Statistical Inequality and Intentional (Not Implicit) Discrimination

Racial disparities remain a disturbing fact of American life but whether those disparities are the product of discrimination remains deeply contested. This is an important question because as a society we are committed to remedying discrimination but are significantly more conflicted over addressing racial disparities that are not tied to discrimination. This essay explores the question of how we can determine when statistical disparities are the product of discrimination, and relies on two areas where the presence of racial disparities are incontrovertible – police automobile stops and school discipline. Based on a large number of studies, there is little question that African-American drivers are stopped and searched more frequently than whites, even though contraband is found more commonly on white drivers. Similarly, based on studies dating to the 1970s, African-American students are suspended and expelled at rates that are generally three times as high as white students, and there is little reason to believe that the disparities are solely explained by the behavior of African-American students. After refuting the nondiscriminatory explanations that are often offered to justify the disparities, the last part of the essay urges policymakers to treat repeated patterns of behavior as intentional, as opposed to implicit, discrimination, and offers a critique of the recent turn to implicit bias

Women in the Workplace: Which Women, Which Agenda?

Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today\u27s economy more women are underemployed rather than overemployed. We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work and family demands. We discuss the most prominent policy proposals for helping attain this balance, including a greater emphasis on part-time work and shorter workweeks, and critique them for their failure to address the needs of most working women. Finally, we suggest several alternative proposals, including lengthening school days, addressing domestic violence, and challenging the stubborn gender norms that prevent further progress for equality in both the workplace and the home

The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions

Times change, and when they do, the law must as well. Much of the most important employment discrimination case law was established in the 1970s during an era when discrimination was both overt and pervasive. Moving forward forty years, discrimination has receded dramatically and is no longer seen as a default explanation for workplace decisions or statistical imbalances in a workforce. At the same time, the discrimination that remains is more complex, more subtle in nature and more difficult to identify. This article explores how the Supreme Court has navigated the declining but more complex nature of employment discrimination. In a series of recent cases, including the landmark sex discrimination case of Wal-Mart v. Dukes, the Supreme Court has embarked on a judicial updating of the foundation of employment discrimination law with the Court quietly announcing that the old case law no longer fits contemporary claims of discrimination. In other words, what counted as discrimination in the 1970s no longer does today. Despite the criticism the Court has received for its decisions, I conclude that the Court was right to shed its old doctrine as the inferences of discrimination that were permissible during an earlier era fail to account for our changed social conditions. The real problem with the Court’s recent updating of the doctrine is not the shedding of the old but what it has left in its place – the Supreme Court has failed to adapt its doctrine to capture the complexities of modern discrimination, thus leaving a substantial gap between what the law defines as discrimination and what we know about the difficulties of uncovering subtle discrimination. This article also critiques the recent academic emphasis on “implicit bias” and instead offers some suggestions for moving forward in a way that might better adapt the legal doctrine to the complexities of modern discrimination. This includes the use of testers to document workplace discrimination, more emphasis on educating courts and jurors regarding the nature of subtle discrimination (not implicit bias) and the role employer self-interests might play in bringing greater diversity to the workplace

Theorizing Systemic Disparate Treatment Law

The pattern or practice cause of action is the most potent, but least understood, of the causes of action recognized by Title VII. The massive sex discrimination case filed against Wal-Mart has renewed scrutiny on the nature of the pattern or practice claim, and this essay seeks to explain under what circumstances statistics can prove intentional discrimination. This essay first explores the history of the pattern or practice claim, noting that the primary case law is now three decades old and was developed around issues of overt race discrimination. Claims of gender discrimination are more complicated because the regression analyses that are at the core of the case do not create as strong an inference of discrimination as occurs in the context of race discrimination. The essay, however, rejects the notion that the pattern or practice claim is merely an aggregation of individual claims, and instead suggests that the statistics prove a more subtle form of discrimination that would not be evident if one focused solely on individual claims. The paper also critiques the presentation of the sex discrimination claim in the Wal-Mart litigation for its generic quality, and suggests that plaintiffs must provide a narrative that explains the statistical story with a focus on the particular employer

The Work-Family Conflict: An Essay on Employers, Men and Responsibility

This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which could go a significant way to altering the dynamics of work-family issues, has been largely ignored. This essay first explores the rationales for focusing on employers, including what is now defined as the business case for work-life benefits. The paper then critiques the various excuses that are typically raised for why men do not take more responsibility for work-family balance issues, including that (1) they are penalized to a greater extent than woman, that (2) it is economically rational for the burden to fall on women and that (3) men\u27s behavior has changed significantly, none of which is empirically supported in the literature. Finally, I suggest that it is important to have a more theoretically targeted policy focus that is premised on workplace equality rather than trying to support all choices for all women

The Supreme Court’s Surprising and Strategic Response to the Civil Rights Act of 1991

This essay, which was prepared for a symposium issue in recognition of the twentieth anniversary of the Civil Rights Act of 1991, explores the Supreme Court’s response to the Congressional repudiation of its cases reflected in the 1991 Act. Relying on a positive political theory framework, I demonstrate that the Court appears to have responded in a strategically sophisticated manner designed to insulate their decisions from Congressional reversal. The 1991 Act reversed or modified eight Supreme Court decisions, and reflected concern regarding the conservative turn the Court had taken in discrimination cases. After the passage of the Act, plaintiffs have fared substantially better in the Supreme Court - prevailing on nearly seventy (70%) of the non-disability employment discrimination cases, with nearly two thirds of the victories rendered by unanimous decisions. Yet, in the most significant cases - the cases the conservative members of the Supreme Court likely have the strongest preference - defendants continue to prevail, often by a 5-4 margin

The \u3ci\u3eRestatement\u27s\u3c/i\u3e Supersized Duty of Loyalty Provision

This essay analyzes and critiques the Restatement of Employment Law’s provision on the duty of loyalty. Cases invoking the duty of loyalty have generally been successful only in the limited circumstance when an employee leaves her current employment to start a competing business. The Restatement, however, reconceptualizes the duty of loyalty claim into a catch all provision that could be used to restrain employees from moving to competitors, even in the absence of a noncompete agreement, and to protect trade secrets or confidential information. The expansion of the duty of loyalty cause of action is unsupported by either the existing case law or the support cited with the Restatement itself; indeed the cases the Reporters provide do not generally involve the duty of loyalty claim at all. Even more troubling, the expansion of the duty of loyalty claim is neither explained nor justified within the document but instead seems to be based on a desire to offer employers greater means to protect their assets