Testing the Limits of Antidiscrimination Law: The Business, Legal, and Ethical Ramifications of Cultural Profiling at Work

While courts have rarely ruled in favor of plaintiffs bringing discrimination claims based on identity performance, legal scholars have argued that discrimination on the basis of certain cultural displays should be prohibited because it creates a work environment that is heavily charged with ethnic and racial discrimination. Drawing upon empirical studies of diversity management, stereotyping, and group dynamics, we describe how workplace cultural profiling often creates an unproductive atmosphere of heightened scrutiny and identity performance constraints that lead workers (especially those from marginalized groups) to behave in less authentic, less innovative ways in diverse organizational settings

Rehabilitating Statistical Evidence

Recently, the practice of deciding legal cases on purely statistical evidence has been widely criticised. Many feel uncomfortable with finding someone guilty on the basis of bare probabilities, even though the chance of error might be stupendously small. This is an important issue: with the rise of DNA profiling, courts are increasingly faced with purely statistical evidence. A prominent line of argument—endorsed by Blome-Tillmann 2017; Smith 2018; and Littlejohn 2018—rejects the use of such evidence by appealing to epistemic norms that apply to individual inquirers. My aim in this paper is to rehabilitate purely statistical evidence by arguing that, given the broader aims of legal systems, there are scenarios in which relying on such evidence is appropriate. Along the way I explain why popular arguments appealing to individual epistemic norms to reject legal reliance on bare statistics are unconvincing, by showing that courts and individuals face different epistemic predicaments (in short, individuals can hedge when confronted with statistical evidence, whilst legal tribunals cannot). I also correct some misconceptions about legal practice that have found their way into the recent literature

The Poverty of Posner\u27s Pragmatism: Balancing Away Liberty After 9/11

This review of Richard Posner\u27s Not a Suicide Pact: The Constitution in a Time of National Emergency argues that Posner\u27s particular brand of pragmatic utilitarianism is particularly ill-suited to constitutional interpretation, as it seems to negate the very idea of precommitment that is so essential to constitutionalism. Instead, Posner treats the Constitution as little more than an invitation to pragmatic policy judgment, and then employs that judgment through speculative cost-benefit balancing to find constitutionally unobjectionable most of what the Bush Administration has done thus far in the war on terror, including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling. Indeed, Posner\u27s Constitution would permit the Administration to go much further than it has - among other things, he defends indefinite preventive detention, banning Islamic extremist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information. All of this is permissible, Posner argues, because unless the Constitution bend[s] in the face of threats to our national security, it will break. Ironically, Posner reaches these results with a constitutional theory more in keeping with Chief Justice Earl Warren than Justice Antonin Scalia. Eschewing popular conservative attacks on judicial activism, Posner argues that given the open-ended character of many of the Constitution\u27s most important terms, it is not objectionable, but inevitable, that constitutional law is judge-made. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards. But having rejected textualism and originalism, Posner proceeds unwittingly to offer a book-length demonstration of what textualists and originalists most fear from constitutional theorists who emphasize the document\u27s open-ended and evolving character. In Posner\u27s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others. The review first discusses Posner\u27s analysis of several specific security-liberty issues, in order to illustrate how his method works in concrete scenarios. I then turn to the broader implications his theory has for constitutional law, which in my view are quite dangerous

Informed Consent to Address Trust, Control, and Privacy Concerns in User Profiling

More and more, services and products are being personalised or\ud tailored, based on user-related data stored in so called user profiles or user\ud models. Although user profiling offers great benefits for both organisations and\ud users, there are several psychological factors hindering the potential success of user profiling. The most important factors are trust, control and privacy\ud concerns. This paper presents informed consent as a means to address the\ud hurdles trust, control, and privacy concerns pose to user profiling

Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman

Black women in the United States are the frequent targets of bias-filled interactions in which aggressors: (1) denigrate Black women; and (2) blame those women who elect to challenge the aggressor’s acts and the bias that fuels them. This Article seeks to raise awareness of these “aggressive encounters” and to challenge a prevailing narrative about Black women and anger. It examines the myriad circumstances (both professional and social) in which aggressive encounters occur and the ways in which these encounters expose gender and racial hierarchies. It then explores how the intersectional nature of Black women’s identities triggers a particularized stereotype or trope of the “Angry Black Woman” and explains how this trope is often invoked in aggressive encounters to deflect attention from the aggressor and to project blame onto the target. After discussing the harmful effects of aggressive encounters and the absence of effective legal mechanisms to address them, the Article sets forth tangible steps that individuals can take to minimize their incidence

Latino Inter-Ethnic Employment Discrimination and the Diversity Defense

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists and they are not necessarily interested in the group-politics agenda of coalition building? This article focuses on the implications of increased diversity for the operation of employment discrimination law

Latino Inter-Ethnic Employment Discrimination and the Diversity Defense

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists and they are not necessarily interested in the group-politics agenda of coalition building? This article focuses on the implications of increased diversity for the operation of employment discrimination law