Civil Rights and Discrimination Commons^™

Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss

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The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing--or …

Toward A Sui Generis View Of Black Rights In Canada? Overcoming The Difference-Denial Model Of Countering Anti-Black Racism, Lolita Buckner Inniss

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No abstract provided.

Foreword, Richard B. Collins

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No abstract provided.

Disparate Impact Discrimination: The Limits Of Litigation, The Possibilities For Internal Compliance, Melissa Hart

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No abstract provided.

The Possibility Of Avoiding Discrimination: Considering Compliance And Liability, Melissa Hart

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The gender discrimination class action Dukes v. Wal-Mart Stores, Inc., whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to …

Skepticism And Expertise: The Supreme Court And The Eeoc, Melissa Hart

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The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view …

Learning From Wal-Mart, Melissa Hart

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This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women's workplace opportunities. The plaintiffs' arguments - both the narrative of discrimination their evidence set out and the legal strategies they chose - are strikingly similar to claims that have been made in many class action …

Against "Academic Deference": How Recent Developments In Employment Discrimination Law Undercut An Already Dubious Doctrine, Scott A. Moss

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When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an "academic deference" argument. Citing the importance of their "academic freedom," defendants and sympathetic courts have asserted that federal courts should decline to "invade" higher education with "federal court supervision." Whether or not courts cite the "academic deference" doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that …

Statutes Of Limitations: A Policy Analysis In The Context Of Reparations Litigation, Suzette M. Malveaux

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This article discusses the underlying policy rationales for statutes of limitations and their exceptions, as demonstrated by Supreme Court precedents. This article explores limitations law in the context of a case brought by African-American survivors of the Tulsa Race Riot of 1921 who sought restitution from the local government for its participation in one of the worst race riots in American history, in violation of their constitutional and federal civil rights. Using the Tulsa case as an exemplar, this article analyzes the propriety of the case’s dismissal as time-barred, and contends that this outcome was unwarranted under precedents and failed …

Subjective Decisionmaking And Unconscious Discrimination, Melissa Hart

Publications

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying …

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

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In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

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The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

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As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

Will Employment Discrimination Class Actions Survive?, Melissa Hart

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Recent years have witnessed increasing attacks on the appropriateness of certification of employment discrimination class action claims. The shift is often attributed to amendments to federal antidiscrimination laws in the Civil Rights Act of 1991. This paper argues, however, that the changes wrought by the 1991 amendments need not pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class …

Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun

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No abstract provided.

Petitioner's Brief, Richard B. Collins

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No abstract provided.

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

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No abstract provided.

Women Choosing Diverse Workplaces: A Rational Preference With Disturbing Implications For Both Occupational Segregation And Economic Analysis Of Law, Scott A. Moss

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Despite women's dramatic labor market gains, there remains a striking degree of occupational segregation by gender. Analysts typically blame discrimination or women's work/family priorities. This Article offers a different explanation.

It is hard for women choosing jobs or occupations to know where they will face discrimination, particularly since recent judicial decisions eliminated certain employer signals that once differentiated fair and discriminatory firms. One way women can effectuate a preference for nondiscriminatory workplaces is by choosing gender-diverse workplaces. Nondiverse workplaces often are not female-friendly, and discrimination may be the reason they are nondiverse. In economic terms, women rationally use level of …

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen Norton

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Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of …

A Moving Violation? Hypercriminalized Spaces And Fortuitous Presence In Drug Free School Zones, L. Buckner Inniss

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No abstract provided.

Litigation Narratives: Why Jensen V. Ellerth Didn't Change Sexual Harassment Law, But Still Has A Story Worth Telling, Melissa Hart

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No abstract provided.

Locked In Segregation, Daria Roithmayr

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In earlier work, I have developed the lock-in model of inequality, which compares persistent racial inequality to persistent market monopoly power. In this article, I explore the implications of applying the lock-in model to the problem of residential segregation. Here, I put forward two central arguments. First, I argue that residential segregation constitutes an example of a locked-in racial monopoly. During the days of Jim Crow, white racial cartels (e.g., homeowners' associations and real estate boards) engaged in anti-competitive conduct to exclude blacks and monopolize access to good neighborhoods. That early neighborhood advantage has now become locked-in via certain self-reinforcing …

An Essay On The Professional Responsibility Of Affirmative Action In Higher Education, Emily Calhoun

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No abstract provided.

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

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No abstract provided.

Direct Measures: An Alternative Form Of Affirmative Action, Daria Roithmayr

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In this essay, I will propose an alternative form of law school affirmative action that does not rely on racial classifications, but nevertheless helps to remedy racial discrimination, to diversify the educational environment and to provide resources for underserved communities. In particular, I propose a "direct measures" program that would grant admissions preferences on the basis of the following criteria: (1) whether an applicant has suffered from the effects of racial discrimination; (2) whether, on issues of racial and social justice, the applicant can contribute a perspective or viewpoint not currently represented within the majority of the student population, and …

Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel

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No abstract provided.

Left Over Rights, Daria Roithmayr

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This Essay focuses on Duncan Kennedy's argument for a "post-rights" position, in the wake of the earlier critical legal studies critique of rights and the ensuing response by Critical Race Theorists. I argue that, notwithstanding Kennedy's loss of faith in rights discourse, rights talk might still be pragmatically useful for communities of color to operate strategically within the accepted legal framework, or to subvert that framework in order to advance particular political commitments for particular communities of color at particular moments in history.

Tricky Magic: Blacks As Immigrants And The Paradox Of Foreignness, Lolita K. Buckner Inniss

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Since the beginning of the nation, white Americans have suffered from a deep inner uncertainty as to who they really are. One of the ways that has been used to simplify the answer has been to seize upon the presence of black Americans and use them as a marker, a symbol of limits, a metaphor for the "outsider." Many whites could look at the social position of blacks and feel that color formed an easy and reliable gauge for determining to what extent one was or was not American. Perhaps that is why one of the first epithets that many …

Women And The Promise Of Equal Citizenship, Jennifer S. Hendricks

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Anticipating the decision in United States v. Morrison (2000), holding that the civil rights remedy of the Violence Against Women Act was not a legitimate exercise of Congress's power to enforce the Equal Protection Clause, this article argues that the Act could be upheld as an exercise of Congress's authority under the Citizenship Clause of the Fourteenth Amendment. Congress's authority under the Citizenship Clause is analogous to its authority under the "badges and incidents" doctrine of the Thirteenth Amendment, which allows Congress to provide protection from discriminatory violence. This theory would also guide interpretation of the act to focus on …

A New Options Theory For Risk Multipliers Of Attorney's Fees In Federal Civil Rights Litigation, Peter H. Huang

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Given the importance of private enforcement of federal civil rights laws, Congress and the courts have attempted to encourage plaintiffs' attorneys to accept meritorious civil rights cases through fee shifting and risk multipliers. Recently, however, the Supreme Court has essentially prohibited the use of risk multipliers, thus undercompensating attorneys for the risk of losing civil rights actions and discouraging the filing of such cases. In this Article, Professor Huang develops a new options-based theory of calculating attorney's fees. Professor Huang argues that a lawsuit consists of a sequence of options to continue with the case rather than a once-and-for-all irreversible …