Category Archives: Discrimination

Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights

Source: Robynn J.A. Cox, Economic Policy Institute, January 16, 2015

This is part of a series of reports from the Economic Policy Institute outlining the steps we need to take as a nation to fully achieve each of the goals of the 1963 March on Washington for Jobs and Freedom. Visit for updates and to join the Unfinished March.

From the summary:
On the surface, crime and punishment appear to be unsophisticated matters. After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans. The United States has a dual criminal justice system that has helped to maintain the economic and social hierarchy in America, based on the subjugation of blacks, within the United States. Public policy, criminal justice actors, society and the media, and criminal behavior have all played roles in creating what sociologist Loic Wacquant calls the hyperincarceration of black men. But there are solutions to rectify this problem.

To summarize the major arguments in this essay, the root cause of the hyperincarceration of blacks (and in particular black men) is society’s collective choice to become more punitive. These tough-on-crrime laws, which applied to all Americans, could be maintained only because of the dual legal system developed from the legacy of racism in the United States. That is, race allowed for society to avoid the trade-off between societies “demand” to get tough on crime and its “demand” to retain civil liberties, through unequal enforcement of the law. In essence, tying crime to observable characteristics (such as race or religious affiliation) allowed the majority in society to pass tough-on-crime policies without having to bear the full burden of these policies, permitting these laws to be sustained over time.

A Picture is Worth One Thousand Words: Body Art in the Workplace

Source: Aimee Dars Ellis, Employee Responsibilities and Rights Journal, Online First, October 26, 2014
(subscription required)

From the abstract:
Despite the large number of adults with tattoos or other forms of body art, stereotypes of individuals who have body modification, most inaccurate, abound. Tattooed and pierced persons are viewed as irresponsible, unprofessional, and less qualified than their un-modified peers. While body modifications are not protected under federal laws—or laws in other countries—prejudice and discrimination based on body art can have significant repercussions for individuals and their organizations. Using qualitative data culled from message board postings, this paper discusses the stereotypes surrounding body art and investigates the possible sources of these beliefs. It describes the impact of these stereotypes on tattooed, pierced, and otherwise modified individuals, exploring the relationship between body art, identity, and authenticity. It wrestles with the impact prejudice and stigma have on modified employees and potential employees, considering self-esteem, performance, and other employee outcomes. Finally, it discusses what employees with body art and organizations can do to promote a positive, compassionate work environment. The paper concludes with a discussion of managerial implications and suggestions for future research.

Gender as a Boundary Condition of Models of Union Women’s Mental Health and Participation in Relation to Perceived Union Tolerance for Sexual Harassment

Source: Steven Mellor, Leslie M. Golay, Employee Responsibilities and Rights Journal, Online First September 2, 2014
(subscription required)

From the abstract:
Do models of union women’s mental health and union participation extend to union men? To answer this question, we attempted to replicate two supported models using data from union men (N = 150): The interactional effect model of union women’s mental health and the conditional indirect effect model of women’s union participation (Mellor and Golay in Employee Responsibilities and Rights Journal, 2014a, Journal of Psychology: Interdisciplinary and Applied, 148, 73–91, 2014b). In both models, perceived union tolerance for sexual harassment is positioned as a moderator of the predictor-outcome relationship. Retests of the models did not suggest favorable replication. As such, neither model was extended to men. Implications for sexual harassment theory and union intervention are discussed.

University Employee Sexual Harassment Policies

Source: Marcelline Fusilier, Charlie Penrod, Employee Responsibilities and Rights Journal, Online First, October 9, 2014
(subscription required)

From the abstract:
The purpose of the study was to investigate the quality and online availability of policies for employee sexual harassment prevention. The availability and characteristics of employee sexual harassment policies were compared across the following types of colleges and universities: (a) government sponsored state nonprofit, (b) private nonprofit, and (c) private for-profit. Web sites of 496 U.S. colleges and universities were searched. Available policies were collected and coded for whether they included the following: (a) mandatory supervisory reporting of harassment, (b) availability of informal and formal complaint procedures, and (c) availability of multiple reporting options to ensure harassing supervisors can be bypassed. Each school web site was also searched for discussion of the availability of sexual harassment training for employees. Results suggested that only 23 % of for-profit universities made their policies publicly available on their web sites versus 99 % of state universities. Seventy percent of available university harassment policies/web sites were deficient on one or more of the characteristics studied. Based on these findings, it appears that universities should increase both the quality and accessibility of their sexual harassment policies as well as the availability of anti-harassment training.

Diversity and the High Tech Industry

Source: Dorothy A. Brownm Emory University School of Law, Emory Legal Studies Research Paper No. 14-296, 2014

From the abstract:
This symposium asks us to look at race and gender inequality fifty years after the Civil Rights Act of 1964. The twenty-first century battle lines will not be about eliminating “blacks need not apply” advertisements, or making obsolete separate drinking fountains. Given how that type of public and explicit discrimination is rarely tolerated, racism and sexism have mutated into more subtle and socially acceptable forms that may be eradicated in part when we address implicit or unconscious bias. Laws that were effective at eradicating explicit racism have proven to be quite ineffective at combating unconscious bias.

Recent newspaper accounts have highlighted the lack of Blacks and Latinos working in high tech firms as well as serving on their boards of directors based on the firms self-disclosure of such data. Not surprisingly, those articles reach the same conclusion because they are based upon the same bleak facts: a majority of workers in the high tech industry are white and male as is the majority of those in leadership and executive positions along with members of the boards of directors. As a general proposition, the executives of the high tech companies express distress at their diversity employment data, and all desire to improve in the future. They acknowledge the “pool problem” and the racial skills gap which becomes obvious when looking at college graduates with the technical skills required by the industry. The industry argues that the pool of applicants with the requisite technical skills are overwhelmingly white males which leads to very few Black and Latino graduates or White women who can code or have other skills that the high tech firms need. That in turn leads to non-diverse hiring pools for open positions which merely perpetuates the lack of racial and gender diversity in the workforce.

Judicial Review of the EEOC’s Duty to Conciliate

Source: Stephanie M. Greene, Christine Neylon O’Brien, Boston College Law School Legal Studies Research Paper No. 340, November 17, 2014

From the abstract:
Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.

Choice at Work: Young v. United States Parcel Service, Pregnancy Discrimination, and Reproductive Liberty

Source: Mary Ziegler, Florida State University – College of Law, Public Law Research Paper No. 721, November 13, 2014

From the abstract:
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.

A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.

The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
The Court heard oral argument in Young v. UPS, and the transcript is now available on the Court’s website.

Fakers and Floodgates

Source: Sandra Sperino, Suja A. Thomas, Stanford Journal of Civil Rights and Civil Liberties, No. 10, 2014

From the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.

The Year in Inequality: Racial disparity can no longer be ignored

Source: Ned Resnikoff, December 16, 2014

Analysis: The racial wealth divide is a persistent fact of American life and getting worse. …. In absolute terms, black people are not as poor as they were before the civil rights era, according William Darity Jr., a professor of public policy at Duke University. But judging black wealth compared with white wealth tells a different story. ….

Ferguson: Race and Justice in the U.S.

Source: Sweta Vohra, Sebastian Walker, Al Jazeera America, Fault Lines, December 11, 2014

In the weeks following the Michael Brown shooting, the militarized police response to demonstrations by local black communities made national headlines. But the anger that initially poured out onto the streets was fueled by decades of feeling marginalized and targeted by law enforcement for simply being African-American. Fault Lines travels back to Ferguson to investigate why the relationship between the police and local black communities is broken—and if those sworn to protect operate with impunity….

Timeline: A legacy of segregation in St. Louis, Ferguson
Source: Emily Marie Gibson, Al Jazeera America, Fault Lines, December 12, 2014 4:00PM ET

What sowed the racial disharmony in St. Louis and its environs?

The St. Louis region has a long history of systemic racial discrimination in its urban planning policies, according to Colin Gordon, an expert on urban development and a professor at the University of Iowa. These policies have impacted communities, like Ferguson and the surrounding municipalities. And that legacy of segregation has become an integral part of the story of the shooting of Michael Brown by Darren Wilson. “We could look at segregation as just a pattern of where people settled on the ground, but I think its also important to recognize it as a pattern of intentional segregation,” said Gordon, who is also the author of the book Mapping Decline: St. Louis and the Fate of the American City. “This was crafted meticulously through legal and policy instruments as a way of controlling where the population fell by race and by income.” A combination of factors, including blatant discrimination by real estate agents in St. Louis, covenants restricting the buying and selling of property according to race and a series of policies on urban redevelopment, public housing and zoning contributed to the intense racial stratification. Some of the major turning points that influenced the region’s racial demographics are outlined here.