Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at odds. This article challenges this piece of conventional wisdom by showing how job security protections can also exacerbate racial inequality in employment. It examines recent race riots and student protests against proposed labor law changes in France to unearth the tension between combating racial discrimination in hiring and protecting all employees’ job security. Scholars and advocates of employment discrimination law should be aware of the ways in which both employment at will and job security protections can function in different contexts to exacerbate racial inequalities in employment. Such awareness should encourage the development of a broader perspective on equal employment opportunity that moves beyond the limited set of problems that are identified by the litigation of employment discrimination cases

Working Mothers and the Postponement of Women\u27s Rights From the Nineteenth Amendment to the Equal Rights Amendment

The Nineteenth Amendment\u27s ratification in 1920 spawned new initiatives to advance the status of women, including the proposal of another constitutional amendment that would guarantee women equality in all legal rights, beyond the right to vote. Both the Nineteenth Amendment and the Equal Rights Amendment (ERA) grew out of the long quest to enshrine women\u27s equal status under the law as citizens, which began in the nineteenth century. Nearly a century later, the ERA remains unfinished business with an uncertain future. Suffragists advanced different visions and strategies for women\u27s empowerment after they got the constitutional right to vote. They divided over the ERA. Their disagreements, this Essay argues, productively postponed the ERA, and reshaped its meaning over time to be more responsive to the challenges women faced in exercising economic and political power because they were mothers. An understanding of how and why the amendment stalled speaks directly to the current controversy in Congress and the courts about whether a congressional time limit should stop the ERA from achieving full constitutional status. Such an understanding recognizes that suffragists disagreed in the immediate aftermath of the Nineteenth Amendment\u27s ratification over the ERA, and that these divisions undermined the ERA\u27s prospects for at least a few decades. Ultimately, however, the ERA that earned congressional adoption and thirty-eight ratifications over almost a century was stronger because of this postponement

The Constitution of Mothers: Gender Equality and Social Reproduction in the United States and the World

In March of 2017, on the heels of the Women’s March, Nevada became the first state in 35 years to ratify the Equal Rights Amendment (ERA). If Nevada’s ratification is legally valid, then ratification by merely two additional states would be sufficient to add a sex equality guarantee to the U.S. Constitution. But the question remains: would the ERA change what the law does to gender relations and gender equality—or would a constitutional guarantee of sex equality be merely symbolic today? Even though the Equal Protection Clause is now read to prohibit sex discrimination in most instances, and statutes prohibit sex discrimination in employment and education, American women continue to experience political and economic disadvantages that stem from their social role in raising the next generation of Americans. This article argues that constitutional gender equality must be understood not only as women’s rights, or the rights of men and women to be liberated from gender roles, but rather, as the new twenty-first century infrastructure of social reproduction. This vision of gender equality, which was facilitated by the early twentieth century protection of motherhood in post-war European constitutions, is one that is taking hold in many other constitutional orders outside the United States

An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home

The last few years have seen a renewed push to constitutionalize sex equality in the United States. A generation after the federal Equal Rights Amendment (ERA) failed to be ratified by the requisite number of states, the ERA is on the platform of the 2017 Women\u27s March on Washington. Oregon added a sex equality guarantee to its state constitution in 2014, joining 22 state constitutions and most constitutions around the world. Feminist coalitions, Hollywood celebrities, and members of Congress are vocally endorsing an ERA revival

Procedural Path Dependence: Discrimination and the Civil-Criminal Divide

Procedural path dependence occurs when the particular features of the procedural system that is charged with enforcing a given legal norm determine the substantive path of that norm. This Article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to prove the facts of discrimination, whereas the limits of French civil procedure make it impossible for such information to be revealed. As a result, the substantive legal norm of nondiscrimination is being developed in French criminal law, in which the element of intent and the defendant’s strong presumption of innocence are essential. In the United States, liberal civil procedure rules permit the broad discovery of information relevant to proving discrimination. At the same time, the civil litigation system has undermined the law’s adaptability to the evolving social practices that threaten equal employment opportunity. The civil dimension of this procedural system, deeply rooted in the paradigm of the private damages action, tends to favor the employment discrimination claims that most closely resemble torts, thereby limiting the law’s ability to address the complex causes of unequal employment opportunity. This, too, is an example of procedural path dependence. These examples reveal that discrimination is neither criminal nor civil in nature. To overcome its present limits, antidiscrimination law must transcend the substantive principles that have become entrenched by the procedural systems in which it developed

A World Without Roe: The Constitutional Future of Unwanted Pregnancy

With the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe. Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the State, without properly valuing these contributions. This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings- and Thirteenth Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Global experience also points to the importance of incrementally establishing reasonable, expanded definitions of medical necessity exceptions to abortion bans. Such avenues for reestablishing abortion access, as well as public support for pregnancy and parenting, imagine a broader world of reproductive justice than the one defined by Roe

Liberal Constitutionalism and Economic Inequality

Economic inequality is rising in democracies across the world and poses a clear threat to both the stability and legitimacy of liberal constitutional models. Can liberal constitutionalism respond to this threat? Or are there inherent limits to the liberal model that prevent an effective response? This Essay explores these questions by surveying the range of possible structural and rights-based constitutional responses to economic inequality, as well as possible obstacles to these responses— including problems of definition, leveling up versus down, unintended or counterproductive consequences, and institutional path dependence