• Selected
• Entire List

Abstract:
Forty years after the passage of Title VII, scholars Marianne Bertrand and Sendhil Mullainathan reported the results of their groundbreaking study, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. Their study revealed that simply having an African American-sounding name significantly decreased one's opportunity to receive a job interview, regardless of occupation or industry. The results of Bertrand and Mullainathan's investigation raise critical questions about the effectiveness of Title VII as a remedy for race discrimination in the hiring market today, especially as employment discrimination has evolved into different forms. As shown by the study, in many instances, employers rely on proxies for race, such as a person's name, to exclude an applicant from consideration.

Outside of the context of age and national origin discrimination, very few scholars have examined the problem of proxy discrimination, and none have analyzed how to address such discrimination as it relates to race in light of theories regarding the social construction of race, in particular what it means to be correctly or incorrectly perceived as belonging to a certain racial group on the hiring market. This Article borrows from the definition of disability under the Americans with Disabilities Act (ADA) and the courts' analyses of disability discrimination cases under the regarded as disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity, to propose a new method for analyzing race-based proxy discrimination claims.

Part I examines the ways in which race is socially constructed and analyzes several studies to demonstrate how the construction of race by cultural and social factors can have damaging effects on the job market for those perceived as belonging to certain racial groups. Part II analyzes the current framework under Title VII for evaluating individual disparate treatment cases based on race and describes how federal courts have failed to recognize the way in which race is socially constructed. Part III then borrows from a framework used in proving disability discrimination to argue for the inclusion of race discrimination claims where one is, for example, regarded as black, with all of its collective negative imaging, to redress discrimination in the workplace. Finally, this Article concludes by explaining the importance of maintaining the effectiveness of Title VII by judicially interpreting such legislation in a manner that comports with the realities of racism and race discrimination.

Abstract:
Unlike in other countries, there is no express protection of socioeconomic rights written into the United States Constitution. Additionally, the U.S. Supreme Court has neither deemed such rights fundamental for the purposes of review under the Constitution nor found poverty to be a classification, like race, that is deserving of a searching equal protection analysis. The problem of how to reform the Court's shabby treatment of interests that have been described as "constitutional welfare rights" has been long standing, having commanded at least forty years of sustained scholarly debate. The conversation continues because even as the plight of the poor worsens in this country, socioeconomic rights are thorny. Not only does greater recognition of constitutional welfare rights provide a potential basis to limit certain types of governmental class-based discrimination, if given full effect, such rights might also be construed as forcing the provision of government benefits or assistance.

The necessary brevity of this short essay prevents the in-depth exploration of the broadest variant of the welfare rights debate: how to effectively structure a constitutionally-recognized right to some form of basic subsistence. Justifications, however, can be provided for why discrimination based upon socioeconomic class needs greater constitutional protection and how a more robust equal protection analysis can serve as the means to achieve this goal. Toward this end, Part II of this Essay articulates just how lean the U.S. Supreme Court's jurisprudence has been in the area socioeconomic class. Sections A through C summarize the treatment of poverty under the various strands of Fourteenth Amendment jurisprudence, while Section D provides a number of justifications for why socioeconomic class deserves a more considered approach from the Court. Part III lays out how the Court's treatment of race, as classification, has been very different from the treatment of socioeconomic class and explores why there has been this difference. Part IV concludes by suggesting that the Court should abandon its present bifurcated jurisprudence on race and class as a first step toward acknowledging the need for consistent judicial treatment of classifications that operate as overlapping and intersecting bases for discrimination and subordination.

Abstract:
With regard to integration based on race, and increasingly gender, the U.S. military has been generally considered to be a great success. The power and reach of this integration success story was evident in the Grutter v. Bollinger decision, where the U.S. Supreme Court used maintaining diversity among the military's officer corps as one of the bases to preserve considerations of racial diversity in higher education admissions programs.

This article suggests that while the military may be considered an integration success when one considers access, that opportunities for success within the institution still may be affected by one's status as a racial minority or woman (or both). To this end, the article explores how promotion opportunities for women and racial minorities have been affected by a series of reverse discrimination cases that resulted in the various armed services adopting race- and gender-neutral policies for officer promotion processes. Additionally, the article queries how the prevalence of a narrative of integration success may prevent military and civilian leadership from focusing attention on the subtle ways identity difference may operate to the disadvantage of some within the armed forces.

The article applies within the context of the military, theories related to the impact of unconscious bias and identity performance that have been explored within other employment contexts. Special attention is paid to the unique challenges that face those who inhabit multiple categories of difference, such as women of color. Using the aforementioned theories, studies of minority officer advancement, and some empirical data looking at particular Navy JAG Corps officer promotion boards, the article surmises that the military's integration success may be more myth than reality.

Ultimately, the article calls for a return to race- and gender-conscious military officer promotion guidance, and a defense of such a policy premised upon revisiting the military reverse discrimination cases and re-imagining the breadth of judicial deference to military decision-making.

identity performance, unconscious bias, integration success, military