The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression

62 Pages Posted: 15 Feb 2022 Last revised: 22 Feb 2022

See all articles by Gail L. Heriot

Gail L. Heriot

American Civil Rights Project; U.S. Commission on Civil Rights; Manhattan Institute

Date Written: February 14, 2022

Abstract

How might things be different if Title VII’s remedial provisions had not been expanded by the Civil Rights Act of 1991 to allow for the recovery of compensatory and punitive damages, including damages for emotional distress? History doesn’t disclose its alternatives, but one possibility to consider is this: While the more generous remedies likely had many effects, both good and ill, ultimately two of the most lasting and consequential effects may have been to encourage the growth of identity politics and to weaken support for American norms of free expression—at least as those norms apply to statements that relate to race, sex, or national origin. We all know that culture affects law. But, one way or another, law affects culture, too.

Keywords: Title VII, harassment, Civil Rights Act of 1991, free expression, identity politics, civil rights, racial harassment, sexual harassment, retaliation, attorneys’ fees, wokeness, remedies

Suggested Citation

Heriot, Gail L., The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression (February 14, 2022). San Diego Legal Studies Paper 22-001, Texas Review of Law & Politics, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4034768 or http://dx.doi.org/10.2139/ssrn.4034768

Gail L. Heriot (Contact Author)

American Civil Rights Project ( email )

P.O. Box 12207
Dallas, TX 75225
United States

HOME PAGE: http://www.americancivilrightsproject.org/

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue, N.W.
Suite 1150
Washington, DC 20425

Manhattan Institute ( email )

52 Vanderbilt Avenue
New York, NY 10017
United States

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