.
IX. A Word about Color
Learning Objective Five: Explain why national origin issues have recently been
included under race discrimination claims by the EEOC.
Skin color has a long and painful history in the African-American culture, stretching back to a
time when lighter blacks were given jobs in the slave owner’s home, while darker blacks worked
the fields. This often resulted in better treatment for the lighter blacks and led to resentment by
darker ones. This was fueled by intentionally pitting them against each other to cause division
which meant less likelihood of slave uprisings. Later, after slavery ended, the division stuck and
“the paper bag test” was used as a basis for allowing entrée to everything from schools to social
organizations. If one’s skin was any darker than a brown paper bag, one was excluded. This was
carried on long past the enactment of Title VII and still exists in some quarters today, either
formally or informally.
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Lighter-toned Hispanics, East Asians, and Asians, among others, all have experienced serious
color issues within their cultures. While one may not think that he or she cares about color,
research indicates that people tend to feel more comfortable with those most like themselves, and
one of the ways this is manifested is through color discrimination.
Color is one of the five categories included in Title VII as a prohibited basis for discrimination.
In several cases, both the party alleging discrimination and the alleged perpetrator of the
discrimination have been black. Employers should not miss the possibility of this legal liability
by thinking there can be no discrimination since two people of the same race are involved.
If one thinks color doesn’t matter than he or she should think about whether it was a coincidence
that the first-ever black Miss America, in 1984, Vanessa Williams, was light brown, with green
eyes and long hair. As recently as 1984, America was not ready for Miss America to be a darker
brown with short, kinky natural hair. It didn’t appeal to the nation’s cultural sensibilities of
beauty. That is why African-Americans and other ethnic groups began, and still hold, their own
beauty pageants (e.g., “Miss Black America” pageant, etc.)
African-Americans were not allowed into the Miss America pageant until after the Civil Rights
Movement in the 1960s. It was not until 1945 that they even had someone Jewish, and it was a
very big deal when Bess Myerson won the crown. During the 2008 presidential election several
comments were made about candidate Barack Obama only getting as far as he did as an African-
American presidential candidate because his skin tone was lighter than that of many African-
Americans.
Lecture Note: Instructors can demonstrate that people tend to discriminate knowingly or
unknowingly based on color by asking the students to think about the image of a person who
comes to their mind when they are asked about African-American actresses. Chances are Halle
Berry or performers Beyoncé who both are light. The fact is there are other famous actresses and
entertainers. For instance, Whoopi Goldberg was the first black actress to win an Oscar since
1939, but chances are, that she wouldn’t have been the one that came to students’ mind. Also,
notice how different the students’ thoughts are when they think of black actors. Chances are,
they are more likely to think of a browner (and older) male. JayZ? Lawrence Fishburne? Denzel
Washington? This clearly shows that people do notice color, whether it registers consciously or
not.
Employees also can sue under the state or federal Constitution for a denial of equal protection if
they work for the government or under state tort laws for defamation, intentional infliction of
emotional distress, assault, or any other tort the facts support.
An employer who must remedy racial discrimination may not avoid doing so because of the
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possibility of a reverse discrimination suit by employees alleging they were adversely affected. If
an employer institutes a judicially imposed or voluntary affirmative action plan that can
withstand judicial scrutiny for the reasons set forth in the affirmative action chapter, the
employer will not be liable to employees for reverse discrimination.
X. Management Tips
Learning Objective Six: Describe ways in which an employer can avoid potential
liability for race and color discrimination.
Race discrimination can seem elusive. Many people tend to think it no longer exists, or that
others feel as neutral as we do about race. That is not necessarily so. Because a manager can be
unaware of the presence of race discrimination, he or she can miss it until litigation arises.
Therefore, be aware of what goes on in the workplace and “don’t miss the forest for the trees.”
The following tips may prove useful:
 Believe that race discrimination occurs and be willing to investigate it when it is alleged.
 Make sure that there is a top-down message that the workplace will not tolerate race
discrimination in any form.
 Don’t shy away from discussing race when the issue arises. Be open to learning and
sharing. There are many resources you can use, including the Internet and books on race.
 Provide a positive, nonthreatening, constructive forum for the discussion of racial issues.
Don’t let the only time a discussion of race arises be in the midst of an allegation of racial
discrimination.
Chapter-End Questions
1. A black firefighter alleges that each time he is transferred from one fire station to another, he
must take his bed with him, on orders of the fire chief. The chief defends on the basis that it
is a legitimate decision because white firefighters would not want to sleep in the same bed in
which a black firefighter slept. Is this illegal under Title VII? Explain. [Georgia newspaper
article.]
This is based on a true case in a southern Georgia fire department, reported in a local
newspaper in 1992 or so. It is clearly disparate treatment based on race, as the firefighter is
required to carry around his bed from place to place, while white firefighters are not required
to do so. Appropriate relief would likely be an injunction prohibiting further requirements of
this sort being imposed upon non-white firefighters.
2. A white college receptionist is fired when it is found that she told a black college applicant
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that the applications for admissions are distinguished by race by the notation of a small RH
in the corner of black applicants’ applications. “RH,” she says, is her supervisor’s term for
“raisin heads,” which he calls African-Americans. Is the employee entitled to reinstatement?
[Jet magazine article.]
It is most likely that the employee will be reinstated. This is a case in which the employee
was terminated for failure to comply with discriminatory treatment of applicants as a
condition of employment. This is something that would likely not have occurred had the
employee been black. In addition, there is the possibility of an action by the employee for
retaliation for rights protected by Title VII.
3. It is discovered that, at a health club, the owner has been putting a notation on the
application of black membership applicants that reads “DNWAM,” which means, “do not
want as member.” In addition, the black membership applicants are charged higher rates and
are much less likely to be financed as other nonblack applicants. Can the black applicants
bring a successful action under Title VII?
No, this is because Title VII deals only with discrimination in employment.
4. A black female employee is told that she cannot come to work with her hair in decorative
braids traditionally worn in Africa, and if she continues to do so, she will be terminated.
Does the employee have a claim under Title VII?
Whether or not the employee can have a claim under title VII depends on the type of
industry the black female is currently working for. This could be considered a violation of
the grooming code, set by the firm, and the employer is given much leeway to make
workplace rules regarding grooming. On the other hand, it can be interpreted as a grooming
matter with racial overtones, much like one will see grooming matters with gender overtones
in the next chapter.
5. Bennie’s Restaurant chain routinely hires Hispanics, but it only assigns them to the lower-
paying jobs as kitchen help, rather than as higher-paid servers, salad bar helpers or
managers. Bennie’s says it does not discriminate because it has many Hispanic employees.
If suit is brought by the Hispanic employees, who will likely win? [Based on Denny’s
restaurants.]
It is most likely that the employees will win. With little else other than the facts, it appears
that Bennie’s is discriminating in job assignments or promotions. It is no defense that
Bennie’s hires Hispanics if it does not treat them equitably once hired. This is based upon
Denny’s Restaurant’s troubles of the spring of 1993 which resulted in a settlement in excess
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of $48 million against Denny’s.
6. Five white and one black canine unit officers sued for race discrimination when the
operating procedures for their unit were drastically changed, they alleged, because the unit
was “too white.” Can the black officer bring suit even for race discrimination on these facts
even though he is not white? [Ginger v. District of Columbia, 477 F. Supp.2d 41 (D.D.C.
2007)]
Yes, the black officer can bring suit for race discrimination. All he has to do is allege he was
discriminated against in his association with the white officers.
7. Ken recruits applicants for several prominent companies. Often when the companies call for
Ken’s services, they strongly hint that they do not wish to hire Southeast Asians, so Ken
never places them with those companies. Is Ken liable for illegal discrimination?
Yes. Title VII covers not only employers, but also others who place employees in
employment such as employment agencies or other referral services. This situation is based
on a CBS television, “60 Minutes” segment and news reports.
8. José and César, both Hispanic, are carpenters employed by a contractor to help build an
office building in Maryland. While working, José and César discover that they are being
paid less than non-Hispanic employees. In addition, they allege a hostile work environment
and discriminatory terms and conditions of employment, including anti-Hispanic statements
by managers and employees, segregated eating areas, and an “English-only” rule imposed by
the contractor. José and César sue for race discrimination. Will they win? [Aleman v.
Chugach Support Services, 485 F.3d 206 (4th Cir. 2007).]
Yes. They are Hispanic, and courts will treat it as race or national origin discrimination.
9. Jill, the owner of a construction business, says her construction crew will not work if she
hires Hispanic crew members, so Jill does not do so. Is this a defense to a Title VII action?
No, this cannot be a defense to Title VII since it does not permit a customer or a fellow
employee’s preferences as a defense to discrimination.
10. Sam has worked at Allied for several years with no problems. Avril is transferred into Sam’s
unit. Sam immediately begins having a strong allergic reaction to the perfume Avril wears
each day. After having to take days off work because of his allergies, Sam asks Avril if she
can tone down her perfume. Avril does so for a few days, then resumes her usual amount.
Sam does not complain any further but is thinking of quitting because his allergies are so
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bad. He doesn’t want to go any further with Avril about it because Sam is white and Avril is
Asian, and Sam thinks it might lead to race discrimination liability for his employer. Is Sam
correct? [Based on student’s parent’s dilemma.]
No, Sam is not correct. Just because the perfumed co-worker is Asian does not mean that she
can make a connection between Sam complaining and her race/national origin. If the
employer can prove that any employee wearing such a heavy amount of perfume has been
treated the same way, there is little likelihood of liability.
Case Icons:
Alonzo v. Chase Manhattan Bank, NA, 25 F. Supp. 2d 455 (S.D.N.Y. 1998)
Issue: Whether the court has jurisdiction over the case when the employee, after the EEOC’s
determination and before bringing the case to court, amends the complaint to include race
discriminations. Initial claims by the employee were based on national origin discrimination.
Facts: A Hispanic employee sued his employer for national origin discrimination, alleging he
was the only Hispanic and was subjected to harassment. When filing his claim with EEOC, he
checked the box for national origin discrimination, but later amended it to also include race
discrimination. The court had to decide if this was permissible.
Decision: Due to Alonzo’s pronouncement that he was discriminated against because he is an

Hispanic, because it has not been established that the designation of being an Hispanic precludes
a claim of racial discrimination, and given the uncertainty among courts as to whether
“Hispanic” is better characterized as a race or a national origin, Alonzo’s claims of racial
discrimination are reasonably related to his claims of national origin discrimination as they fall
within the reasonable scope of EEOC investigation. Accordingly, the defendants’ motion for
judgment on the pleadings regarding the claims premised on racial discrimination was denied.
Case Questions:
1. What do you think of the court’s quote from the Budinsky case about classification of race
being stupid and inaccurate? Explain.
Students’ answer may vary. Some may say that the court’s judgment for the Budinsky case
does make sense. This is because the term race is used to categorize people into different
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groups, which is a form of segregation. However, many people are of the opinion that any
form of segregation is a form of discrimination in itself.
2. Do you think it matters whether someone’s category is called “race” vs. “ethnicity”?
Explain.
Students’ answer may vary. Yes, the terms race and ethnicity are used to identify one’s
category, which does matter. The term race is broader when compared to the term ethnicity
which varies from culture to culture. Race relates to a person’s physical appearance whereas
ethnicity refers to factors such as nationality, culture, language, and beliefs.
3. Do you agree with the court that the employee should not be penalized for checking the race
box? Explain.
Students’ answer may vary. Some may agree with the court’s decision. One should try to
focus on the bigger picture which is the employee is being discriminated against. Even the
statements from the court, in Budinsky v. Corning Glass Works, 425 F. Supp. 786 (W.D. Pa.
1977) case, conveys the message that the term “race” and “racial discrimination” raises
doubtful sociological validity as to be scientifically meaningless.
Click here to return to the reference to the above case in the chapter outline.
Jones v. Robinson Property Group, L.P., d/b/a Horseshoe Casino & Hotel, 427 F.3d 987 (5th
Cir. 2005)
Issue: Whether the manager’s decision of refusing to hire a qualified black poker dealer, because
card players do not want blacks to touch their cards, is illegal discrimination.
Facts: A better-than-average black poker dealer with a good deal of experience sued a casino for
refusing to hire him over an eight-year period, alleging it was only because of his race. The
human resources person testified that the manager said the white players would not want
someone black handling their cards.
Decision: Yes, this is illegal discrimination.
Case Questions:
1. Are you surprised that this is a 2005 case? Explain.
Students’ answer may vary. Most of the students might be surprised but the fact is
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discrimination can happen anywhere knowingly or unknowingly. A “glass ceiling” exists

beyond which minorities rarely progress. This is evident after taking a look at the different
surveys carried by different institutions and organizations.
2. Given the evidence, do you understand why the lower court would have found that no race
discrimination had taken place? Explain.
Students’ answer may vary. Use this question as a foundation for discussing how even
judges are not exempt from being blinded by their own racial narratives and experience.
Cases of discrimination do not get much clearer than this, yet the district court did not agree.
3. What do you think of the statements that management allegedly made? Do they seem like
appropriate bases for making workplace decisions? Explain.
Students’ answers will vary. Some may say that from a business perspective the employer
seems right as the number of players or the customers coming to the casino might reduce.
The employer should be aware that these people are protected under Title VII and can sue
them if they are discriminated against. These decisions made by the management might not
be appropriate as it might lead to violation of EEOC’s provisions and the employer might
end up in paying huge relief amounts as compensation.
Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990)
Issue: Whether the employer is racially discriminating when the employer doesn’t provide the
employee with appropriate evaluation feedback which could have prevented her from being laid
off. The employer’s decision not to do so was based on not wanting to have the employee file a
discrimination suit.
Facts: During a retrenchment, a black female was terminated for poor performance. She alleged
race discrimination due to which her employer intentionally did not to give her necessary
feedback about her performance that would have helped her perform better and perhaps avoid
dismissal.
Decision: The court upheld the employee’s claim. When an employer excludes black employees
from improving their efficiency, it subverts the “broad overriding interest” of Title VII—
“efficient and trusty workmanship assured through fair and racially neutral employment and
personnel decisions.” Texaco has never stated any reason, other than that Vaughn was black for
treating her as it did. Had Texaco treated Vaughn in a color-blind manner from 1985-1987,
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Vaughn may have been fired by April 1987 for unsatisfactory work; on the other hand, she might
have sufficiently improved her performance so as not to be one of the two lowest ranked
employees, thereby avoiding termination in April 1987.
Because Texaco’s behavior was race-motivated, Texaco had violated Title VII. Texaco limited
or classified Vaughn in a way which would either “tend to deprive [her] of employment
opportunities or otherwise adversely affect [her] status as an employee” in violation of the law.
Case Questions:
1. Do you agree with the court’s decision? Why or why not?
Students’ answers will vary. Some may say that the court’s decision is fair. Although
Vaughn’s race may not have directly motivated the 1987 decision to fire her, race did play a
part in Vaughn’s employment relationship with Texaco from 1985-1987. Texaco’s treatment
of Vaughn was not color-blind during that period. By neither criticizing Vaughn, when her
work was unsatisfactory, nor counseling her how to improve, Texaco treated Vaughn
differently than it did its other contract analysts because she was black. As a result, Texaco
did not offer Vaughn the same opportunity, to improve her performance and perhaps her
relative ranking, as it did with its white employees. One of those employees was placed on
an improvement program. Others received informal counseling. The evidence indicates that
Vaughn had the ability to improve. As Texaco acknowledges, she was once its highest
ranked contract analyst.
2. How would you have handled this matter if you were the manager?
Students’ answer may vary. As a manager one should provide the same opportunity to
Vaughn as the one provided to others (white employees). Providing proper feedback about
the reduced productivity would be of great help to Vaughn. Managers can avoid racially
biased statements that might offend the employees.
3. What do you think of Keller’s remarks about Vaughn becoming the “black matriarch” of
Texaco; “meeting behind closed doors,” and “excessive meetings with predominantly
blacks?” What does it signify to you? What attitudes might it reflect that may be
inappropriate in the workplace? What concern, if any, might be appropriate?
Students’ answer may vary. The statements made by Keller clearly indicate that he is being
racially biased. If the meetings, as claimed by Keller, affect Vaughn’s productivity then
there should have been a better approach when putting forth the issue in front of her. This
can be done through some counselling that would give a clue to Vaughn about her reduced
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productivity.
Lecture Note: Edel is an excellent case to demonstrate how personal narratives can find their
way into the workplace and create problems from an unwitting manager or supervisor. Do
not miss the opportunity to discuss with students the significance of the items about Vaughn
in the memo and how they reflect racial attitudes. If Vaughn’s performance was simply not
up to par, that, alone, should have been enough to make the workplace decisions about her.
Instead, race was brought into the picture by the supervisor mentioning that she was meeting
primarily with blacks, doing so behind closed doors (implying that they were up to no good
or that it would be different if she were meeting with whites or the door was open—implicit
racial assumptions on his part) and was becoming the “black matriarch” of Texaco, whatever
that meant. If Vaughn was not performing because she was spending too much time dealing
with other employees on non-work related issues, race would have nothing to do with that
and letting her go would have been justified. However, once race was brought into the
equation and reflected that the supervisor was somehow using it to color the picture it
changed the picture and violated the law.
Chandler v. Fast Lane, Inc., 868 F. Supp. 1138 (E.D. Ark., W. Div. 1994)
Issue: Whether a white employee has a cause of action for constructive dismissal under Title VII
if she felt she was forced to leave her job when the employer would not allow her to hire and
promote African-Americans.
Facts: The employer had a policy of discriminating against African-Americans in hiring and
promotion. The white plaintiff alleged that the employer thwarted her efforts to hire and promote
African-Americans and as a result, her employment became so intolerable that she was forced to
resign. The employer alleged that the white employee had no standing to sue under Title VII
since its practices were targeted only at African-American.
Decision: The white employee has a cause of action for race discrimination under Title VII. The
“fail or refuse to hire” provision of Title VII which the employer concentrates on misperceives
the unlawful employment practice here. Plaintiff does not argue that she was the target of the
employer’s policies, but rather that the employer’s policy violated her fundamental right to
associate with African-Americans and as a consequence, the employer committed a separate
violation by engaging in an unlawful employment practice that “otherwise discriminate[d]
against an individual,” namely Chandler. The court recognized that the claim was somewhat
novel, but believed that since a white person’s right to associate with blacks is protected by
section 1981, an employer’s implementation of an employment practice that impinges upon this
6-24
right is actionable under Title VII. Also, Chandler’s allegations are sufficient to establish a claim
under the Title VII provision making it unlawful to discriminate against any employee because
the employee opposed any practice unlawful under Title VII. In addition, forcing Chandler to
carry out the unlawful practices would cause an adverse employment action to be visited upon
her and this would cause her to work in an abusive or hostile environment in violation of Title
VII.
Case Questions:
1. What do you think of the employer’s argument that since its policies discriminated against
blacks, the white employee should not be able to bring a suit for discrimination? Explain.
Students’ answer may vary. Chandler’s allegations are sufficient to establish a Title VII
claim under a separate provision of the statute. The relevant provision of Title VII is found
in 42 U.S.C.A. § 2000e-3(a), which provides in pertinent part: It shall be an unlawful
employment practice for an employer to discriminate against any of his employees...
because [s]he has opposed any practice made an unlawful employment practice by [Title
VII]. In order to establish a prima facie case under the “opposition” clause of § 2000e-3(a),
an employee must show that:
 She was engaged in an opposition activity protected under Title VII
 She was a victim of adverse employment action
 A causal nexus exists between these two events
Chandler’s allegations are clearly sufficient to meet the first requirement of a § 2000e-3(a)
claim.
2. Do you understand the court’s reasoning that the white employee was being discriminated
against by not being able to hire and promote black employees? Explain.
Students’ answer may vary. Chandler does not claim that she was a target of employer’s
allegedly anti–African-American employment practices. Rather, Chandler argues that
employer’s insistence that she enforce these practices violated her fundamental right to
associate with African-Americans, and as a consequence employer committed a separate
violation by engaging in an unlawful employment practice that “otherwise discriminate[d]
against an individual,” namely Chandler.
3. What reason can you think of as to why the employer had the policy of not hiring or
promoting blacks? Do you think it makes good economic sense? (Consider all facets of
economics, including the possibility of litigation over the policies.)
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The case at hand shows that the vestiges of a 346-year system still results in discrimination.
It is about the past only in the sense that what happened in the past has present-day vestiges.
Student answers may vary. However, students should address the points mentioned above.
6-26
Another random document with
no related content on Scribd:
which they granted us leave to send from it, proved them more
ignorant than kittens of America’s liveliest idiosyncrasies.
In the United States an impression prevails that the annals of Asia
and of Europe are too long and too complicated for our
consideration. Every now and then some educator, or some politician
who controls educators, makes the “practical” suggestion that no
history prior to the American Revolution shall be taught in the public
schools. Every now and then some able financier affirms that he
would not give a fig for any history, and marshals the figures of his
income to prove its uselessness.
Yet our vast heterogeneous population is forever providing
problems which call for an historical solution; and our foreign
relations would be clarified by a greater accuracy of knowledge. To
the ignorance of the average Congressman and of the average
Senator must be traced their most conspicuous blunders. Back of
every man lies the story of his race. The Negro is more than a voter.
He has a history which may be ascertained without undue effort.
Haiti, San Domingo, Liberia, all have their tales to tell. The Irishman
is more than a voter. He has a long, interesting and instructive
history. It pays us to be well informed about these things. “The
passionate cry of ignorance for power” rises in our ears like the
death-knell of civilization. Down through the ages it has sounded,
now covetous and threatening, now irrepressible and triumphant. We
know what every one of its conquests has cost the human race; yet
we are content to rest our security upon oratorical platitudes and
generalities, upon the dim chance of a man being reborn in the
sacrament of citizenship.
In addition to the things that it is useful to know, there are things
that it is pleasant to know, and pleasure is a very important by-
product of education. It has been too long the fashion to deny, or at
least to decry, this species of enjoyment. “He that increaseth
knowledge increaseth sorrow,” says Ecclesiastes; and Sir Thomas
Browne musically bewails the dark realities with which “the
unhappiness of our knowledge too nearly acquainteth us.” But it was
probably the things he did, rather than the things he knew, which
soured the taste of life in the Hebrew’s mouth; and as for Sir Thomas
Browne, no man ever derived a more lasting satisfaction from
scholarship. His erudition, like his religion, was pure profit. His
temperament saved him from the loudness of controversy. His life
was rich within.
This mental ease is not so much an essential of education as the
reward of education. It makes smooth the reader’s path; it involves
the capacity to think, and to take delight in thinking; it is the keynote
of subtle and animated talk. It presupposes a somewhat varied list of
acquirements; but it has no official catalogue, and no market value. It
emphatically does not consist in knowing inventories of things, useful
or otherwise; still less in imparting this knowledge to the world.
Macaulay, Croker, and Lord Brougham were men who knew things
on a somewhat grand scale, and imparted them with impressive
accuracy; yet they were the blight rather than the spur of
conversation. Even the “more cultivated portion of the ignorant,” to
borrow a phrase of Stevenson’s, is hostile to lectures, unless the
lecturer has the guarantee of a platform, and his audience sits before
him in serried and somnolent rows.
The decline and fall of the classics has not been unattended by
controversy. No other educational system was ever so valiantly and
nobly defended. For no other have so many masterly arguments
been marshalled in vain. There was a pride and a splendour in the
long years’ study of Greek. It indicated in England that the nation
had reached a height which permitted her this costly inutility, this
supreme intellectual indulgence. Greek was an adornment to the
minds of her men, as jewels were an adornment to the bodies of her
women. No practical purpose was involved. Sir Walter Scott put the
case with his usual simplicity and directness in a letter to his second
son, Charles, who had little aptitude for study: “A knowledge of the
classical languages has been fixed upon, not without good reason,
as the mark of a well-educated young man; and though people may
scramble into distinction without it, it is always with difficulty, just like
climbing over a wall instead of giving your ticket at the door.”
In the United States we have never been kindly disposed towards
extravagance of this order. During the years of our comparative
poverty, when few citizens aspired to more than a competence, there
was still money enough for Latin, and now and then for Greek. There
was still a race of men with slender incomes and wide acquirements,
to whom scholarship was a dearly bought but indestructible delight.
Now that we have all the money there is, it is universally understood
that Americans cannot afford to spend any of it on the study of “the
best that has been known and thought in the world.”
Against this practical decision no argument avails. Burke’s plea for
the severity of the foundation upon which rest the principles of taste
carries little weight, because our standard of taste is genial rather
than severe. The influence of Latinity upon English literature
concerns us even less, because prose and verse are emancipated
from the splendid shackles they wore with such composure. But the
mere reader, who is not an educational economist, asks himself now
and then in what fashion Milton and Dryden would have written, if
vocational training had supplanted the classics in their day. And to
come nearer to our time, and closer to our modern and moderate
appreciations, how would the “Elegy Written in a Country
Churchyard,” and the lines “On the Death of a Favourite Cat” have
been composed, had Gray not spent all his life in the serene
company of the Latins?
It was easy to define the requirements of an educated man in the
year 1738, when Gray, a bad mathematician and an admirable
classicist, left Cambridge. It is uncommonly difficult to define them
to-day. Dr. Goodnow, speaking a few years ago to the graduating
class of Johns Hopkins University, summed up collegiate as well as
professional education as the acquisition of the capacity to do work
of a specific character. “Knowledge can come only as the result of
experience. What is learned in any other way seldom has such
reality as to make it an actual part of our lives.”
A doctor cannot afford to depend too freely on experience,
valuable though it may be, because the high prices it asks are paid
by his patients. But so far as professional training goes, Dr.
Goodnow stood on firm ground. All it undertakes to do is to enable
students to work along chosen lines—to turn them into doctors,
lawyers, priests, mining engineers, analytical chemists, expert
accountants. They may or may not be educated men in the liberal
sense of the word. They may or may not understand allusions which
are current in the conversation of educated people. Such
conversation is far from encyclopædic; but it is interwoven with
knowledge, and rich in agreeable disclosures. An adroit participant
can avoid obvious pitfalls; but it is not in dodging issues and
concealing deficits that the pleasures of companionship lie. I once
heard a sparkling and animated lady ask Mr. Henry James (who
abhorred being questioned) if he did not think American women
talked better than English women. “Yes,” said the great novelist
gently, “they are more ready and much more brilliant. They rise to
every suggestion. But”—as if moved by some strain of recollection
—“English women so often know what they are talking about.”
Vocational training and vocational guidance are a little like
intensive farming. They are obvious measures for obvious results;
they economize effort; they keep their goal in view. If they “pander to
cabbages,” they produce as many and as fine cabbages as the soil
they till can yield. Their exponents are most convincing when they
are least imaginative. The Dean of Harvard’s Graduate School of
Business Administration says bluntly that it is hard for a young man
to see any good in a college education, when he finds he has
nothing to offer which business men want.
This is an intelligible point of view. It shows, as I have said, that
the country does not feel itself rich enough for intellectual luxuries.
But when I see it asserted that vocational training is necessary for
the safety of Democracy (the lusty nursling which we persist in
feeding from the bottle), I feel that I am asked to credit an absurdity.
When the reason given for this dependence is the altruism of labour,
—“In a democracy the activity of the people is directed towards the
good of the whole number,”—I know that common sense has been
violated by an assertion which no one is expected to take seriously.
A life-career course may be established in every college in the land,
and students carefully guarded from the inroads of distracting and
unremunerative knowledge; but this praiseworthy thrift will not be
practised in the interests of the public. The mechanical education,
against which Mr. Lowell has protested sharply, is preëminently
selfish. Its impelling motive is not “going over,” but getting on.
“It takes a much better quality of mind for self-education than for
education in the ordinary sense,” says Mrs. Gerould; and no one will
dispute this truth. Franklin had two years of schooling, and they were
over and done with before he was twelve. His “cultural opportunities”
were richer than those enjoyed by Mr. Gompers, and he had a
consuming passion for knowledge. Vocational training was a simple
thing in his day; but he glimpsed its possibilities, and fitted it into
place. He would have made an admirable “vocational counsellor” in
the college he founded, had his counsels not been needed on
weightier matters, and in wider spheres. As for industrial education,
those vast efficiency courses given by leading manufacturers to their
employees, which embrace an astonishing variety of marketable
attainments, they would have seemed to him like the realization of a
dream—a dream of diffused light and general intelligence.
We stand to-day on an educational no man’s land, exposed to
double fires, and uncertain which way to turn for safety. The
elimination of Greek from the college curriculum blurred the high
light, the supreme distinction, of scholarship. The elimination of Latin
as an essential study leaves us without any educational standard
save a correct knowledge of English, a partial knowledge of modern
languages, and some acquaintance, never clearly defined, with
precise academic studies. The scientist discards many of these
studies as not being germane to his subject. The professional
student deals with them as charily as possible. The future financier
fears to embarrass his mind with things he does not need to know.
Yet back of every field of labour lies the story of the labourer, and
back of every chapter in the history of civilization lie the chapters that
elucidate it. “Wisdom,” says Santayana, “is the funded experience
which mankind has gathered by living.” Education gives to a student
that fraction of knowledge which sometimes leads to understanding
and a clean-cut basis of opinions. The process is engrossing, and, to
certain minds, agreeable and consolatory. Man contemplates his
fellow man with varied emotions, but never with unconcern. “The
world,” observed Bagehot tersely, “has a vested interest in itself.”
The American Laughs
It was the opinion of Thomas Love Peacock—who knew whereof
he spoke—that “no man should ask another why he laughs, or at
what, seeing that he does not always know, and that, if he does, he
is not a responsible agent.... Reason is in no way essential to mirth.”
This being so, why should human beings, individually and
collectively, be so contemptuous of one another’s humour? To be
puzzled by it is natural enough. There is nothing in the world so
incomprehensible as the joke we do not see. But to be scornful or
angry, to say with Steele that we can judge a man’s temper by the
things he laughs at, is, in a measure, unreasonable. A man laughs
as he loves, moved by secret springs that do not affect his
neighbour. Yet no sooner did America begin to breed humorists of
her own than the first thing these gentlemen did was to cast doubts
upon British humour. Even a cultivated laugher like Mr. Charles
Dudley Warner suffered himself to become acrimonious on this
subject; whereupon an English critic retaliated by saying that if Mr.
Warner considered Knickerbocker’s “New York” to be the equal of
“Gulliver’s Travels,” and that if Mr. Lowell really thought Mr. N. P.
Willis “witty,” then there was no international standard of satire or of
wit. The chances are that Mr. Lowell did not think Mr. Willis witty at
all. He used the word in a friendly and unreflecting moment, not
expecting a derisive echo from the other side of the sea.
And now Mr. Chesterton has protested in the “Illustrated London
News” against the vogue of the American joke in England. He says it
does not convey its point because the conditions which give it birth
are not understood, and the side-light it throws fails to illuminate a
continent. One must be familiar with the intimacies of American life
to enjoy their humorous aspect.
Precisely the same criticism was offered when Artemus Ward
lectured in London more than a half-century ago. The humour of this
once famous joker has become a disputable point. It is safe to say
that anything less amusing than the passage read by Lincoln to his
Cabinet in Mr. Drinkwater’s play could not be found in the literature
of any land. It cast a needless gloom over the scene, and aroused
our sympathy for the officials who had to listen to it. But the
American jest, like the Greek epic, should be spoken, not read; and it
is claimed that when Artemus Ward drawled out his absurdities,
which, like the Greek epic, were always subject to change, these
absurdities were funny. Mr. Leacock has politely assured us that
London was “puzzled and enraptured with the very mystery of the
humour”; but Mr. Leacock, being at that time three years old, was not
there to discern this for himself. Dr. S. Weir Mitchell was there on the
opening night, November 13, 1866, and found the puzzle and the
mystery to be far in advance of the rapture. The description he was
wont to give of this unique entertainment (a “Panorama,” and a
lecture on the Mormons), of the depressing, unventilated Egyptian
Hall in which it was given, of the wild extravagances of the speaker,
which grew wilder and wilder as the audience grew more and more
bewildered, was funny enough, Heaven knows, but the essence of
the fun lay in failure.
Americans, sixty years ago, were brought up on polygamous jests.
The Mormons were our neighbours, and could be always relied upon
to furnish a scandal, a thrill, or a joke. When they mended their
ways, and ceased to be reprehensible or amusing, the comic papers
were compelled to fall back on Solomon, with whose marital
experiences they have regaled us ever since. But to British eyes,
Brigham Young was an unfamiliar figure; and to British minds,
Solomon has always been distinguished for other things than wives.
Therefore Artemus Ward’s casual drolleries presupposed a
humorous background which did not exist. A chance allusion to a
young friend in Salt Lake City who had run away with a boarding
school was received in stupefied silence. Then suddenly a woman’s
smothered giggle showed that light had dawned on one receptive
brain. Then a few belated laughs broke out in various parts of the
hall, as the idea travelled slowly along the thought currents of the
audience, and the speaker went languidly on to the next
unrecognizable pleasantry.
The criticism passed upon Americans to-day is that they laugh
often and without discrimination. This is what the English say of us,
and this is what some Americans have said of the English. Henry
James complained bitterly that London play-goers laughed
unseasonably at serious plays. I wonder if they received Ervine’s
“John Ferguson” in this fashion, as did American play-goers. That a
tragedy harsh and unrelenting, that human pain, unbearable
because unmerited, should furnish food for mirth may be
comprehensible to the psychologist who claims to have a clue to
every emotion; but to the ordinary mortal it is simply dumbfounding.
People laughed at Molnar’s “Liliom” out of sheer nervousness,
because they could not understand it. And “Liliom” had its comedy
side. But nobody could have helped understanding “John Ferguson,”
and there was no relief from its horror, its pitifulness, its sombre
surrender to the irony of fate. Yet ripples of laughter ran through the
house; and the actress who played Hannah Ferguson confessed that
this laughter had in the beginning completely unnerved her, but that
she had steeled herself to meet and to ignore it.
It was said that British audiences were guilty of laughing at “Hedda
Gabler,” perhaps in sheer desperate impatience at the
unreasonableness of human nature as unfolded in that despairing
drama. They should have been forgiven and congratulated, and so
should the American audiences who were reproached for laughing at
“Mary Rose.” The charm, the delicacy, the tragic sense of an
unknown and arbitrary power with which Barrie invested his play
were lost in the hands of incapable players, while its native dullness
gained force and substance from their presentation. A lengthy
dialogue on a pitch-black stage between an invisible soldier and an
inarticulate ghost was neither enlivening nor terrifying. It would have
been as hard to laugh as to shudder in the face of such tedious
loquacity.
We see it often asserted that Continental play-goers are incapable
of the gross stupidities ascribed to English and Americans, that they
dilate with correct emotions at correct moments, that they laugh,
weep, tremble, and even faint in perfect accord with the situations of
the drama they are witnessing. When Maeterlinck’s “Intruder” was
played in Paris, women fainted; when it was played in Philadelphia,
they tittered. Perhaps the quality of the acting may account for these
varying receptions. A tense situation, imperfectly presented,
degenerates swiftly into farce—into very bad farce, too, as Swift said
of the vulgar malignities of fate.
The Dublin players brought to this country a brand of humour and
pathos with which we were unfamiliar. Irish comedy, as we knew it,
was of the Dion Boucicault type, a pure product of stageland, and
unrelated to any practical experiences of life. Here, on the contrary,
was something indigenous to Ireland, and therefore strange to us.
My first experience was at the opening night of Ervine’s “Mixed
Marriage,” in New York. An audience, exclusively Semitic (so far as I
could judge by looking at it), listened in patient bewilderment to the
theological bickerings of Catholics and Protestants in Belfast. I sat in
a box with Lady Gregory who was visibly disturbed by the slowness
of the house at the uptake, and unaware that what was so familiar
and vital to her was a matter of the purest unconcern to that
particular group of Americans. The only thing that roused them from
their apathy was the sudden rage with which, in the third act, Tom
Rainey shouted at his father: “Ye’re an ould fool, that’s what ye are; a
damned ould fool!” At these reprehensible words a gust of laughter
swept the theatre, destroying the situation on the stage, but shaking
the audience back to life and animation. It was seemingly—though I
should be sorry to think it—the touch of nature which makes the
whole world kin.
When that mad medley of fun and fancy, of grossness and
delicacy, “The Playboy of the Western World,” was put on the
American stage, men laughed—generally at the wrong time—out of
the hopeless confusion of their minds. The “Playboy” was admittedly
an enigma. The night I saw it, the audience, under the impression
that it was anti-Irish, or anti-Catholic, or anti-moral, or anti-
something, they were not sure what, hurled denunciations and one
missile—which looked strangely like a piece of pie—at the actors. It
was a disgraceful scene, but not without its humorous side; for when
the riotous interruptions had subsided, an elderly man arose, and,
with the manner of an invited speaker at a public dinner, began,
“From time immemorial”—But the house had grown tired of
disturbances, and howled him down. He waited for silence, and then
in the same composed and leisurely manner began again, “From
time immemorial”—At this point one of the policemen who had been
restoring order led him gently but forcibly out of the theatre; the play
was resumed; and what it was that had happened from time
immemorial we were destined never to know.
A source of superlative merriment in the United States is the two-
reel comic of our motion-picture halls. Countless thousands of
Americans look at it, and presumably laugh at it, every twenty-four
hours. It is not unlike an amplified and diversified Punch and Judy
show, depending on incessant action and plenty of hard knocks.
Hazlitt says that bangs and blows which we know do not hurt
provoke legitimate laughter; and, until we see a funny film, we have
no conception of the amount of business which can be constructed
out of anything so simple as men hitting one another. Producers of
these comics have taken the public into their confidence, and have
assured us that their work is the hardest in the motion-picture
industry; that the slugging policeman is trained for weary weeks to
slug divertingly, and that every tumble has to be practised with
sickening monotony before it acquires its purely accidental character.
As for accessories—well, it takes more time and trouble to make a
mouse run up a woman’s skirt at the right moment, or a greyhound
carry off a dozen crullers on its tail, than it does to turn out a whole
sentimental scenario, grey-haired mother, high-minded, pure-hearted
convict son, lumber-camp virtue, town vice, and innocent childhood
complete. Whether or not the time and trouble are well spent
depends on the amount of money which that mouse and those
crullers eventually wring from an appreciative and laughter-loving
public.
The dearth of humorous situations—at no time inexhaustible—has
compelled the two-reel comic to depend on such substitutes as
speed, violence, and a succession of well-nigh inconceivable
mishaps. A man acting in one cannot open a door, cross a street, or
sit down to dinner without coming to grief. Even the animals—dogs,
donkeys and pigs—are subject to catastrophes that must wreck their
confidence in life. Fatness, besides being funny, is, under these
circumstances, a great protection. The human body, swathed in rolls
of cotton-wadding, is safe from contusions and broken bones. When
an immensely stout lady sinks into an armchair, only to be
precipitated through a trap-door, and shot down a slide into a pond,
we feel she has earned her pay. But after she has been dropped
from a speeding motor, caught and lifted high in air by a balloon
anchor, let down to earth with a parachute, picked up by an elephant,
and carried through the streets at the head of a circus parade, we
begin to understand the arduousness of art. Only the producers of
comic “movies” know what “One crowded hour of glorious life” can
be made to hold.
Laughter has been over-praised and over-analyzed, as well as
unreasonably denounced. We do not think much about its
determining causes—why should we?—until the contradictory
definitions of philosophers, psychologists and men of letters compel
us to recognize its inscrutable quality. Plato laid down the principle
that our pleasure in the ludicrous originates in the sight of another’s
misfortune. Its motive power is malice. Hobbes stoutly affirmed that
laughter is not primarily malicious, but vainglorious. It is the rough,
spontaneous assertion of our own eminence. “We laugh from
strength, and we laugh at weakness.” Hazlitt saw a lurking cruelty in
the amusement of civilized men who have gaged the folly and
frivolity of their kind. Bergson, who evidently does not frequent
motion-picture halls, says that the comic makes its appeal to “the
intelligence pure and simple.” He raises laughter to the dignity of a
“social gesture” and a corrective. We put our affections out of court,
and impose silence upon our pity before we laugh; but this is only
because the corrective would fail to correct if it bore the stamp of
sympathy and kindness. Leacock, who deals in comics, is sure of but
one thing, that all humour is anti-social; and Stevenson ascribes our
indestructible spirit of mirth to “the unplumbed childishness of man’s
imagination.”
The illustrations given us by these eminent specialists are as
unconvincing as the definitions they vouchsafe, and the rules they
lay down for our guidance. Whenever we are told that a situation or a
jest offers legitimate food for laughter, we cease to have any
disposition to laugh. Just as we are often moved to merriment for no
other reason than that the occasion calls for seriousness, so we are
correspondingly serious when invited too freely to be amused. An
entertainment which promises to be funny is handicapped from the
start. It has to plough deep into men’s risibilities before it can raise its
crop of laughter. I have been told that when Forepaugh first fired a
man out of a cannon, the audience laughed convulsively; not
because it found anything ludicrous in the performance, but because
it had been startled out of its composure, and relieved from a
gasping sense of fear.
Sidney Smith insisted that the overturning of a dinner-table which
had been set for dinner was a laughable incident. Yet he was a
married man, and must have known that such a catastrophe (which
seems to us to belong strictly to the motion-picture field) could not
have been regarded by Mrs. Smith, or by any other hostess, as
amusing. Boswell tells us that Dr. Johnson was so infinitely diverted
by hearing that an English gentleman had left his estate to his three
sisters that he laughed until he was exhausted, and had to hold on to
a post (he was walking home through the London streets) to keep
himself from falling to the ground. Yet no reader of Boswell ever saw
anything ludicrous in such a last will and testament. Sophocles
makes Electra describe Clytemnestra as “laughing triumphantly”
over the murder of Agamemnon; but Electra was a prejudiced
witness. Killing an undesired husband is no laughing matter, though
triumph over its accomplishment—when failure means death—is a
legitimate emotion. Clytemnestra was a singularly august and
composed sinner. Not from her did Orestes and Electra inherit their
nervous systems; and not on their testimony should we credit her
with an excess of humour alike ill-timed and unbecoming.
In our efforts to discover what can never be discovered—the
secret sources of laughter—we have experimented with American
children; testing their appreciation of the ludicrous by giving them
blocks which, when fitted into place, display absurd and incongruous
pictures. Their reactions to this artificial stimulus are of value, only
when they are old enough for perception, and young enough for
candour. The merriment of children, of little girls especially, is often
unreal and affected. They will toss their heads and stimulate one
another to peals of laughter which are a pure make-believe. When
they are really absorbed in their play, and astir with delicious
excitation, they do not laugh; they give vent to piercing shrieks which
sound as if they were being cut into little pieces. These shrieks are
the spontaneous expression of delight; but their sense of absurdity,
which implies a sense of humour, is hard to capture before it has
become tainted with pretence.
There are American newspapers which print every day a sheet or
a half-sheet of comic pictures, and there are American newspapers
which print every Sunday a coloured comic supplement. These
sincere attempts to divert the public are well received. Their vulgarity
does not offend. “What,” asks the wise Santayana, “can we relish if
we recoil at vulgarity?” Their dullness is condoned. Life, for all its
antics, is confessedly dull. Our absurdities may amuse the angels
(Walpole had a cheerful vision of their laughter); but they cannot be
relied on to amuse our fellow men. Nevertheless the coloured
supplement passes from hand to hand—from parents to children,
from children to servants. Even the smudgy black and whites of the
daily press are soberly and conscientiously scrutinized. A man,
reading his paper in the train, seldom skips that page. He examines
every little smudge with attention, not seemingly entertained, or
seeking entertainment, but without visible depression at its
incompetence.
I once had the pleasure of hearing a distinguished etcher lecture
on the art of illustrating. He said some harsh words about these
American comics, and threw on the screen a reproduction of one of
their most familiar series. The audience looked at it sadly. “I am
glad,” commented the lecturer, “that you did not laugh. Those
pictures are, as you perceive, as stupid as they are vulgar. Now I will
show you some clever English work”: and there appeared before us
the once famous Ally Sloper recreating himself and his family at the
seashore. The audience looked at him sadly. A solemn stillness held
the hall. “Why don’t you laugh?” asked the lecturer irritably. “I assure
you that picture is funny.” Whereupon everybody laughed; not
because we saw the fun—which was not there to see—but because
we were jolted into risibility by the unwarranted despotism of the
demand.
The prohibition jest which stands preeminent in the United States,
and has afforded French and English humorists a field which they
have promptly and ably filled, draws its vitality from the inexhaustible
springs of human nature. Readers and play-goers profess
themselves tired of it; moralists deprecate its undermining qualities;
but the conflict between a normal desire and an interdict is too
unadjustable, too rich in circumstance, and too far-reaching in
results, to be accepted in sober silence. The complications incidental
to prohibition, the battle of wits, the turns of the game, the
adventures—often sorry enough—of the players, all present the
essential elements of comedy. Mrs. Gerould has likened the situation
to an obstacle race. It is that, and it is something more. In earlier,
easier days, robbery was made justifiably droll. The master thief was
equally at home in northern Europe and in the far East. England
smiled at Robin Hood. France evolved that amazing epithet,
“chevalier d’industrie.” But arrayed against robbery were a moral law
and a commandment. Arrayed against wine are a legal ordinance
and the modern cult of efficiency. It will be long before these become
so sacrosanct as to disallow a laugh.
The worst that has been said of legitimate American humour is
that it responds to every beck and call. Even Mr. Ewan S. Agnew,
whose business it is to divert the British public, considers that the
American public is too easily diverted. We laugh, either from light-
hearted insensitiveness, or from the superabundant vitality, the half-
conscious sense of power, which bubbles up forever in the callous
gaiety of the world. Certainly Emerson is the only known American
who despised jocularity, and who said early and often that he did not
wish to be amused. The most striking passage in the letters of Mr.
Walter Page is the one which describes his distaste for the “jocular”
Washington luncheons at which he was a guest in the summer of
1916. He had come fresh from the rending anxiety, the heroic stress
and strain of London; and the cloudless atmosphere of our capital
wounded his spirit. England jested too. “Punch” had never been so
brilliant as in the torturing years of war. But England had earned the
right to jest. There was a tonic quality in her laughter. Page feared
from the bottom of his soul lest the great peaceful nation, safe, rich
and debonair, had suffered her “mental neutrality” to blot out from
her vision the agony of Europe, and the outstanding facts which
were responsible for the disaster.
This unconcern, which is the balance wheel of comedy, has
tempered the American mind to an easy acceptance of chance. Its
enthusiasms are modified, its censures are softened by a restraining
humour which is rooted deeply in indifference. We recognize the
sanity of our mental attitude, but not its incompleteness.
Understanding and sympathy are products of civilized life, as
clarifying in their way as tolerance and a quick perception of the
ludicrous. An American newspaper printed recently a photograph
entitled “Smilin’ Through,” which showed two American girls peering
through two holes in a shell-torn wall of Verdun, and laughing
broadly at their sport. The names and addresses of these frolicsome
young women were given, and their enjoyment of their own drollery
was emphasized for the diversion of other young women at home.
Now granted that every nation, like every man, bears the burden
of its own grief. Granted also that every woman, like every man, has
her own conception of the humorous, and that we cannot reasonably
take umbrage because we fail to see the fun. Nevertheless the
memories of Verdun do not make for laughter. There is that in its
story which sobers the world it has ennobled. Four hundred
thousand French soldiers gave their lives for that battered fortress
which saved Paris and France. Mr. Brownell reminds us that there is
such a thing as rectitude outside the sphere of morals, and that it is
precisely this austere element in taste which assures our self-
respect. We cannot analyze, and therefore cannot criticize, that
frothy fun which Bergson has likened to the foam which the receding
waves leave on the ocean sands; but we know, as he knows, that
the substance is scanty, and the after-taste is bitter in our mouths.
We are tethered to our kind, and it is the sureness of our reaction to
the great and appealing facts of history which makes us inheritors of
a hard-won civilization, and qualified citizens of the world.
The Idolatrous Dog
We shall never know why a feeling of shame attends certain
harmless sensations, certain profoundly innocent tastes and
distastes. Why, for example, are we abashed when we are cold, and
boastful when we are not? There is no merit or distinction in being
insensitive to cold, or in wearing thinner clothing than one’s
neighbour. And what strange impulse is it which induces otherwise
truthful people to say they like music when they do not, and thus
expose themselves to hours of boredom? We are not necessarily
morons or moral lepers because we have no ear for harmony. It is a
significant circumstance that Shakespeare puts his intolerant lines,
“The man that hath no music in himself,

Nor is not moved with concord of sweet sounds,
Is fit for treasons, stratagems and spoils.
Let no such man be trusted”—
in the mouth of Lorenzo who disdained neither stratagems nor

spoils, and who carried off the Jew’s ducats as well as the Jew’s
daughter. And Jessica, who sits by his side in the moonlight, and
responds with delicate grace
“I am never merry when I hear sweet music,”

is the girl who “gilded” herself with stolen gold, and gave her dead
mother’s ring for a monkey.
It is a convenience not to feel cold when the thermometer falls,
and it is a pleasure to listen appreciatively to a symphony concert. It
is also a convenience to relish the proximity of dogs, inasmuch as
we live surrounded by these animals, and it is a pleasure to respond
to their charm. But there is no virtue in liking them, any more than
there is virtue in liking wintry weather or stringed instruments. An
affection for dogs is not, as we have been given to understand, a test
of an open and generous disposition. Still less is their affection for us
to be accepted as a guarantee of our integrity. The assumption that a
dog knows a good from a bad human being when he sees one is
unwarranted. It is part of that engulfing wave of sentiment which
swept the world in the wake of popular fiction. Dickens is its most
unflinching exponent. Henry Gowan’s dog, Lion, springs at the throat
of Blandois, alias Lagnier, alias Rigaud, for no other reason than that
he recognizes him as a villain, without whom the world would be a
safer and better place to live in. Florence Dombey’s dog, Diogenes,
looks out of an upper window, observes Mr. Carker peacefully
walking the London streets, and tries to jump down and bite him then
and there. He sees at once what Mr. Dombey has not found out in
years—that Carker is a base wretch, unworthy of the confidence
reposed in him.
A few animals of this kind might, in real life, close the courts of
justice. The Dickens dog is detective, prosecuting attorney, judge,
jury and executioner, all in one. He stands responsible for a whole
school of fictitious canines who combine the qualities of Vidocq,
Sherlock Holmes, and the Count of Monte Cristo. I read recently a
story in which the villain was introduced as “that anomalous being,
the man who doesn’t like dogs.” After that, no intelligent reader could
have been unprepared to find him murdering his friend and partner.
So much was inevitable. And no experienced reader could have
been unprepared for the behaviour of the friend and partner’s dog,
which recognizes the anomaly as a person likely to commit murder,
and, without wasting time on circumstantial evidence, tracks him
down, and, unaided, brings him to his death. A simple, clean-cut
retribution, contrasting favourably with the cumbersome processes of
law.
A year ago the Governor of Maine had the misfortune to lose his
dog. He signified his sense of loss, and his appreciation of the
animal’s good qualities, by lowering the American flag on the
Augusta State House to half-mast. He was able to do this because
he was Governor, and there was no one to say him nay.
Nevertheless, certain sticklers for formality protested against an
innovation which opened up strange possibilities for the future; and
one logical lady observed that a dog was no more a citizen than was
a strawberry patch, a statement not open to contradiction. The
country at large, however, supported the Governor’s action.
Newspaper men wrote editorials lauding the “homespun” virtues of
an official who set a true value on an honest dog’s affection. Poets
wrote verses about “Old Glory” and “Garry” (the dog’s name); and
described Saint Peter as promptly investing this worthy quadruped
with the citizenship of Heaven. The propriety or impropriety of
lowering the national flag for an animal—which was the question
under dispute—was buried beneath the avalanche of sentiment
which is always ready to fall at the sound of a dog’s name.
A somewhat similar gust of criticism swept Pennsylvania when a
resident of that State spent five hundred dollars on the obsequies of
his dog. The Great War, though drawing to a close, was not yet over,
and perhaps the thought of men unburied on the battle-field, and
refugees starving for bread, intensified public feeling. There was the
usual outcry, as old as Christianity—“this might have been given to
the poor.” There was the usual irrelevant laudation of the
Pennsylvania dog, and of dogs in general. People whose own affairs
failed to occupy their attention (there are many such) wrote
vehement letters to the daily press. At last a caustic reader chilled
the agitation by announcing that he was prepared to give five
hundred dollars any day for the privilege of burying his next-door
neighbour’s dog. Whether or not this offer was accepted, the public
never knew; but what troubled days and sleepless nights must have
prompted its prodigality!
The honour accorded to the dog is no new thing. It has for
centuries rewarded his valour and fidelity. Responsibilities, duties,
compensations—these have always been his portion. Sirius shines
in the heavens, and Cerberus guards in hell. The dog, Katmir, who
watched over the Seven Sleepers for three hundred and nine years,
gained Paradise for his pains, as well he might. Even the ill-fated
hounds of Actæon, condemned to kill their more ill-fated master, are
in some sort immortal, inasmuch as we may know, if we choose, the
names of every one of them. Through the long pages of legend and
romance the figure of the dog is clearly outlined; and when history
begins with man’s struggle for existence, the dog may be found his
ally and confederate. It was a strange fatality which impelled this
animal to abandon communal life and the companionship of his kind
for the restraints, the safety, the infinite weariness of domesticity. It
was an amazing tractableness which caused him to accept a set of
principles foreign to his nature—the integrity of work, the
honourableness of servitude, the artificial values of civilization.
As a consequence of this extraordinary change of base, we have
grown accustomed to judge the dog by human standards. In fact,
there are no other standards which apply to him. The good dog, like
the good man, is the dog which has duties to perform, and which
performs them faithfully. The bad dog, like the bad man, is the dog
which is idle, ill-tempered and over-indulged by women. Women are
responsible for most of the dog-failures, as well as for many of the
man-failures of the world. So long as they content themselves with
toy beasts, this does not much matter; but a real dog, beloved and
therefore pampered by his mistress, is a lamentable spectacle. He
suffers from fatty degeneration of his moral being.
What if the shepherd dog fares hardly, and if exposure stiffens his
limbs! He has at least lived, and played his part in life. Nothing more
beautiful or more poignant has ever been written about any animal
than James Hogg’s description of his old collie which could no longer
gather in the sheep, and with which he was compelled to part,
because—poor Ettrick shepherd—he could not afford to pay the tax
on two dogs. The decrepit beast refused to be separated from the
flocks which had been his care and pride. Day after day he hobbled
along, watching the new collie bustling about his work, and—too
wise to interfere—looking with reproachful eyes at the master who
had so reluctantly discarded him.
The literature of the dog is limitless. A single shelf would hold all
that has been written about the cat. A library would hardly suffice for
the prose and verse dedicated to the dog. From “Gêlert” to “Rab”
and “Bob, Son of Battle,” he has dominated ballad and fiction. Few
are the poets and few the men of letters who have not paid some
measure of tribute to him. Goethe, indeed, and Alfred de Musset
detested all dogs, and said so composedly. Their detestation was
temperamental, and not the result of an unfortunate encounter, such
as hardened the heart of Dr. Isaac Barrow, mathematician, and
Master of Trinity College. Sidney Smith tells us with something akin
to glee that this eminent scholar, when taking an early stroll in the
grounds of a friend and host, was attacked by a huge and
unwarrantably suspicious mastiff. Barrow, a fighter all his life (a man
who would fight Algerine pirates was not to be easily daunted),
hurled the dog to the ground, and fell on top of him. The mastiff
could not get up, but neither could Barrow, who called loudly for
assistance. It came, and the combatants were separated; but a
distaste for morning strolls and an aversion for dogs lingered in the
Master’s mind. There was one less enthusiast in the world.
We are apt to think that the exuberance of sentiment entertained
by Americans for dogs is a distinctively British trait, that we have
inherited it along with our language, our literature, our manliness, our
love of sport, our admirable outdoor qualities. But it may be found
blooming luxuriously in other and less favoured lands. That
interesting study of Danish childhood by Carl Ewald, called “My Little
Boy,” contains a chapter devoted to the lamentable death of a dog
named Jean, “the biggest dog in Denmark.” This animal, though at
times condescending to kindness, knew how to maintain his just
authority. “He once bit a boy so hard that the boy still walks lame. He
once bit his own master.” The simple pride with which these
incidents are narrated would charm a dog-lover’s soul. And the lame
boy’s point of view is not permitted to intrude.
Of all writers who have sung the praises of the dog, and who have
justified our love for him, Maeterlinck has given the fullest expression
to the profound and absorbing egotism which underlies this love.
Never for a moment does he consider his dog save as a worshipper.
Never does he think of himself save as a being worshipped. Never
does he feel that this relationship can be otherwise than just,
reasonable, and satisfying to both parties. “The dog,” he says,
“reveres us as though we had drawn him out of nothing. He has a
morality which surpasses all that he is able to discover in himself,
and which he can practise without scruple and without fear. He
possesses truth in its fullness. He has a certain and infinite ideal.”
And what is this ideal? “He” (the dog) “is the only living being that
has found, and recognizes, an indubitable, unexceptionable and
definite god.”
And who is this god? M. Maeterlinck, you, I, anybody who has
bought and reared a puppy. Yet we are told that the dog is intelligent.
What is there about men which can warrant the worship of a wise
beast? What sort of “truth in its fullness” is compatible with such a
blunder? Yet it is for the sake of being idolized that we prize and
cherish the idolater. Our fellow mortals will not love us unless we are
lovable. They will not admire us unless we are admirable. Our cats
will probably neither love nor admire us, being self-engrossed
animals, free from encumbering sensibilities. But our dogs will love
and admire the meanest of us, and feed our colossal vanity with their
uncritical homage. M. Maeterlinck recognizes our dependence on
the dog for the deification we crave, and is unreasonably angry with
the cat for her aloofness. In her eyes, he complains, we are
parasites in our own homes. “She curses us from the depths of her
mysterious heart.”
She does not. She tolerates us with a wise tolerance, recognizing
our usefulness, and indulgent of our foibles. Domesticity has not cost
her the heavy price it has cost the dog. She has merely exchanged
the asylum of cave or tree for the superior accommodation of the
house. Her habits remain unaltered, her freedom unviolated. Cream-
fed and pampered, she still loves the pleasures of the chase; nor will
she pick and choose her prey at the recommendation of prejudiced
humanity. M. Maeterlinck, who has striven to enter into the
consciousness of the dog, describes it as congested with duties and
inhibitions. There are chairs he must not sit on, rooms he must not
enter, food he must not steal, babies he must not upset, cats he
must not chase, visitors he must not bark at, beggars and tramps he
must not permit to enter the gates. He lives under as many, and as
strict, compulsions as though he were a citizen of the United States.
By comparison with this perverted intelligence, this artificial morality,
the mind of the cat appears like a cool and spacious chamber, with
only her own spirit to fill it, and only her own tastes and distastes to
be consulted and obeyed.
Perhaps it is because the dog is so hedged in by rules and
regulations that he has lost his initiative. Descended from animals
that lived in packs, and that enjoyed the advantages of communal
intelligence, he could never have possessed this quality as it was
possessed by an animal that lived alone, and had only his own
acuteness and experience to rely on. But having surrendered his will
to the will of man, and his conscience to the keeping of man, the dog
has by now grown dependent for his simplest pleasures upon man’s
caprice. He loves to roam; but whereas the cat does roam at will,
rightly rejecting all interference with her liberty, the dog craves
permission to accompany his master on a stroll, and, being refused,
slinks sadly back to confinement and inaction. I have great respect
for those exceptional dogs that take their exercise when they need or
desire it in self-sufficing solitude. I once knew an Irish terrier that had
this independent turn of mind. He invited himself to daily
constitutionals, and might have been seen any morning trotting along
the road, miles away from home, with the air of an animal walking to
keep his flesh down. In the end he was run over by a speeding
motor, but what of that? Die we must, and, while he lived, he was
free.
A lordliness of sentiment mars much of the admirable poetry
written about dogs. The poet thrones himself before addressing his
devoted and credulous ally. Even Matthew Arnold’s lines to “Kaiser
Dead”—among the best of their kind—are heavy with patronage:
“But all those virtues which commend
The humbler sort who serve and tend,
Were thine in store, thou faithful friend.”
To be sure, Kaiser was a mongrel; but why emphasize his low

estate? As a matter of fact, mongrels, like self-made men, are apt to
have a peculiar complacency of demeanour. They do not rank
themselves among “the humbler sort”; but “serve and tend” on the
same conditions as their betters.
Two years ago Mr. Galsworthy, who stands in the foremost rank of
dog-lovers, and who has drawn for us some of the most lifelike and
attractive dogs in fiction, pleaded strongly and emotionally for the
exemption of this animal from any form of experimental research. He
had the popular sentiment of England back of him, because popular
sentiment always is emotional. The question of vivisection is one of
abstract morality. None but the supremely ignorant can deny its
usefulness. There remain certain questions which call for clean-cut
answers. Does our absolute power over beasts carry with it an
absolute right? May we justifiably sacrifice them for the good of
humanity? What degree of pain are we morally justified in inflicting
on them to save men from disease and death? If we faced the issue
squarely, we should feel no more concern for the kind of animal
which is used for experimentation than for the kind of human being
who may possibly benefit by the experiment. Right and wrong admit
of no sentimental distinctions. Yet the vivisectionist pleads, “Is not
the life of a young mother worth more than the life of a beast?” The
anti-vivisectionist asks: “How can man deliberately torture the
creature that loves and trusts him?” And Mr. Galsworthy admitted
that he had nothing to say about vivisection in general. Cats and
rabbits might take their chances. He asked only that the dog should
be spared.
It has been hinted more than once that if we develop the dog’s
intelligence too far, we may end by robbing him of his illusions. He
has absorbed so many human characteristics—vanity, sociability,
snobbishness, a sense of humour and a conscience—that there is
danger of his also acquiring the critical faculty. He will not then
content himself with flying at the throats of villains—the out-and-out
villain is rare in the common walks of life—he will doubt the godlike
qualities of his master. The warmth of his affection will chill, its
steadfastness will be subject to decay.
Of this regrettable possibility there is as yet no sign. The hound,
Argus, beating the ground with his feeble tail in an expiring effort to
welcome the disguised Odysseus, is a prototype of his successor to-
day. Scattered here and there in the pages of history are instances
of unfaithfulness; but their rarity gives point to their picturesqueness.
Froissart tells us that the greyhound, Math, deserted his master, King
Richard the Second, to fawn on the Duke of Lancaster who was to
depose and succeed him; and that a greyhound belonging to
Charles of Blois fled on the eve of battle to the camp of John de
Montfort, seeking protection from the stronger man. These
anecdotes indicate a grasp of political situations which is no part of
the dog’s ordinary make-up. Who can imagine the fortunate, faithful
little spaniel that attended Mary Stuart in her last sad months, and in
her last heroic hours, fawning upon Queen Elizabeth? Who can
imagine Sir Walter Scott’s dogs slinking away from him when the
rabble of Jedburgh heaped insults on his bowed grey head?
The most beautiful words ever written about a dog have no
reference to his affectionate qualities. Simonides, celebrating the
memory of a Thessalian hound, knows only that he was fleet and
brave. “Surely, even as thou liest in this tomb, I deem the wild beasts
yet fear thy white bones, Lycas; and thy valour great Pelion knows,
and the lonely peaks of Cithæron.” This is heroic praise, and so, in a
fashion, is Byron’s epitaph on Boatswain. But Byron, being of the
moderns, can find no better way of honouring dogs than by defaming
men; a stupidity, pardonable in the poet only because he was the
most sincere lover of animals the world has ever known. His tastes
were catholic, his outlook was whimsical. He was not in the least
discomposed when his forgetful wolf-hound bit him, or when his
bulldog bit him without the excuse of forgetfulness. Moore tells us
that the first thing he saw on entering Byron’s palace in Venice was a
notice, “Keep clear of the dog!” and the first thing he heard was the
voice of his host calling out anxiously, “Take care, or that monkey will
fly at you.”
It is a pleasant relief, after floundering through seas of sentiment,
to read about dogs that were every whit as imperfect as their
masters; about Cowper’s “Beau” who has been immortalized for his
disobedience; or Sir Isaac Newton’s “Diamond” who has been
immortalized for the mischief he wrought; or Prince Rupert’s “Boy”
who was shot while loyally pulling down a rebel on Marston Moor; or
the Church of England spaniel, mentioned by Addison, who proved
his allegiance to the Establishment by worrying a dissenter. It is also
a pleasure of a different sort to read about the wise little dog who ran
away from Mrs. Welsh (Carlyle’s mother-in-law) on the streets of
Edinburgh, to follow Sir Walter Scott; and about the London dog of
sound literary tastes who tried for many nights to hear Dickens read.
It is always possible that if men would exact a less unalterable
devotion from their dogs, they might find these animals to be
possessed of individual and companionable traits.
But not of human sagacity. It is their privilege to remain beasts,
bound by admirable limitations, thrice happy in the things they do not
have to know, and feel, and be. “The Spectator” in a hospitable
mood once invited its readers to send it anecdotes of their dogs. The
invitation was, as might be imagined, cordially and widely accepted.
Mr. Strachey subsequently published a collection of these stories in
a volume which had all the vraisemblance of Hans Andersen and
“The Arabian Nights.” Reading it, one could but wonder and regret
that the tribe of man had risen to unmerited supremacy. The
“Spectator” dogs could have run the world, the war and the
Versailles Conference without our lumbering interference.
THE END
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It shall be an unlawful employment practice for an employer—

III. Evolving Definitions of Race

Alonzo v. Chase Manhattan Bank, N.A

IV. Background of Racial Discrimination in the United States

V. Race: Putting It All Together

VI. General Considerations

VII. Recognizing Race Discrimination

included under race discrimination claims by the EEOC.

The case demonstrates intent may be established by direct evidence of discrimination by an

Chandler v. Fast Lane, Inc.

VIII. Racial Harassment

As Daniels demonstrates, the employer’s best approach to racial harassment is to maintain a

IX. A Word about Color

included under race discrimination claims by the EEOC.

liability for race and color discrimination.

of $48 million against Denny’s.

Alonzo v. Chase Manhattan Bank, NA, 25 F. Supp. 2d 455 (S.D.N.Y. 1998)

Decision: Due to Alonzo’s pronouncement that he was discriminated against because he is an

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1. Are you surprised that this is a 2005 case? Explain.

discrimination can happen anywhere knowingly or unknowingly. A “glass ceiling” exists

Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990)

1. Do you agree with the court’s decision? Why or why not?

“The man that hath no music in himself,

Let no such man be trusted”—

in the mouth of Lorenzo who disdained neither stratagems nor

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