Civil Rights and Discrimination Commons^™

Beyond Policing, India Thusi

Books & Book Chapters by Maurer Faculty

We all deserve to live in communities where we feel safe

And true community safety means feeling safe from violence by the state, which includes the police. Social inequity has systematically and institutionally permeated our country since its founding, becoming more visible at various times in our history. We are now living in one of those moments of tremendous clarity, and it calls on us to look deeply at the efficacy of the reforms and narratives which preceded it . The deadly consequences of political decisions that create health disparities are now a wound that cannot be unseen as the …

Don't Fight Like Cats And Dogs: Using Mediation For Workplace Accommodation Requests For Service Animals, John F. Walpole

Cardozo Journal of Conflict Resolution

The consideration process surrounding the use of reasonable accommodations in the workplace is sophisticated, flexible, and often litigious. Although employers are required to provide reasonable accommodations to employees, accommodation requests can be denied by showing an undue burden in the workplace. Because this determination is made on a case-by-case basis, there are no bright line rules for when it is acceptable for an employer to refuse an accommodation request. Accordingly, this situation can deprive deserving employees of accommodations and expose employers to liability. Mediation is an excellent process to address this problem because creative solutions can be used to make …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

Sex-Based Discrimination In Health Care Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

Articles

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the …

Symbolism And The Thirteenth Amendment: The Injury Of Exposure To Governmentally Endorsed Symbols Of Racial Superiority, Edward H. Kyle

Michigan Journal of Race and Law

One of the debates often encountered by native southerners centers around our historical symbols. There are heated opinions on both sides of the issue as to what these symbols mean and whether they should be allowed to be displayed. The latter question has begun making its way into the courts, with many southern symbols and memorials being accused of promoting the philosophy of racial supremacy. Despite the growing public concern, modern courts refuse to rule on the question. They claim they are forestalled by Article III’s standing requirement that plaintiffs must have suffered a concrete injury in fact. They state …

Comments On The Preliminary Framework For Equitable Allocation Of Covid-19 Vaccine, Ana Santos Rutschman, Julia Barnes-Weise, Robert Gatter, Timothy L. Wiemken

All Faculty Scholarship

On September 1, 2020 the National Academies released a draft framework for Equitable Allocation of a COVID-19 Vaccine. In this response, we analyze the proposed framework and highlight several areas.

Among the proposed changes, we highlight the need for the following interventions. The final framework for distribution of COVID-19 vaccines should give a higher priority to populations made most vulnerable by the social determinants of health. It should incorporate more geography-based approaches in at least some of the four proposed phases of vaccine distribution. It should address the possibility of a vaccine being made available through an emergency use authorization …

The Superfluous Fifteenth Amendment?, Travis Crum

Scholarship@WashULaw

This Article starts a conversation about reorienting voting rights doctrine toward the Fifteenth Amendment. In advancing this claim, I explore an unappreciated debate—the “Article V debate”—in the Fortieth Congress about whether nationwide black suffrage could and should be achieved through a statute, a constitutional amendment, or both. As the first significant post-ratification discussion of the Fourteenth Amendment, the Article V debate provides valuable insights about the original public understandings of the Fourteenth and Fifteenth Amendments and the distinction between civil and political rights.

The Article V debate reveals that the Radical Republicans’ initial proposal for nationwide black suffrage included both …

Law, Structural Racism, And The Covid-19 Pandemic, Ruqaiijah Yearby, Seema Mohapatra

All Faculty Scholarship

Racial and ethnic minorities have always been the most impacted by pandemics because of: disparities in exposure to the virus; disparities in susceptibility to contracting the virus; and disparities in treatment. This article explains how structural racism, the ways in which laws are used to advantage the majority and disadvantage racial and ethnic minorities, has caused these disparities. Specifically, this article focuses on how employment, housing, health care, and COVID-19 relief laws have been manipulated to disadvantage racial and ethnic minorities, making minorities more susceptible to COVID-19 infection and death. This article uses Blumenshine’s 2008 framework to outline how structural …

Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra

All Faculty Scholarship

Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage …

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

All Faculty Scholarship

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

'Sex' And Religion After Bostock, Sachin S. Pandya, Marcia L. Mccormick

All Faculty Scholarship

This paper reviews the U.S. Supreme Court’s opinion in Bostock v. Clayton County. There, the Court held that by barring employer discrimination against any individual “because of such individual’s . . . sex,” Title VII of the Civil Rights Act of 1964 also bars employment discrimination because an individual is gay or transgender. The paper then speculates about how much Bostock will affect how likely lower court judges will read other “sex” discrimination prohibitions in the U.S. Code in the same way, in part based on a canvass of the text of about 150 of those prohibitions. The paper also …

Immigration, Emigration, Fungible Labour And The Retreat From Progressive Taxation, Henry Ordower

All Faculty Scholarship

With emphasis on the US, this chapter explores the role that taxation plays in the movement of people and capital. The chapter addresses the relationship between taxes and retention of capital, including tax incentives for capital investment, shifting tax burdens from capital to labor as progressive taxation wanes, and rules preventing the escape of capital from its current taxing jurisdiction. Next, the discussion moves on to consider how taxes supplement immigration policy to attract capital currently outside the jurisdiction. The chapter then queries whether taxes play any significant role in attracting or retaining skilled labor before identifying how tax trends …

Protecting The Rights Of People With Disabilities, Elizabeth Pendo

All Faculty Scholarship

One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of under-served racial and ethnic groups with disabilities experience greater disparities in health status and access …

Sex-Based Discrimination In Healthcare Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

All Faculty Scholarship

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the …

Queer Sacrifice In Masterpiece Cakeshop, Jeremiah A. Ho

All Faculty Scholarship

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s …

Detention By Any Other Name, Sandra G. Mayson

Scholarly Works

An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.

This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and …

Aging On Air: Sex, Age, And Television News, Rebecca H. White

Scholarly Works

The best piece of advice I received when I began teaching law was to adopt Charlie Sullivan's and Mike Zimmer's casebook for my Employment Discrimination class. Before I became a law professor, I had no clue how important choosing the right textbook is, not only for the students but for the teacher. I also was unaware of how much I had to learn about a subject I thought I knew well. I had been litigating employment discrimination cases for several years, but when I began teaching, I quickly learned how much I did not know. Charlie's and Mike's casebook, through …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Andrea Woods, Sandra G. Mayson, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

Technology-Facilitated Gender-Based Violence: An Overview, Suzie Dunn

Articles, Book Chapters, & Popular Press

Technology facilitated gender-based violence (TFGBV) is a complex worldwide phenomenon with devastating results. Research to date shows that victim-survivors of intimate partner violence are tracked by their abusive partners who use technology to monitor their movements and communication. Many women journalists, human rights defenders and politicians face daily death threats and rape threats for speaking out about equality issues or for simply being a woman in a leadership role. Those with intersecting marginalized identities are at specific risk, with Black, Indigenous, and people of colour, LGBTQ+ people, and people with disabilities facing higher rates of attacks and concerted attacks that …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …