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Standing under Title VII: Legal Allyship & Hostile Work Environment as a Concrete Injury
By: Eve HillmanAssociate Editor, Vol. 26 In Childress v. City of Richmond, seven white male police officers sued their employer on hostile work environment grounds under Title VII.[1] Their claim stemmed from allegedly racially discriminatory and sexually harassing conduct by their lieutenant directed towards Black female…
Executive Order Banning Anti-Discrimination Training Makes a Case for Continuing CRT Training
By Jasmine BenjaminAssociate Editor, Vol. 26 On September 22, 2020, President Trump issued an executive order entitled, “Executive Order on Combating Race and Sex Stereotyping.”[i] The order prohibits government contractors from conducting workplace anti-bias training that is based on Critical Race Theory (CRT).[ii][iii] The executive order takes…
What the 2018-19 Teacher Walkouts Mean for Labor in a Post-Janus World
By Donna Cao Associate Editor, Vol. 24 The 2018 teacher movement, monikered “Red for Ed,” is the first post-Janus demonstration of the future of the U.S. education labor movement. Educators wear the color red to represent their advocacy for increased funding for public schools, many of which operate in the red, and to describe the teacher walkouts which began in states with Republican-controlled legislatures.[1] In June 2018, the Supreme Court held in Janus v. American Federation of State, County, and Municipal Employees that public-sector union workers must affirmatively opt-in to paying dues for union representation, a decision that was predicted to decrease union membership, financing, and organizing.[2] Prior to Janus, public-sector unions were entitled to collect “fair-share” or “agency” fees from employees who declined to join the union. Such fees paid for the non-political activities that benefited all employees covered by the union contract. In the wake of Janus, teachers’ unions feared decreased organizing power and influence at the bargaining table.[3] “Red for Ed” exemplifies teacher union activism in the face of Janus and the continued, adaptable strength of teachers unions when educators are committed, active, and aware. The movement transcends union demands for higher pay and school funding to represent a cry for a more equitable U.S. public education system, one which can create access and opportunity to those groups which are most disproportionately impacted by disparities in education funding, including women and minority educators and students.[4]
Arbitrary Paternalism and the SEC Accredited-Investor Standard
By Leah Duncan Associate Editor, Vol. 24 In developing the current accredited investor requirements to balance competing considerations of investor protection and capital formation, the Securities and Exchange Commission has used proxies that give rise to discrimination against communities of color.[1] While this problem is on its face economic in nature, I will approach it through the lens of race and ethnicity to illuminate the ways in which the accredited investor requirement excludes communities of color from avenues to wealth. Pursuant to the Securities Act of 1933, the SEC requires that a company or private fund either register the sale or offering of their securities or be exempted based on a safe harbor regulation. Section 4(a)(2) of the Act provides an exemption for private sales which are further governed by Regulation D requirements that dictate purchasers must be “accredited investors.” So, what does it mean to be an accredited investor? The SEC defines an accredited investor as anyone who “has a net worth over $1 million alone or together with a spouse” or someone who “has earned income that exceeded $200,000 or $300,000 together with a spouse in each of the prior two years, and reasonably expects the same for the current year.”[2] In order for a person to invest in a private security offering, they must comply with at least one of these requirements. The goals of these requirements include protection of investors and the facilitation of capital formation.[3] The SEC has had to grapple with how to balance these two aims. Over-protection of investors could make it more burdensome for some investors to participate in the capital markets. While too much focus on facilitating capital formation may leave investors prey to heightened risk of financial harm. With these concerns in mind, the SEC has decided that income and net-worth “serve as proxies for financial experience, sophistication, and adequate bargaining power.”[4]Whiteness at Work
How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized phenomenon. This Article maps current cases dealing with racial discrimination between Whites, arguing that these cases suffer from under-theorization stemming from courts’ tendency to de-racialize Whiteness and see White people as ‘not being of any race.’ This tendency has led to a limited doctrine of same-race discrimination between Whites, affording it recognition only when racial minorities are involved. Acknowledging Whiteness as a racial project— the product of White supremacy—may enable courts to better theorize intra-White discrimination. Such possible theorization is developed via the stereotype doctrine. Accordingly, same-race discrimination and/or harassment between Whites is often a result of Whites policing other Whites to conform to stereotypes and expectations regarding Whiteness, i.e., how White people should act or with whom they may associate. Recognizing dynamics of intra-White racialization and the racial work behind Whiteness, this Article concludes, is aligned with Title VII’s antisubordination goals, as it is in the interest of racial minorities as well.
Latina Lawyers: Underrepresented and Overqualified
By Cleo Hernandez Associate Editor, Volume 23 Editor-in-Chief, Volume 24 In 2009, Justice Sotomayor became the first ever Latina to serve on the United States Supreme Court. Gender violence, sexual harassment, and feminism have all been dancing around on the center stage of world politics lately, as displayed by the traction that the #MeToo movement has gained on both social and mainstream media platforms. And indeed, immense bravery is required of every woman and man that speaks out as a victim of sexual harassment or domestic violence. However, packaging these complex issues into a hashtag, or a sound bite, or a news article has inevitably erased the nuances that define modern day feminism, and that affects women of color. In addition, the current national controversy about immigration has become overtly racialized and criminalized putting certain racial and ethnic groups in the spotlight. These national moods compound to make today a particularly tough time to be a Latina in America. Especially if one is a Latina in a profession with few peers of a similar racial and gender identity. Latinas comprise less than two percent of attorneys in the United States.[1] Even without the recent publicity surrounding these new political conversations, a Latina lawyer faces a career path filled with race, class, and gender-based obstacles.[2] A lack of role models and financial resources can be a barrier for Latinas to even begin to consider attending law school.[3] Once in law school and as an attorney, the lack of Latinas in the profession can feel isolating, and can create low self-esteem in Latinas.[4] There is hardship involved when assimilating and fitting into the law school culture, being tokenized, and being afraid to be labeled as either too passive, or as a “fiery” or “hot-headed” Latina.[5] Furthermore, microaggressions and overt racism can make it difficult to navigate courtrooms and law firms.[6] Latina lawyers report oftentimes being misidentified in the courtroom as the bailiff, the interpreter, the secretary, or the defendant.[7] Additionally, when a Latina lawyer is promoted, she will perceive (or hear directly from others) that her coworkers see her as not qualified for the new position, and believe that she only received the promotion because she was a minority or a woman.[8]“When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability
This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of color without disabilities or by White people with disabilities due to the intersection of their race and disability. Yet often our legal and cultural institutions have been reluctant to acknowledge the intersectional experience, preferring instead to understand people by a singular trait like their race, gender, or disability. While courts have recognized the validity of intersectional discrimination claims, they have offered little guidance on how to articulate and prove the claims, leaving compound and complex forms of discrimination unaddressed. This Article thus offers an analysis of how courts and litigants should evaluate claims of workplace discrimination based on the intersection of race and disability, highlighting in particular the experience of Black disabled individuals. Only by fully embracing intersectionality analysis can we realize the potential of antidiscrimination law to remedy the harms of those most at risk of being denied equal opportunity.Interracial advocacy and the role of attorney: reflections on the power differentials coloring client interactions (Part 2/2)
This blog is the second of two parts. Part 1 unpacks the attorney privilege and considers how it can affect attorney-client relationships. Part 2 explains the impact of power differentials, identities, and attorney privilege on advocacy and offers suggestions to strengthen the law school curriculum. By Hazel Caldwell-Kuru…Interracial advocacy and the role of attorney: reflections on the power differentials coloring client interactions (Part 1/2)
This blog is the first of two parts. Part 1 unpacks the attorney privilege and considers how it can affect attorney-client relationships. Part 2 explains the impact of power differentials, identities, and attorney privilege on advocacy and offers suggestions to strengthen the law school curriculum. By Hazel Caldwell-Kuru…RESPONSE: The bamboo ceiling cannot be separated from wider inequality
By Jennifer Chun Associate Editor, Vol. 21 In the October 3rd issue of The Economist, an article entitled “The model minority is losing patience” speaks of the rising “trend” of Asian Americans more vigorously fighting discrimination, especially in academia. After introducing some of the pending lawsuits filed by…