Law and Race Commons^™

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

(A)Woke Workplaces, Michael Z. Green

Faculty Scholarship

With heightened expectations for a reckoning in response to the broad support for the Black Lives Matter movement after the senseless murder of George Floyd in 2020, employers explored many options to improve racial understanding through discussions with workers. In rejecting any notions of the existence of structural or systemic discrimination, let alone the need to address the consequences of such discrimination, certain groups have begun to oppose BLM by seeking to diminish any social justice actions. One of those key resistance efforts includes labelling in pejorative terms any employers that pursue anti-racism objectives via social justice statements or internal …

Introduction: What Matters For Black Workers After 2020?, Michael Z. Green

Faculty Scholarship

This paper operates as the Introduction to a Symposium that resulted from a Call for Papers discussing the topic of "What Matters for Black Workers after 2020?" to be published in the 25th volume of the Employee Rights and Employment Policy Journal for 2021. This paper briefly discusses the papers in that Symposium publication authored by Jamillah Bowman Williams, Michael Duff, and Henry Chambers that address this topic. I thank Noah Zatz, Marty Malin, Michael Oswalt, Marcia McCormick, and Tristan Kirvan for their dedicated efforts, feedback, and encouragement in completing this Symposium issue for the journal on this very important …

A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones

Faculty Scholarship

When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Colorism: A Darker Shade Of Pale, Taunya Lovell Banks

Faculty Scholarship

In this article, Professor Banks argues that colorism, skin tone discrimination against dark-skinned but not light-skinned blacks, constitutes a form of race-based discrimination. Skin tone discrimination coexists with more traditional forms of race discrimination that impact all blacks without regard to skin tone and phenotype, yet courts seem unwilling to recognize this point. Professor Banks uses employment discrimination cases to illustrate some courts' willingness to acknowledge subtler forms of race-based discrimination, like skin tone discrimination, for white ethnic and Latina/o plaintiffs, but not for black plaintiffs. The inability of courts to fashion coherent approaches to colorism claims involving black claimants …

When Different Means The Same: Applying A Different Standard Of Proof To White Plaintiffs Under The Mcdonnell Douglas Prima Facie Case Test, Angela Onwuachi-Willig

Faculty Scholarship

The idea that Whites, in particular white males, are the new victims of discrimination is steadily gaining acceptance among white Americans. While only 16 percent of white individuals claim to know someone who has been the victim of reverse discrimination, more than 70 percent of Whites are convinced that reverse discrimination is a rampant problem. Additionally, although reverse discrimination cases generally constitute a small percentage of filed discrimination cases, usually about 1 to 3 percent, that number is beginning to grow. In particular, the percentage of reverse discrimination claims brought by federal workers, the very workers for whom affirmative action …

The Verdict On Roberts V. Texaco, Angela Onwuachi-Willig

Faculty Scholarship

When I first heard that Bari-Ellen Roberts had written a book about the race discrimination lawsuit against Texaco, I was ecstatic. I was eager to read about the legal strategies that had resulted in the highest settlement award ever given in a class action race discrimination lawsuit. After reading the first few pages of the book, however, I became somewhat disappointed. The first few chapters made it clear that Roberts's book was not about the actual details of the class action lawsuit against Texaco but about Roberts's personal experiences at home, in school, and in the corporate world. As I …