All content tagged with: Workplace Discrimination

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  • 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.

  • “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.

  • Keynote Remarks

    In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the workforce, to the marketplace—perpetuates the inequality we see in our justice system. And for those already living paycheck-to-paycheck, a single incident—whether an arrest by the police or a fine by the court—can set off a downward spiral. It can lead to a cycle of profound problems that ruin lives and tear apart families. Problems like losing your health care, your job, your children, or your home. As someone who focuses on civil rights work and criminal justice reform, I see these problems every day. But today in America, I also see a country on the cusp of change. Across a wide range of political perspectives, policymakers and advocates have come together to bridge divides and support meaningful criminal justice reform. And I’m proud to say that this administration—and this Department of Justice—has made criminal justice reform a top priority. We believe that our country needs, and deserves, a criminal justice system that more effectively protects our communities, more fairly treats our people, and more prudently spends our resources. And we believe that no matter how deeply rooted and long-standing the injustices that underlie inequality in our criminal justice system—with clear thinking, hard work and collaboration—we can make real progress.

  • Coercive Assimilationism: The Perils of Muslim Women’s Identity Performance in the Workplace

    Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and antidiscrimination literature, this Article argues that in order for courts to keep up with discrimination they should expansively interpret Title VII to address identity-based discrimination rooted in negative implicit stereotypes of low status groups. In doing so, the Article brings to the forefront Muslim women’s identity performance at the intersection of religion, race, gender, and ethnicity—a topic marginalized in the performativity literature. I argue that Muslim female employees at the intersection of conflicting stereotypes and contradictory identity performance pressures associated with gender, race, and religion are caught in a triple bind that leaves them worse off irrespective of their efforts to accommodate or reject coercive assimilationism at work.

  • Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the ‘Currently Employed’ Requirement

    Countless people struggle to find a job in a competitive job market despite possessing solid qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. These groups are often unemployed longer than other job seekers. These groups also suffer the disparate impact of job advertisements that require "current employment" as a prerequisite for hiring. The harsh reality is that the longer a job seeker is unemployed, the closer a job seeker becomes to becoming permanently unemployed. Job advertisements that require "current employment" exacerbate the problem. However, traditional disparate impact analysis under the civil rights laws can help to address some of the issues faced by these long-term unemployed job seekers.

  • Racial Profiling: “Driving While Mexican” and Affirmative Action

    This Essay will focus on "racial profiling" not just in the way many people think about the term-that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black"-but also in the context of "affirmative action"-namely, using race as a factor in employment and educational decisions. More broadly, then, the author wants us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual," which moves us slightly away from more pejorative notions of the phrase that have seeped into the national consciousness.