Lewis & Clark Law Review - Law School - Lewis & Clark

                  

BUSINESS LAW FORUM

THE PROTECTED-CLASS APPROACH TO ANTIDISCRIMINATION LAW: LOGIC, EFFECTS, REFORM

 

WAL-MART V. DUKES: TAKING THE PROTECTION OUT OF PROTECTED CLASSES

Michael J. Zimmer

16 Lewis & Clark L. Rev. 409 (2012)

Wal-Mart v. Dukes is a major 2011 procedural decision changing the future path of class actions and maybe more. To decide the procedural issue, the Court found it necessary to look to the underlying substantive law—Title VII’s systemic disparate treatment and disparate impact theories of discrimination. This Article will explore the way the Court treated that substantive law to attempt to see if Wal-Mart is a foreshadowing of major changes in the substance of antidiscrimination law. To do that, it will first briefly develop the competing visions of the underlying purpose of antidiscrimination law—whether the aim of the law is to address subordination of classes of people protected by the law or is simply to prohibit classifications—and trace their development since Reconstruction through the Rehnquist Court. Next, it will develop the earlier Roberts Court decisions in Parents Involved and Ricci v. DeStefano leading up to Wal-Mart. These decisions show how the anticlassification purpose and corresponding absolute color-blind rule have come to predominate if not completely prevail. Finally getting to Wal-Mart, the Article first sketches out how Wal-Mart would be analyzed under prior law and then describes how that substantive law was treated in the decision itself. Looking at the juxtaposition of prior law with the approach to substantive antidiscrimination law developed in Wal-Mart, the next Part sets out the possible impact of Wal-Mart on that law. In the best case, Wal-Mart would have no impact on Title VII’s substantive law. In the worst case, the decision foreshadows a major contraction of the systemic theories of discrimination that were in place before the Roberts Court era.

CHANGING WORKFORCE DEMOGRAPHICS AND THE FUTURE OF THE PROTECTED CLASS APPROACH

Nancy Levit

16 Lewis & Clark L. Rev. 463 (2012)

The composition and identity characteristics of the American workforce are changing. The population in this country is rising, aging, and becoming much more racially and ethnically diverse. Appearance norms are shifting, too. These changes have enormous implications for constitutional and employment discrimination law.  In both equal protection and employment discrimination cases, recovery usually depends on membership in a constitutionally or statutorily protected category. Yet the statutory approach to antidiscrimination law has stagnated. Part of the difficulty of the protected class approach is that it is based on something of a paradox—the paradox of exceptionalism. Class-based protection requires individuals to prove immutable or deeply embedded differences to obtain protection from being treated differently. The categorical approach also means that some types and lived experiences of discrimination are simply omitted from federal and state protection.

This Article discusses cramped doctrinal interpretations, narrow intersectional analysis, and the problematic of intragroup distinctions—all of which inhibit the reach of Title VII and state laws. The proposal to reinvigorate the antidiscrimination frontiers envisions constructing a judicial and regulatory patchwork of protections. The Article recommends expanding doctrinal coverage for new types of discrimination, as well as building on the efforts of various states and municipalities, which have begun to provide somewhat more robust antidiscrimination protection than is afforded under federal law. Finally, the Article suggests that one of the more promising avenues for addressing the types of discrimination that will face the workforce of the future is to endeavor to change cultural understandings about identity characteristics through media efforts.

DECOUPLING EMPLOYMENT

Marcia L. McCormick

16 Lewis & Clark L. Rev. 499 (2012)

The protected class approach to employment discrimination has not solved the problem of discrimination or of a just distribution of resources. Not only do race and sex prejudice continue to exist, but material and subjective disadvantage continues to be strongly linked to race and sex. While our laws have made social changes, progress on those changes stalled in the 1980s. Some might even say that the protected class approach to discrimination has actually entrenched inequality more deeply into our social fabric.

this Article seeks a purpose-driven approach to finding solutions to the problems of discrimination, asking why it is that we prohibit discrimination and what we hope to accomplish through law. It advocates for a focus on some baseline of substantive equity for everyone, separated from particular employment relationships, and not contingent on identity. Such a shift might take pressure off of our antidiscrimination laws, which in turn might allow them and the market to operate to promote more equality for historically disadvantaged groups.

TOWARD POSITIVE EQUALITY: TAKING THE DISPARATE IMPACT OUT OF DISPARATE IMPACT THEORY

Michelle A. Travis

16 Lewis & Clark L. Rev. 527 (2012)

Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as an essential and defining feature of antidiscrimination law. Just over a decade ago, however, Professor Mark Kelman launched an investigation into whether and why antidiscrimination law must or should make reference to group status. This Article extends that investigation into the disparate impact arena by exploring the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. This analysis reveals the value in considering a practice-conscious rather than a group-conscious approach to legal regulation of workplace practices. Rather than tailoring legal protection by allowing only members of certain groups to challenge the business necessity of any exclusionary employment practice, legal protection could instead be tailored by allowing any worker to challenge the business necessity of only certain suspect practices. This Article uses Kelman’s insights to help identify the subset of practices that should be subject to such universal challenge, and it analyzes the benefits and shortcomings of a practice-conscious approach to advancing a norm of positive equality in the workplace.

RICCI V. DESTEFANO: EVEN WHITES ARE A PROTECTED CLASS IN THE ROBERTS COURT

Lino A. Graglia

16 Lewis & Clark L. Rev. 573 (2012)

After preparing and administering written and oral tests for firefighters to determine eligibility for promotions, the City of New Haven, Connecticut, discarded the results when it appeared that no blacks, only non-blacks, had become eligible for immediate promotion. New Haven was then in the paradoxical position of being subject to a charge of race discrimination by non-black firefighters in violation of the Constitution and the “disparate treatment” provision of Title VII of the 1964 Civil Rights Act if it discarded the test results, as it did, or by black firefighters in violation of the “disparate impact” provision of Title VII if it did not. After first holding, dubiously, that the city was guilty of race discrimination in violation of the disparate treatment provision, the Court then held, even more dubiously, that the violation could be justified, as a matter of statutory interpretation, if the city could show—which the Court held it could not—“a strong basis in evidence” that its action was necessary to avoid a violation of the disparate impact provision. The Court thus attempted to “reconcile” the two provisions, which, importantly, it recognized for the first time as being in conflict. It also thus avoided, as Justice Scalia pointed out in a concurring opinion, the underlying question presented by the case: the constitutionality of the disparate impact provision if it is interpreted, as it often has been but need not be, as effectively requiring race discrimination by employers.

DIVERSITY AND THE VIRTUAL WORKPLACE: PERFORMANCE IDENTITY AND SHIFTING BOUNDARIES OF WORKPLACE ENGAGEMENT

Natasha T. Martin

16 Lewis & Clark L. Rev. 605 (2012)

This Article explores the meaning of workplace discrimination where reality meets the imaginary world in virtual work settings. Using a more recent development in the realm of virtual work—workplace avatars—the Article considers the impact on law of virtual performance identity by workers where appearances can be altered in virtual reality. Current protected-class approaches to antidiscrimination law have not served as the antidote to workplace bias and exclusion. Thus, the Article investigates whether avatar technology holds promise for facilitating greater inclusion of marginalized workers in the contemporary workplace. Does this mode of virtual work serve as a platform for diversity or simply create more confusion regarding our fundamental understandings of discrimination?

The author’s premise is that the mechanics of online identity and the social and behavioral dynamics of virtual engagement produce a new locus for bias to flourish. While the virtual workplace holds some appeal for promoting broader acceptance within organizations, the Article claims that avatar-based virtual work environments do not constitute unconditional and neutral spaces. Overall, the Article takes an optimistic stance toward immersive environments in the employment context. However, it cautions that avatars create interpersonal dynamics that are just as dangerous to notions of belonging in the contemporary workplace as their physical counterparts. The author posits that the multidimensionality of identity in this context illuminates the limitations of the categorical approach to antidiscrimination law and concludes that the avatar makes the case for intersectionality theory in workplace law.

MORAL ASYMMETRY: A PROBLEM FOR THE PROTECTED CATEGORIES APPROACH

Lawrence Blum

16 Lewis & Clark L. Rev. 647 (2012)

The protected categories approach makes “discrimination on the basis of X,” where X is a protected category, seem to be a morally or legally uniform wrong. But when X is race or sex, the wrong is not uniform. “Discrimination against blacks” is not morally equivalent to “discrimination against whites,” other things equal. Discrimination is a pluralistic wrong; different forms of it are wrong for different reasons. This should lead us to abandon the expression “discrimination on the basis of X,” for many (not necessarily all) Xs.

THE PUBLIC’S INTEREST IN “PRIVATE” EMPLOYMENT RELATIONS

Jeffrey D.  Jones

16 Lewis & Clark L. Rev. 657 (2012)

Few employment law scholars are satisfied with the current state of employment law. Beyond critiques of particular employment law rules, however, employment law scholars can expose and undermine the ideologies and doctrines that limit employment law to its current form. This Essay first offers one doctrinal explanation for the current limits of employment law. The explanation supposes that the perceived limits of employment law arise from a view of employment law as a wholly derivative product of contract and property law. The Essay then considers two alternative perspectives on the nature of employment law. Both perspectives imbue the employment relationship with independent public significance and imagine employment as a kind of public resource served, rather than only subordinated, by individual contract and private property rights.

 

ARTICLE

 

“USE IT AND LOSE IT”: AN EXPLORATION OF UNUSED COUNTERTERRORISM LAWS AND IMPLICATIONS FOR FUTURE COUNTERTERRORISM POLICIES

Stephanie Cooper Blum

16 Lewis & Clark L. Rev. 677 (2012)

This Article explores why the executive branch has declined to use three counterterrorism laws—the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act—and suggests that the reason may be fear that the laws are unconstitutional and, paradoxically, that in some cases they provide too many rights to suspected alien terrorists. The Article also offers three insights from the non-use of counterterrorism laws: (1) that Congress may be passing political responses instead of needed counterterrorism protection; (2) that the judicial branch is using these laws to narrow the scope of other counterterrorism measures; and (3) that we may have a potential gap in security. In this way, the study of unused counterterrorism laws can prove just as insightful and helpful an exercise as the more traditional analysis of frequently used counterterrorism measures.

 

NOTES & COMMENTS

 

A SEARCH FOR THE CASELAW TO SUPPORT THE COMPUTER SEARCH “GUIDANCE” IN UNITED STATES V. COMPREHENSIVE DRUG TESTING

Christina M. Schuck

16 Lewis & Clark L. Rev. 741 (2012)

The ubiquitous use of computers by individuals and businesses presents a unique challenge to courts attempting to balance the legitimate needs of law enforcement with individuals’ Fourth Amendment rights. Despite a recent failed attempt by the Ninth Circuit in United States v. Comprehensive Drug Testing (CDT) to take a special approach to computer searches, it is still possible for courts to establish guidelines that are both supportable and practical.

Using the CDT guidelines, courts going forward should: (1) ask the government to forswear the use of the plain view doctrine to prevent a search of electronic data from becoming a prohibited general search; (2) narrowly apply the use of segregation teams in cases where third party information is at risk; (3) only require a search protocol in very limited situations; and (4) require the government to disclose the actual risks to data destruction in the particular case, instead of relying on generic hazards to justify a broad seizure of data.

Although unsupported in the opinion, the CDT guidelines provide courts valuable tools to analyze the reasonableness of a computer search.

CITIZEN-DIRECTED POLICE REFORM: HOW INDEPENDENT INVESTIGATIONS AND COMPELLED OFFICER TESTIMONY CAN INCREASE ACCOUNTABILITY

Kristen Chambers

16 Lewis & Clark L. Rev. 783 (2012)

Police misconduct in the United States has spurred decades of police reform efforts, but change has been slow and not attributable to any particular method. One method that seems promising both to remedy individual harms and to help transform police culture is citizen oversight of the police. This Note argues that citizen oversight agencies can aid in reformation of the police by conducting independent investigations of police misconduct. To be effective, such investigations must be conducted by citizen oversight agencies that are truly independent and vested with ample authority. In this Note, examples from Portland, Oregon’s citizen oversight agency are used to illustrate common hurdles to conducting independent investigations, with specific focus on gaining the power to compel officer testimony. This Note challenges municipal deference to collective bargaining agreements with respect to police oversight and suggests methods for citizen oversight agencies to gain more independence and power.