Category Archives: Discrimination

PREA and LGBTI Rights

Source: Terry Schuster, American Jail Association (AJA), March 7, 2014

Every State in the country is attempting to show that their prisons, jails, and juvenile facilities comply with the new Federal regulations on sexual abuse and harassment. Following the unanimous passage of the Prison Rape Elimination Act (PREA) and another decade of research, horrifying testimony, and several drafts of regulations, a set of rules that aims to prevent and address sexual violence now applies to nearly all secure lock-up facilities.

Because lesbian, gay, bisexual, transgender, and intersex (LGBTI) inmates are particularly at risk for sexual victimization in these settings, the rules require States to adopt fairly progressive policies to protect these inmates from abuse and harassment. Creating a safe environment for LGBTI inmates requires far more than taking steps to prevent rape in prisons. Correctional facilities will have to prohibit and directly address homophobic slurs and other verbal harassment; they will have to discipline and relocate the perpetrators of the harassment—rather than isolating the victims for their own protection—and they will have to consider transgender inmates’ views regarding whether they feel safer and more comfortable living with males or females. …

Correctional systems that want to aim higher than the basic protections required for Federal funding by going further to prevent and address sexual abuse and harassment behind bars will also affect public safety by improving inmates’ prospects for success once released. In this article, I discuss the basic protections for LGBTI inmates that every juvenile and adult correctional system will need to put in place and offer some extra provisions they should adopt to become models of best practice….

Detaining Democracy? Criminal Justice and American Civic Life

Source: Edited by: Christopher Wildeman, Jacob S. Hacker and Vesla M. Weaver, ANNALS of the American Academy of Political and Social Science, January 2014
(subscription required)

From the extract:
“We Mail Books to Prison.” So reads the sign adorning the window of a bookshop tucked away in a struggling corner of Trenton, New Jersey. It communicates the obvious—an available service—but also something less innocuous: many of the shop’s customers have loved ones in prison. It communicates something else, too: the effects of prison are not as distant from this troubled neighborhood as the prison itself might be. Following the opposite course of the books, the effects of incarceration feed back into the communities from which prisoners come and to which most of them will return. In a nation where the capacity to punish and surveil has witnessed stunning expansion over the last generation, “We Mail Books to Prison” is a reminder that the state’s role as arbiter and enforcer of criminal law now represents one of the most powerful influences on the social and civic fabric of communities across the nation, affecting everything from the socialization of children to the political participation of residents.

We live in the midst of what may be the most visible and transformative government intervention since the 1960s. The number of prisoners has multiplied fivefold in just 35 years. At the same time, other types of criminal justice contact—from the use of misdemeanor charges (Natapoff 2012) to stop-and-frisks (to brief detentions based on reasonable suspicion of criminal activity rather than probable cause)—have dramatically increased as well (Fagan et al. 2010). In the words of historian William Novak, “The power of the U.S. government to regulate, study, order, discipline, and punish its citizens . . . has never been greater” (2008, 760).

This power has not been felt equally by all Americans. For most, it is virtually invisible. For men of color—especially those who reside in the poorest neighborhoods—and for the people close to ….

Articles include:
Incarceration and Social Inequality: Challenges and Directions for Future Research
by Kristin Turney

Mass Imprisonment and Trust in the Law
by Christopher Muller and Daniel Schrage

How the Criminal Justice System Educates Citizens
by Benjamin Justice and Tracey L. Meares

Detention, Democracy, and Inequality in a Divided Society

by Glenn C. Loury

Do Voting Rights Notification Laws Increase Ex-Felon Turnout?
by Marc Meredith and Michael Morse

Locked In? Conservative Reform and the Future of Mass Incarceration
by David Dagan and Steven M. Teles

Incarceration, Inequality, and Imagining Alternatives
by Bruce Western

Mass Incarceration and American Democracy
Source: Scholars Strategy Network, Scholar Spotlight, 2014

Congressional Authority to Protect Voting Rights after Shelby County and Arizona Inter Tribal

Source: Franita Tolson, Florida State University – College of Law, Public Law Research Paper No. 673, February 14, 2014

From the abstract:
This Essay, written for the 2014 AALS program on “The Right to Vote: From Reynolds v. Sims to Shelby County, and Beyond,” attacks the U.S. Supreme Court’s narrow view of congressional authority to regulate voter qualifications adopted in Shelby County v. Holder and Arizona v. Inter Tribal Council, and argues that Congress has significant authority over voter qualifications under Article I, section 5, which allows it to judge the elections of its members. Although Congress exercises its authority under this provision after the election has taken place, it remains a source of authority that the Court should have considered in its attempt to craft competing paradigms of state and congressional power over elections in these decisions. By examining election contests from the 47th Congress, the argument herein sheds light on the scope of congressional authority over elections by analyzing Congress’s willingness to intervene in state level disputes over congressional seats. A review of the historical record reveals that the House of Representatives often overturned elections in which state or federal law was not complied with in determining the winner, even in disputes that dealt primarily with voter qualifications. Both Shelby County and Arizona Inter Tribal tell a woefully incomplete story about congressional authority over elections, ignoring that the House’s authority to resolve election contests under state and federal law can be just as powerful as the state’s authority to determine the qualifications of electors ex ante.

Retaliation in an EEO World

Source: Deborah L. Brake, University of Pittsburgh – School of Law, U. of Pittsburgh Legal Studies Research Paper No. 2014-04, January 21, 2014

From the abstract:
This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies and complaint procedures. Reviewing the sociolegal scholarship on the structure and functioning of the EEO workplace reveals important insights into how retaliation law operates. This Article contends that, considered against the backdrop of how employer policies channel employee complaints, the picture of retaliation law for employees is not nearly as rosy as the Court’s decisions have led legal scholars to believe. Focusing on the interplay between retaliation doctrine and employers’ internal discrimination policies, the Article demonstrates that the lesser level of protection afforded to internal discrimination complaints creates stark dilemmas for employees who follow employer policies to complain about perceived inequality in the workplace. Two doctrines in particular, the reasonable belief doctrine and the notice requirement, clash with the role of employer policies in shaping employee perceptions of and responses to discrimination in the workplace. The Article concludes by offering a proposal for revamping retaliation law to better accommodate the realities of the EEO workplace.

After Dothard: Female Correctional Workers and the Challenge to Employment Law

Source: Brenda V. Smith, Melissa C. Loomis, American University, Washington College of Law Research Paper No. 2014-7, 2014

From the abstract:
This article examines a profession where women have made great strides – corrections. Using an equality framework, corrections and other non-traditional professions were the first target of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than men to hold these positions and be married.

Women’s entry into correctional spaces has had several unintended consequences. First, it has complicated the experiences of other marginalized groups in those institutions. In particular, women’s progress in correctional institutions has increased female inmates’ exposure to supervision by male staff, which places them at greater risk for sexual victimization. Second, it has diminished privacy of both male and female inmates in custodial settings. Third, it has resulted in female correctional employees’ disproportionate involvement in prohibited intimate contact with male inmates and youth in custody. These sexual interactions have resulted variously in termination, resignation, prosecution, procreation, and litigation; complicating feminist theories of power, consent, and equality. Finally, it has complicated key employment law jurisprudence.

This article examines three areas of law and how female correctional staff’s roles have complicated those doctrines: (1) privacy for inmates under the Fourth and Eighth Amendments; (2) the bona fide occupational qualification (“BFOQ”) doctrine; and (3) sexual harassment under Title VII.

Labor Unions and Title VII: A Bit-Player at the Creation Looks Back

Source: Theodore J. St. Antoine, University of Michigan Law School, Public Law Research Paper No. 388, February 27, 2014

In A Nation of Widening Opportunities? The Civil Rights Act at Fifty, edited by S. R. Bagenstos and E. Katz. University of Michigan Press, 2014, Forthcoming

From the abstract:
The author, an AFL-CIO lawyer when the 1964 Civil Rights Act was passed, discusses varying views of the role of organized labor in securing the inclusion of Title VII (EEO) in the Act. The “disparate impact” theory of discrimination and the treatment of seniority and affirmative action under Title VII are also analyzed.

Pluralistic Ignorance and the Flexibility Bias: Understanding and Mitigating Flextime and Flexplace Bias at Work

Source: Christin L. Munsch, Cecilia L. Ridgeway and Joan C. Williams, Work and Occupations, Vol. 41 no. 1, February 2014
(subscription required)

From the abstract:
Workers who request flexibility are routinely stigmatized. The authors experimentally tested and confirmed the hypothesis that individuals believe others view flexworkers less positively than they do. This suggests flexibility bias stems, in part, from pluralistic ignorance. The authors also found that flexplace requesters were stigmatized significantly more than flextime requesters. Given this finding, they recommend research distinguish between different types of flexwork. In a second study, they assessed whether exposure to information suggesting organizational leaders engage in flexible work reduced bias. They found that when the majority of high-status employees work flexibly, bias against flextime (but not flexplace) workers was attenuated.

Sexual Harassment Still ‘Normal’ in Low-Wage Jobs

Source: Jane Slaughter, Labor Notes, March 5, 2014

Since sexual harassment is about power, not sex, it’s not surprising that low-wage women in lousy jobs get a lot of it. The Equal Employment Opportunity Commission says the restaurant industry is the largest source of sexual harassment claims. And the Coalition of Immokalee Workers (CIW) finds harassment of women farmworkers to be pervasive.

In a national survey of 4,300 restaurant workers by the worker center Restaurant Opportunities Centers United, more than one in 10 workers reported that they or a co-worker had experienced sexual harassment. ROC says even this creepy figure is likely an undercount….

…ROC reviewed four years of EEOC sexual harassment settlements and verdicts in the restaurant industry and found that cases were filed primarily against well-known chains, including McDonald’s (the worst with 16 percent of the cases), KFC, Sonic, IHOP, Applebee’s, Cracker Barrel, Ruby Tuesday, and Denny’s.

Most often, workers were abused and harassed daily and faced some form of retaliation for complaining….

David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States

Source: Michael J. Perry, Emory Legal Studies Research Paper No. 13-264, November 6, 2013

From the abstract:
Although the Supreme Court’s ruling in United States v. Windsor (2013) was correct, the majority opinion (per Justice Kennedy) was confused and confusing. Moreover, the majority opinion was gratuitously insulting to many who oppose the legalization of same-sex marriage. Predictably, Justice Scalia, in his dissenting opinion, used the majority’s insulting opinion to good rhetorical effect.

In this lecture, which I delivered at the University of Illinois College of Law, in November 2013, as the David C. Baum Memorial Lecture on Civil Liberties and Civil Rights, I explain why the exclusion policy — excluding same-sex couples from civil marriage — violates the constitutional law of the United States. I argue, in the lecture, that the exclusion policy violates not the right to equal protection but, instead, a different constitutional right.

I hope that readers interested in evaluating my argument in this lecture will read an essay that this lecture references and on which my argument in the lecture relies: Michael J. Perry, “Freedom of Conscience as Religious and Moral Freedom,” Journal of Law and Religion (forthcoming, 2014), available at That essay is a modestly revised version of a chapter in my new book, Human Rights in the Constitutional Law of the United States (2013), the introduction to which is available at