Law and Race Commons^™

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd

American University Journal of Gender, Social Policy & the Law

In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …

Panel 5 - The Future Of Employment Law, Karla Gilbride, Geraldine Sumter, Stephen Rich, Marcia Mccormick, Michael Selmi

American University Journal of Gender, Social Policy & the Law

FACILITATOR: All right everyone, welcome to our last panel, “The Future of Employment Law.” I want to quickly introduce our moderator, Karla Gilbride, the co-director of the Access to Justice Project. Karla, you can take it away.

Hidden Figures: Wage Inequity And Economic Insecurity For Black Women And Other Women Of Color, Cassandra Jones Havard

St. John's Law Review

(Excerpt)

One hundred years after women secured the right to vote, wage inequality remains prevalent in the United States. The gender wage gap, or pay inequity based solely on sex, arguably, is a measure of the current failure of full and equal participation by women in American society. The gender wage gap exists despite federal legislation designed to further wage equality. In fact, a difference as small as two cents over a lifetime costs a woman approximately $80,000. Currently, it is predicted that for a majority of white women, the pay parity will be attained between 2059–2069. However, Black women …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Catholic University Law Review

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

Can I Touch Your Hair?: Business Diversity, Slavery, Disparate Outcomes, And The Crown Act, Ashley Jones

The Journal of Business, Entrepreneurship & the Law

This comment will begin by looking at why hair in the United States is related to issues of race. This comment will then look at how businesses’ rules for appearance and hair disproportionately affect Black employees. Next, this paper will look at Title VII of the Civil Rights Act of 1964 to point out how the vague language has created loopholes, which allow businesses to lawfully discriminate against people with natural hair. We will then move to explore what role some city and state governments have had in creating natural hair-safe workspaces for employees in their respective boundaries. Lastly, we …

Cause For Concern Or Cause For Celebration?: Did Bostock V. Clayton County Establish A New Mixed Motive Theory For Title Vii Case And Make It Easier For Plaintiffs To Prove Discrimination Claims?, Terrence Cain

Seattle University Law Review

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an employee “because of” race, color, religion, sex, or national origin. This seems simple enough, but if an employer makes an adverse employment decision partly for an impermissible reason and partly for a permissible reason, i.e., if the employer acts with a mixed motive, has the employer acted “because of” the impermissible reason? According to Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the answer is no. The Courts in Gross and Nassar held …

Table Of Contents

Seattle University Law Review

Table of Contents

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Undocumented Domestic Workers: A Penumbra In The Workforce, Abigail A. Roman

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Employer Liability For Sex Harassment Through The Lens Of Restorative Justice, Emily Rees

Cleveland State Law Review

Title VII cases alleging sex harassment have become almost completely deferential to employers who have anti-harassment policies. In this Note, I discuss legal and sociological influences on this development and propose using restorative justice focused mediation to avoid rendering Title VII entirely ineffective. Mediation should only be compelled as a remedy—after a court finds that harassment occurred, but that the plaintiff cannot prove her employer knew about the harassment. Instead of dismissing these cases—where judges have already found illegal discrimination—some corrective action should be imposed on the employer for its failure to maintain a harassment-free workplace. Focusing mediation on principles …

Wearing My Crown To Work: The Crown Act As A Solution To Shortcomings Of Title Vii For Hair Discrimination In The Workplace, Margaret Goodman

Touro Law Review

No abstract provided.

Back To The Drawing Board! Legislating Hollywood, Christina Shu Jien Chong

Georgia State University Law Review

The United States Department of Justice “contended that equal employment opportunity in the broadcast industry could ‘contribute significantly toward reducing . . . discrimination in other industries’ because of the ‘enormous impact . . . television . . . [has] upon American life.’” Courts have also recognized that “communities . . . ’[must] take an active interest in the . . . quality of [television programming because television] has a vast impact on their lives and the lives of their children.’” Unfortunately, Hollywood continues to promote an insular culture that excludes minorities from influential behind-the-camera and on-screen positions.

Although the …

Equal Protection And The Social Sciences Thirty Years After Mccleskey V. Kemp, Destiny Peery, Osagie K. Obasogie

Northwestern University Law Review

No abstract provided.

Rethinking Employment Discrimination Harms, Jessica Roberts

Indiana Law Journal

Establishing harm is essential to many legal claims. This Article urges the law to adopt a more expansive notion of the harms of employment discrimination to better reflect the cognitive functions of individuals who face discrimination. While the effect of implicit bias on the mental state of potential discriminators is well-worn territory in antidiscrimination scholarship, little has been written about a sister theory: stereotype threat. More than a decade’s worth of social psychology research indicates that when a person is conscious of her membership in a particular group and the group is the subject of a widely recognized stereotype, that …

Affirmative Action: Alive And Well After Stotts, Ralph J. Conrad

Akron Law Review

This comment examines the current state of affirmative action in light of the special protection that the Supreme Court grants seniority systems. This comment also discusses the future of affirmative action and how the changes in affirmative action will affect collective bargaining agreements and consent decrees.

A Comparative Analysis Of Unconscious And Institutional Discrimination In The United States And Britain, Leland Ware

Georgia Journal of International & Comparative Law

No abstract provided.

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

An Industry Missing Minorities: The Disparate Impact Of The Securities And Exchange Commission's Fingerprinting Rule, Kelly Noonan

Chicago-Kent Law Review

The Equal Employment Opportunity Commission ("EEOC") recently asserted that the use of criminal background checks as an employment screening tool may have a disparate impact on African Americans and Hispanics, in violation of Title VII of the Civil Rights Act of 1964. The EEOC and some private claimants have even filed lawsuits against employers claiming disparate impact violations based on statistics that show African Americans and Hispanics are considerably more likely to have criminal records than other racial groups. Yet, certain federal regulatory agencies require participants in their industries to subject employees to criminal background checks as a condition of …

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

Critical Race Praxis: Race Theory And Political Lawyering Practice In Post-Civil Rights America, Eric K. Yamamoto

Michigan Law Review

At the end of the twentieth century, the legal status of Chinese Americans in San Francisco's public schools turns on a requested judicial finding that a desegregation order originally designed to dismantle a system subordinating nonwhites now invidiously discriminates against Chinese Americans. Brian Ho, Patrick Wong, and Hilary Chen, plaintiffs in Ho v. San Francisco Unified School District, represent "all [16,000] children of Chinese descent" eligible to attend San Francisco's public schools. Their high-profile suit, filed by small-firm attorneys, challenges the validity of a 1983 judicial consent decree desegregating San Francisco's schools. Approved in response to an NAACP class action …

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Michigan Law Review

In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the …

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …

The Michael Jackson Pill: Equality, Race, And Culture, Jerome Mccristal Culp Jr.

Michigan Law Review

This chronicle is in tribute to the work of Derrick Bell, past, present, and future. I have borrowed his character Geneva Crenshaw as part of that tribute, and I hope she helps me raise some of the issues that he has taught us are important.

All characters in this chronicle are fictional, including Professor Culp and Professor Bell. Any relationship they may have to the real Professor Bell and Professor Culp is dictated by the requirements of creativity and the extent to which reality and fiction necessarily merge. I know that the real Derrick Bell is wiser than the one …

Pure Politics, Girardeau A. Spann

Michigan Law Review

Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …

Finding A "Manifest Imbalance": The Case For A Unified Statistical Test For Voluntary Affirmative Action Under Title Vii, David D. Meyer

Michigan Law Review

This Note analyzes the "manifest imbalance" standard developed in Weber and Johnson and the various approaches the lower courts have taken in trying to apply the test. Part I examines the Weber and Johnson opinions in some detail, and argues that the Court intended to permit affirmative action aimed at remedying the evident effects of past discrimination, regardless of whether the employer or society at large is to blame. Section I.A describes the diverging constitutional and statutory standards for evaluating voluntary affirmative action programs, and the policies behind the divergence. Sections I.B and I.C take a closer look at the …

Strangers In Paradise: Griggs V. Duke Power Co. And The Concept Of Employment Discrimination, Alfred W. Blumrosen

Michigan Law Review

In March 1966, the Equal Employment Opportunity Commission (EEOC) negotiated an extensive agreement with the Newport News Shipyard to eliminate employment discrimination. The outcome of these negotiations-which were conducted by the Office of Conciliations which I then headed-was the first major achievement for the EEOC under title Vll of the Civil Rights Act of 1964. Following that episode, Ken Holbert, Deputy Chief of Conciliations, and I decided to try to negotiate a model conciliation agreement on the subject of discriminatory employment testing. We knew that many companies had introduced tests in the 1950's and early 1960's when they could no …