…Despite progress in the half century since Brown v. Board of Education and the demise of the “separate but equal” doctrine, harmful and costly levels of discrimination, racism, and racial harassment continue to exist, including in the workplace. Attempts to redress these ills, particularly in the employment setting, have been cumbersome and often ineffective for aggrieved employees as they have sought redress either administratively through the U.S. Equal Employment Opportunity Commission (EEOC), or in the federal courts. One indication of the dismal prospects for employees injured by racial discrimination and harassment is that, in spite of diligent efforts (and until recently a shrinking staff), the EEOC backlog of cases numbered 86,338 as of September 2010. Furthermore, when employee-plaintiffs seek to pursue their cases through state or federal administrative agencies or courts, the standards established in federal statutes and court rulings present a daunting “web” of choices for them. The choices are complex for defendant employers and their respective counsel as well. This confusion is most acutely felt in the case of employees who have experienced severe injuries such as race-based traumatic stress (RBTS) resulting from workplace harassment, as they seek just compensation for their injuries and for the harassment to cease.
This Article proposes a legal and policy framework for more effective prevention of and legal redress for workplace harassment and discrimination. This approach focuses on employees who have suffered a severe, demonstrable emotional and psychological injury due to harassment or discrimination, i.e. race-based traumatic stress (RBTS). The Article begins with the assertion that America is not in a “post-racial” stage and that racism and racial harassment, both intentional and more subtle, are unfortunately still present in various settings including the workplace. A brief overview of current federal employment law related to racial harassment and discrimination, and its deficits, is provided, and the use of tort concepts to complement and strengthen current avenues to legal redress is proposed and discussed. Finally, this Article proposes a comprehensive approach to workplace harassment and discrimination….