Roads Less Traveled: U.S. Workplace Discrimination from the 1890s to the Present

Reviewing: Lauren B. Edelman, Working Law: Courts, Corporations, and Symbolic Civil Rights (University of Chicago Press 2016); Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right (Cambridge University Press 2014); Nancy Woloch, A Class By Herself: Protective Laws for Women Workers, 1890s–1990s (Princeton University Press 2015)

After Inclusion

What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity remains crucial to antidiscrimination theory and practice, significant employment discrimination problems can occur after a person is hired and becomes an employee. These problems transcend racial and sexual harassment. They include a range of subtle institutional practices and interpersonal dynamics that create systemic advantages for some employees and disadvantages for others. We predict that the next generation of race discrimination scholarship will engage these “after inclusion” workplace difficulties theoretically, empirically, and doctrinally

After Inclusion

What forms of discrimination are likely to be salient in the coming decade? This review flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, although determining what happens before and during the moment in which a prospective employee is excluded from an employment opportunity remains crucial to antidiscrimination theory and practice, significant employment discrimination problems can occur after a person is hired and becomes an employee. These problems transcend racial and sexual harassment. They include a range of subtle institutional practices and interpersonal dynamics that create systemic advantages for some employees and disadvantages for others. We predict that the next generation of race discrimination scholarship will engage these “after inclusion” workplace difficulties theoretically, empirically, and doctrinally

Overcoming Resistance to Diversity in the Executive Suite: Grease, Grit, and the Corporate Tournament

Once we open the corporate governance/human resources nexus to deeper inquiry, mutual scholarly interest in diversity and discrimination follows naturally. Firms have complex motives to take nondiscrimination and the promotion of diversity seriously. First, at least certain forms of discrimination are both unlawful and socially illegitimate and hence present threats of potential liability and injury to reputation. Second, human resources demands are such that attracting and motivating a diverse workforce is a competitive imperative. At the same time, however, offsetting economic forces may exist that favor subtle forms of discrimination and hostility to diversity, even if intentional and overt racial or gender-based bias is mostly outdated. In sum, the process of promoting diversity and ending discrimination, whether to avoid liability or simply to remain competitive, is a difficult challenge faced by many firms. It demands a close look at the efficacy of the internal decisionmaking and authority structures of the firm

“I Treat Everyone with Respect”: Debt Collection Attorneys as Agents of Institutionalized Racism in a Color-blind America

How do debt collection attorneys understand their work in light of increased regulation of the industry and its historic structural racism? Drawing on over sixty hours of observation in two small claims courts, analysis of three months of cases, and semi-structured interviews with eight debt collection attorneys, I argue that attorneys reinforce the instutionalized racism of debt collection through their use of color-blind racism. Attorneys understand the state of the debt collection industry as inevitable, denying inconsistencies in their practice that privilege white defendants. Additionally, attorneys view themselves as helping rather than exploiting debtors, in contrast to frequent aggressive action without regard to its consequences for defendants’ lives. Attorneys who act with greater flexibility demonstrate the potential for lawyers to challenge the institutional racism of debt collection. However, the historic and contemporary stigma associated with debt collection in addition to the lack of professional prestige available to these attorneys gives significance to color-blindness not only as an explanatory device but, also, as a stigma management strategy. The necessity of stigma management in addition to the lack of professional stability and autonomy for many debt collection attorneys complicates the potential for future change

Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law\u27s Duty of Care as Responsibility for Systems

Revisiting section 3.4.2 of Clark\u27s Corporate Law (\u27Duty of Care as Responsibility for Systems ) reminds us, however, that the internal controls story actually goes back many decades, and that many of the strategic issues that are at the heart of section 404 have long been contentious. My Article will briefly update Clark\u27s account through the late 1980s and 1990s before returning to Sarbanes-Oxley and rulemaking thereunder by the SEC and the newly created Public Company Accounting Oversight Board ( PCAOB ). My main point builds on one of Clark\u27s but digs deeper. Internal controls requirements, whether federal or state, are incoherent unless and until one articulates clearly for whose benefit they exist, and to what end. There are, in fact, a number of competing articulations. The failure to identify a single and coherent rationale creates significant uncertainty, which has been exploited by players in the legal, accounting, consulting, and information technology fields. Companies are probably spending more time and resources on 404 compliance than a reasonable reading of the legislation and the rules necessarily requires, heavily influenced by those who gain from issuer over-compliance. This rent-seeking compromises the political viability and substantive quality of what is at the heart a beneficial statutory reform