Individual versus Collective in Public Policy
The struggle between justice based on individual merit and collective justice appears in affirmative action and sexual harassment policies. Affirmative action originated as an executive policy of President Lyndon Johnson to implement Title VII of the 1964 Civil Rights Act. Executive Order 11246, September 1965, required federal contractors to "take affirmative action" to hire and employ racial minority (black) workers. The next month, the President added women to the requirement. These executive orders represented collective justice. They did not distinguish between black workers and women who had previously experienced employment discrimination and those workers who had not. The purpose of affirmative action was to advance all persons in protected categories on the basis of a class definition, not on the basis of individual merit.
The general justification for collective justice through affirmative action was that certain groups had been collectively discriminated against, so a collective remedy was appropriate. A black person was discriminated against on the basis of membership in a class of skin color, not on the basis of individual behavior. A similar argument was made for collective remedies for women. Women had been, because of membership in a gender class, historically prohibited from enjoying property and civil rights, for instance. In employment, state laws sometimes prohibited specific kinds of employment by women and both trade unions and employers discriminated against women on the basis of gender, regardless of merit. This history provided a basis for collective remedy.
The problem with the justification of collective justice was that the Fourteenth Amendment of the U.S. constitution requires equal protection of the law for all citizens. Discrimination by category was illegal; should not the act also prohibit favoritism by category? This issue would be worked out in the courts. The second problem with the collective justification of affirmative action was that the policy has no inherent end date. The executive orders requiring affirmative action made the policy an instrument for enforcing equality. When would the policy no longer be needed? If it had no practical end date, then it would essentially create by governmental action a class society in which some persons, by reason of their membership in a group, were permanently privileged. This would clearly violate the fourteenth amendment.
Sexual harassment regulations illustrate another feature of collective justice. Sexual harassment is more than discrimination on the basis of sex. It means sexual behaviors that place barriers before the employee. Removing these barriers - relics from an age of collective discrimination - was an important tactic in affirmative action. The definition of the category of sexual harassment grows by subsuming more and more instances of behavior - instances that were not originally thought to be included in the category. In the 1970s, sexual harassment was interpreted in terms of unwanted sexual advances that became conditions or obstacles to employment and advancement (quid pro quo). In the 1980s, the definition expanded to include insults; making an employee feel uncomfortable by word or action, even if the behavior was not sexual in content; even if the behavior did not result in harm; and even if the behavior was unintentional (hostile environment). The definition of sexual harassment as a hostile environment expands the definition of victimhood to include all women (and, later, homosexuals) in the environment, regardless whether they individually experienced hostility. Collective merit became more important than individual merit; hence, the basis for class-action law suits.
Feminists promoted prosecution of sexual harassment as a political position beginning in the 1970s. Their sponsorship transformed affirmative action regulation from a policy for collective compensation for prior gender discrimination to a political movement with ambitions for power in American life. Feminists worked aggressively to expand the concept of sexual harassment into new kinds of behaviors, because it opened new benches of power, not simply new arenas of opportunity. Only a narrowly divided U.S. Supreme Court thwarted the most extreme instances of feminists' ideological agenda.
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