Books: The Origins of Woke

Civil Rights Law, Corporate America, and the Triumph of Identity Politics

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True story: I was pushing my shopping cart down the aisle at Giant Eagle when there was an announcement over the loudspeaker about how the store celebrates the LGBTQ+ community. It must play pretty often, since for a month I heard it once or twice every time I stopped by to pick up eggs or milk.

Another month, it was announcements celebrating the Latinx community. If you don’t know, Latinx is the new term for Hispanic people. Most Hispanic people haven’t heard of it, either. My impression was that it is mainly used by activists and academics, but now I hear it in between piped-in music at the grocery store.

I recall a time not so long ago when grocery chains didn’t do this sort of thing. But I’m slightly nervous to even notice and question the change. I don’t like hassle, and that time I coauthored something noticing the proliferation of trigger warnings and microaggression complaints, it resulted in a denunciation or two.

All of these things are what many people nowadays consider examples of wokeness.

What is Wokeness?

Like most morally loaded terms that become popular, wokeness has been stretched all over the place to fit this grievance or that. Much as there are many on the left for whom racist means “whatever I dislike,” there are many on the right who use woke the same way.

But however much they get abused, the terms do refer to real phenomena. In the case of wokeness, lumpers and splitters vary in what they want to include. Most would probably count strong concern with race, sexuality, and gender in all walks of life. Other candidates include rapidly evolving and expansive definitions of what counts as offensive speech, seeing everything in terms of collective oppression, and conspicuously signaling one’s loyalty to certain minority groups.

In his book Origins of Woke, political scientist / Nietzschean gadfly Richard Hanania defines this often-vague term with three pillars: The beliefs that 1) disparities are always the result of discrimination, at least if they favor non-protected groups; 2) that to address this speech needs to be restricted; and 3) that combatting discrimination and regulating speech require a full-time bureaucracy. If I understand, the idea is that most other things associated with wokeness follow from these.

The main thesis of the book is that these pillars of wokeness are results of the law: That each of these is something mandated by government policy. And Hanania thinks the observation is important because critics of wokeness, particularly on the right, tend to rage ineffectually against it without ever realizing that much of what they complain about is legally mandated.

The Legal Basis of Wokeness

Of course, the relationship between law and culture runs both ways, with culture also shaping law. But that relationship seems to get more attention than the reverse. Hanania’s argument is that legal doctrines and decisions have a powerful influence on culture.

In the case of wokeness, he traces much of it to the 1964 Civil Rights Act — well, sort of. It’s the subsequent expansion and transformation through judicial interpretations, presidential executive actions, and the decisions of administrative agencies that are the real story.

He presents “four great innovations of civil rights law” that breed wokeness: federally mandated affirmative action, the disparate impact doctrine, harassment law, and regulation of education by Title IX.

Modern affirmative action has its origins in a 1965 executive order (EO) from President Johnson, later expanded by an order from President Obama. The Johnson order required government contractors adopt goals and establish timetables whenever certain minorities were underrepresented in the workforce.

The effect of the EO was the force any business that works with the government to classify their workers by government demographic categories, tabulate their numbers within various organizational units, and comparing these to the distribution of those categories in the general population. Given the massive size of modern government, this order effected a big swath of private businesses. It made them care a lot about the race and sex of their employees and about having the right demographic mix. As Hanania puts it:

“Long before people noticed that identity-related issues had consumed American universities, something resembling wokeness had already been forced on big business.”

The disparate impact standard is the result of a 1971 Supreme Court Case, Griggs versus Duke Power Company. It makes any employment test or requirement potentially illegal if protected classes underperform relative to nonprotected ones. The standard makes every test and requirement — physical or mental, skill or subject knowledge — a legal danger, since the wrong groups might over- or underperform. The same is true on codes of conduct — thus the Obama administration warned schools about “punishment gaps” between black and white students.

Harassment law is “built on the idea that Title VII is violated when women or minorities are made to feel uncomfortable at work.” A series of court decisions made it so that employers were liable for creating “a hostile work environment” even if there was no tangible harm to the victim, and even if the offensive words or images were not directed at the victim, and even if they were the product of fellow employees and not of the employer.

All this puts employers in the position of being potentially legally liable for discomfort among their protected-class employees.  It strongly incentivizes them to micromanage workplace interactions and police employee speech, always with an eye on what the most sensitive person might find offensive.

Google’s firing of engineer James Damore is one result of this trajectory.

Damore was fired for circulating a memo suggesting that perhaps the tech industry was not discriminating against women, but hired fewer female coders because relatively fewer women were into coding. Google was making the right business decision given that any speech that might make women uncomfortable was a bigger legal threat than firing someone from an unprotected class. But without that context, it seems like madness that a company would fire an employee for defending the company — Google’s position is that sexism is bad, and we will fire employees who claim we’re not sexist.