The Fundamental Nature of Title VII

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one\u27s own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The elements approach places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The super statute approach argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt\u27s Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The human rights approach shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court\u27s recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity

Work in the 21st Century- Creating the Social Architecture

Through the symposium and this issue, several proposals emerged for creating this social architecture. In his article, The Alien Tort Claims Act-A Vital Tool For Preventing Corporations From Violating Fundamental Human Rights, Terry Collingsworth discusses the use of the Alien Tort Claims Act ( ATCA ) as an avenue to find a forum, in this case United States courts, to hold corporations accountable for human rights abuses within workplaces

Three Perspectives on Workplace Harassment of Women of Color

In this address, I suggest a framework for understanding the ways in which issues of race and culture play a pivotal role in what we have thought of as sexual harassment. This framework views an incident of workplace harassment from the perspectives of the three key players: the harasser, the victim and the judicial system. From the viewpoint of the harasser, women of color appear to be less powerful, less likely to complain, and the embodiment of particular notions of sexuality. From the perspective of the women, attitudes in their community and lessons learned in their culture may make it more difficult for them to respond forcefully to the discrimination. Finally, the judicial system\u27s perspective on both women of color and relationships between men and women of color often influences the outcome of such cases

Introduction: The Thirteenth Amendment Through the Lens of Class and Labor

The articles in this Symposium are arranged in three clusters. One cluster focuses on the definition of slavery and involuntary servitude and the reach of the Thirteenth Amendment in prohibiting oppressive labor relationships. Another cluster analyzes several positive class-based rights that emanate from the Thirteenth Amendment. The final cluster examines contemporary examples of oppressive labor that could violate the Thirteenth Amendment’s proscription against slavery and involuntary servitude

Three Perspectives on Workplace Harassment of Women of Color

In this address, I suggest a framework for understanding the ways in which issues of race and culture play a pivotal role in what we have thought of as sexual harassment. This framework views an incident of workplace harassment from the perspectives of the three key players: the harasser, the victim and the judicial system. From the viewpoint of the harasser, women of color appear to be less powerful, less likely to complain, and the embodiment of particular notions of sexuality. From the perspective of the women, attitudes in their community and lessons learned in their culture may make it more difficult for them to respond forcefully to the discrimination. Finally, the judicial system\u27s perspective on both women of color and relationships between men and women of color often influences the outcome of such cases

“Liquidated Damages” in Guest Worker Contracts: Involuntary Servitude, Debt Peonage or Valid Contract Clause?

Non-citizen migrant workers who come to the United States on short term work visas, especially H-1B visas, often sign contracts that include a promise to work for the employer for a set period of time. These contracts may include a liquidated damages clause that requires the worker to pay the employer a large sum of money if they stop working for the employer, either to switch employers or to return home. Because these sums of money are so large relative to the worker\u27s ability to pay, they prevent workers from leaving employment. This paper examines whether those liquidated damages clauses are enforceable. It suggests that there are two different ways to analyze these clauses: a contract law approach and a free labor approach. The contract law approach, found in state contract law and the statute that regulates H-1B visas, serves the dual purposes of efficiency and compensation. The free labor approach, found in a variety of statutes passed pursuant to the Thirteenth Amendment to the United States Constitution, on the other hand serves the purposes of protecting individuals and society from the ills associated with modern day slavery. This article examines two different prohibitions contained in the free labor approach - prohibitions against involuntary servitude and debt peonage. It explores and explains the differences between these variations on unfree labor, with a focus on the purpose of prohibiting each arrangement. The article then returns to the problem of liquidated damages clauses in guest worker contracts to examine the implications of these competing approaches (contract law vs. free labor) for advocates, courts and Congress