Rights in Recession: Toward Administrative Antidiscrimination Law

56 Pages Posted: 20 Sep 2015 Last revised: 3 Dec 2015

See all articles by Stephanie Bornstein

Stephanie Bornstein

University of Florida Levin College of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: 2014

Abstract

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, compels a reconsideration of the existing enforcement scheme. The Article then theorizes a new model for combining public and private enforcement efforts and using administrative procedures under existing law more robustly to leverage the relative strengths of each part of the statutorily designed compromise. This proposed model offers both a strategic response to recent economic and legal developments that threaten effective antidiscrimination enforcement and an opportunity to more perfectly realize Congress's original enforcement vision.

Keywords: Title VII of the Civil Rights Act of 1964, Equal Employment Opportunity Commission, employment discrimination, Great Recession

Suggested Citation

Bornstein, Stephanie, Rights in Recession: Toward Administrative Antidiscrimination Law (2014). 33 Yale Law & Pol’y Rev. 119 (2014); University of Florida Levin College of Law Research Paper No. 15-34. Available at SSRN: https://ssrn.com/abstract=2662533

Stephanie Bornstein (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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