The Rule of Law: China's Skepticism and the Rule of People

Published in cooperation with the American Bar Association Section of Dispute Resolutio

UNWRAPPING RACIAL HARASSMENT LAW

This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study’s analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise. Parts II and III present a clear picture of how racial harassment law has played out in the courts—who are the plaintiffs and defendants, the nature of the claims, who wins and loses, and what factors affect those outcomes. We consider dozens of characteristics of the parties, the nature of the harassment, and litigation characteristics (such as the forum, type of proceedings, and legal issues). While it reveals that individuals in all kinds of occupations, in all parts of the country, of all races, and of both genders complain about racial harassment—it also shows that African Americans are disproportionately likely to be plaintiffs. While Whites are the most likely harassers, minority individuals also are defendants. The data also discloses that the most typical legal proceeding is the court’s consideration of the defendants’ motion for summary judgment where the judges end up terminating most plaintiffs’ cases. In fact, the judicial opinions in this study find in the plaintiffs’ favor only 21.5% of the time. (In contrast, an earlier study revealed that judges in sexual harassment cases find in the plaintiffs’ favor 48% of the time – more than twice as often as in racial harassment cases.) As it turns out in racial harassment cases, the race of the plaintiff and of the alleged harasser makes a difference in the parties’ success rates, but the gender of the plaintiff does not. Judges are a bit more likely to find racial harassment when plaintiffs allege blatant racist behavior rather than more subtle and contextual racism. Results vary depending on the location of the case. Part IV provides an integrated analysis of the data, including a look at how racial harassment litigation has evolved over time. It also offers explanations and implications of the study’s results. This article contributes detailed baseline data for litigants, judges, and legislators. Each group can draw upon the totality of racial harassment cases to guide their decisionmaking. The article also offers a sound basis for creating a new racial harassment jurisprudence that should be distinct from both sexual harassment and racial discrimination jurisprudence

Comparing the Effects of Judges' Gender and Arbitrators' Gender in Sex Discrimination Cases and Why It Matters

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Freeing Racial Harassment from the Sexual Harassment Model

Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable. This Article, however, questions the assumption that there should be a monolithic model for discriminatory workplace harassment. In particular, it questions whether the currently dominant sexual harassment model should be used automatically as the paradigm in racial harassment disputes. Part I begins by acknowledging and explaining why the legal community analogizes racial harassment claims and jurisprudence to sexual harassment claims and jurisprudence. Part II posits that this analogy is problematic given the fundamental differences between racial harassment and sexual harassment. While empirical evidence of these differences is currently limited, Part II identifies and discusses two pioneering examples. The first documents important dissimilarities between racial harassment litigation and sexual harassment litigation; the second chronicles the differences between the dynamics and theoretical explanations for racial harassment and sexual harassment in the law firm context. Given the dominance of the sexual harassment model and the presumption of its applicability to other harassment disputes, including racial harassment, it is not surprising that comparatively little research and study of racial harassment and other forms of harassment have been done. The discussion and analysis here contributes to the research on the topic. Finally, Part III explores the implications of freeing racial harassment from the sexual harassment model

Culture and Race in Provider-Client Relationships

Given that minority group members are underrepresented in the teaching, medical, and legal professions, minority group members often have White teachers, doctors, and lawyers. This is frequently the case even when students, patients and clients would prefer service providers similar to them in racial or ethnic background. This paper identifies possible cultural barriers to effective one-on-one relationships between White teachers, doctors and lawyers and those who receive their services, explores the potential for biased expectations to influence the services provided and outcomes attained, and contrasts the goals of White and minority educators, doctors, and lawyers, arguing that these differences have potentially negative implications for service recipients. Policy approaches to mitigating potential problems caused by the lack of match are considered, as are potential problems arising from an overly narrow emphasis on match