Black Lives Matter: It’s Time for Employment Laws to Catch Up

2020-06-04T17:06:49-05:00 June 4th, 2020|

Nothing changes if you don’t change anything. And change is badly needed. We relish our work as employment discrimination lawyers. But the system is broken. Our employment laws are woefully insufficient. They do next-to-nothing to address the systemic racism that permeates the workplace. It’s glaring when it boils over. White employees still use the n-word. White employees still tell black workers that they think “blacks are lazy” or that they “hate working with black people.” White employees still reference the KKK and bring nooses to work. And black workers still get fired for complaining about it.

No case is easy, but those are more straightforward. The more difficult cases come about when bias is less obvious. For example, the black worker who worked just as hard as his white peers but was passed over for promotion. There’s the black worker who suddenly gets a new manager and, just like that, starts getting written up and is eventually fired. And then there’s the black worker who makes one simple mistake and is held to a different standard than his white coworkers. For these cases, the law is often inadequate. Employers hide behind the at-will rule and stubbornly refuse to provide the discovery that would reveal the telling patterns of unconscious bias. They rely on outdated legal doctrines—like the Proud v. Stone defense—and say, with a straight face, that racism could not possibly have anything to do with it. Courts take cases away from juries with alarming frequency at the summary judgment stage and—even more unjustly—at the very first stages of a case, before employees are even allowed the discovery they need to prove their claims.

Weeding out individual racists, like plucking weeds from a lawn, will never be enough. It’s based on a fallacy. The United States of America was founded on white supremacy. Over the course of centuries, white supremacy prevailed and grew in plain sight, creating deep-seated systemic racism and racial divisions that are as real now as ever. We have never fully grappled with this history, choosing instead, willful ignorance and ambivalence, at best. The murder of George Floyd was not just an individual act of racism by four racist cops. It’s a symptom of a bloody, painful past that is so embedded in the present that it touches nearly aspect of American life.

Black household wealth is less than one-tenth that of similary situated white households. The median black household wealth for those with a college degree is roughly 70 percent of the median wealth for white households without a college degree. The black unemployment rate is at least twice as high as white unemployment. Black Americans’ incarceration rate is five times that of whites. That’s just the tip of the iceberg.

These massive disparities between black and white America are not accidental. It’s no secret that many of our Founding Fathers were slaveholders and white supremacists.[1] In 1857, the United States Supreme Court ruled that black people, regardless of whether they were enslaved or free, were excluded from U.S. citizenship.[2] When abolition came in 1865, after the U.S. went to war over the question of slavery, white supremacy began taking new forms. The Thirteenth Amendment, which was supposed to end slavery, declares: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

“[E]xcept as a punishment for crime whereof the party shall have been duly convicted” laid the groundwork for continued, de facto slavery. Southern states moved quickly to lay new legal traps with the express, explicit purpose of capturing black men and forcing them into labor. “Beginning in the late 1860s, and accelerating after the return of white political control in 1877, every southern state enacted an array of interlocking laws essentially intended to criminalize black life.”[3] Those news laws included, for example, “vagrancy,” which was so vague that any freed formerly enslaved person “not under the protection of a white man” could be arrested. By 1877, every formerly Confederate state, except Virginia, was leasing black prisoners to private enterprise.[4] And by 1900, “the South’s judicial system had been wholly reconfigured to make one of its primary purposes the coercion of African Americans to comply with the social customs and labor demands of whites.”[5] This practice continued until the dawn of World War II.[6]

Meanwhile, white supremacy continued to ensure that black Americans would never be on the same playing field as white citizens. The Jim Crow era brought laws that kept black and white people separate. It received the blessing of the United States Supreme Court in 1896,[7] with the ludicrous “separate but equal” doctrine, which was not declared unconstitutional until 1954.[8] Laws, like the poll tax, disenfranchised black Americans. Federal, state, and local governments intentionally segregated housing not just in the South, but throughout the United States.[9] Our current, deeply segregated country is not the product of individual action—it was intentionally designed by white supremacists in our government.

The ramifications of this past are all around us today. The civil rights movement did not end racism; no one should be so naive as to think that it did. Laws designed to disproportionately target black Americans persist, as do images of black people as dangerous criminals; images curated by white supremacists over the course of centuries to ensure that division persists and equality never comes to fruition.[10]

Change is necessary. Replacing our patchwork of ineffective workplace discrimination laws with a “just cause” standard would be a good starting point. The at-will rule is insidious for all Americans, and particularly for those suffering from discrimination whose cases do not fit into the neat and tidy boxes required by our current laws. Systemic racism isn’t neat and tidy, and getting rid of a company’s ability to fire someone for an absurd reason would help prevent cases from falling through the cracks.

Moreover, where an employee can prove discrimination played a role in the termination, automatic and substantial punitive damages should be levied against the offending company. Our current laws generally tie damages to lost pay, and the standard for punitive damages—designed to deter other violations—is a high one. Meaningful penalties would go a long way in stemming the tide of workplace systemic racism.

Fixing our workplace laws is just one piece of the puzzle. Systemic racism and its disastrous effects are everywhere. Voting in representatives committed to tackling the problem is a start, but the protests cannot stop. The speaking up, speaking out, and educating cannot stop. They are the only things that have ever driven real change in this country. We are past due for a shift that not only acknowledges our tortured and shameful past, but makes us willing to do something about it.

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[1] Walter Johnson, The Broken Heart of America: St. Louis and the Violent History of the United States (2020).

[2] Scott v. Sandford, 60 U.S. 393 (1857).

[3] Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II, 53 (2008)

[4] Id. at 56.

[5] Id. at 7.

[6] Id. at 9.

[7] Plessy v. Ferguson, 163 U.S. 537 (1896)

[8] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[9] Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017).

[10] 13th, Ava DuVernay, Kandoo Films, Netflix (2006).


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