In chapter 3 I build on this conclusion and argue that political solidarity based on a common relationship to oppression and domination is the appropriate focus of (racial) identity politics and legal rights assertion; by contrast cultural claims are more contestable on both descriptive and normative terms and should be left to more fluid domains of conflict resolution such as social dialogue, the democratic process and the market economy . . . . With respect to the "foreseeable effects" model, the 1995 test for the first prong, the existence of a foreseeable impact, clearly encompasses more than cultural difference.94 In the discussion of the business necessity defense one could substitute "subordination" for "assimilation," such that the defense should be interpreted narrowly to exclude justifications that reproduce, or contribute to, racial subordination.95 Along similar lines, the alternatives model fairly easily could be made to resonate with antisubordinationism.
Barbara J. Flagg,
An Essay for Keisha (and A Response to Professor Ford),
14 Duke Journal of Gender Law & Policy
Available at: http://scholarship.law.duke.edu/djglp/vol14/iss1/5