72 Pages Posted: 28 Jul 2004
Innocence can be defined in a narrow, even technical way: Freedom from specific guilt; the fact of not being guilty of that with which one is charged; guiltlessness. But innocence can also take on a larger meaning that extends beyond technicality into morality: Freedom from sin, guilt, or moral wrong in general; the state of being untainted with, or unacquainted with, evil; moral purity. This broader definition conveys a larger idea that is more powerful and evocative than the former's narrow literalism.
Innocence has played an important role in three lines of judicial decisions addressing claims of workplace discrimination: Remedies decisions, decisions reviewing affirmative action in public employment, and decisions reviewing affirmative action in private employment. From the Supreme Court's perspective, the innocent third parties in these workplace discrimination cases are the white and male co-workers of the African-American and women workers who have been the victims of discrimination. The Supreme Court has repeatedly relied on the innocence of white and male workers to deprive African-American and female discrimination victims of complete relief from discrimination.
This essay argues that the Supreme Court's innocence jurisprudence in the workplace discrimination cases represents a subtle bait-and-switch of one definition of innocence for the other. The white and male co-workers of the victims of discrimination are innocents only in the sense that they satisfy the narrower definition: Freedom from specific guilt. Nonetheless, the Supreme Court has afforded these innocents protection appropriate only for those who satisfy the broader, moral definition of innocence. Thus, the Court's workplace discrimination decisions minimize discrimination and its victims while emphasizing the purported plight of innocent co-workers.
This misuse of the power of innocence has deprived the victims of discrimination of complete justice. The central issue became how best to resolve a manufactured struggle between the victims of discrimination and their co-workers over jobs, promotions, and wages rather than how to eliminate the vestiges of discrimination from the workplace. The Court's answer, dictated by its re-shaping of the question, has been to constrain the lower courts and other branches and levels of government from preferring the victims of discrimination over their innocent co-workers in the assignment of burdens and benefits in the workplace.
This essay discloses how the Supreme Court has wielded the power of innocence in its workplace discrimination cases. But it also responds to the Supreme Court's subtle bait-and-switch of one form of innocence for another with a resounding fuhgeddaboutit! This essay recruits America's favorite TV mob family - the Sopranos - to help in the assessment of what it means to be innocent. Fictional New Jersey crime boss Tony Soprano, his wife Carmela, his oldest child Meadow, and only son Anthony, Jr. (AJ) challenge the role that innocence plays in the resolution of disputes over workplace discrimination and help us to understand that innocence, as defined in the only manner that befits the white and male co-workers of the victims of discrimination, is and should be irrelevant to the resolution of these disputes. In the process, the Sopranos offer a competing vision of what it means to genuinely and fully remedy workplace discrimination. It's an offer we can't refuse.
Keywords: innocence, The Sopranos, discrimination, employment discrimination, remedies, affirmative action, race, sex, gender, Supreme Court, Powell, Brennan, constitution, equal protection, Title VIII, metaphor, Grutter, innocent, internal labor markets, seniority
Suggested Citation: Suggested Citation
Harris, Seth D., Innocence and The Sopranos. New York Law School Law Review, Vol. 49, 2004. Available at SSRN: https://ssrn.com/abstract=570249