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The Shortcomings of Title VII for the Black Female Plaintiff
No full textVarious United States courts, including the Supreme Court, have decided numerous workplace discrimination cases in the past four decades. Kimberlé Crenshaw introduced and coined the term “intersectionality” 25 years after Congress enacted Title VII. The formal recognition of intersectionality opened the gate for several legal scholars to criticize Title VII jurisprudence related to plaintiffs who bring multidimensional claims-—usually women of color plaintiffs—arguing, for example, that “complex discrimination” claimants face both structural and ideological barriers to redress and thus fare even worse when compared to other employment discrimination plaintiffs.
I argue that Black women bear the brunt of these structural barriers to recovery in the current Title VII legal landscape and offer suggestions. This Article examines the way in which the current framework courts employ in individual employment discrimination cases negatively impacts Black female plaintiffs’ chances of success in pursuing employment discrimination claims. I use intersectional theory as a backdrop to analyze a split among several federal appellate circuits regarding whether to resolve claims brought by multi-dimensional plaintiffs through an intersectional lens.
Through a review of legal scholarship, case law, social psychology, and critical race theory literature on Title VII, feminism, and race, this Article suggests three solutions on the executive, legislative, and judicial levels to alleviate the burden Black female plaintiffs carry in bringing employment discrimination claims: 1) the Equal Employment Opportunity Commission should issue clearer guidelines and an analytical framework to guide courts in resolving intersectional claims; 2) Congress should amend the language of Title VII to include “or any combination thereof” to allow for plaintiffs to seek redress by combining two or more protected classes; and 3) the Supreme Court should resolve the circuit split by creating an analytical framework that employs an intersectional lens in Title VII statutory construction
Learning In Baby Jail : Lessons From Law Student Engagement In Family Detention Centers
No full textBetween 2014 and 2017, more than 40 law schools and likely well over 1000 law students engaged in learning within immigration family detention centers. The Trump Administration’s “zero tolerance” policy and implementation of wide-scale family separation in 2018 led to increased involvement by professors and students in the constantly shifting landscape of immigration detention. As the detention of immigrant families becomes increasingly entrenched, this article hits the pause button and assesses the benefits and challenges of the various approaches to, and proposes some principles for, law student engagement in this crisis lawyering in immigration detention centers, for families, and beyond
The New Gospel of Wealth: On Social Impact Bonds and the Privatization of Public Good
No full textSince Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and economic inequality. An emerging social finance tool, the social impact bond (“SIB”), has been praised as a promising platform that can help solve many of our social challenges by targeting impact investments toward traditionally underfunded social welfare programs. This Article sets forth a critical examination of the new SIB model, highlighting some of the opportunities for the social finance tool to promote social impact, while also revealing several of its challenges that may hinder its broader adoption in communities across America. In the process, this Article exposes key flaws inherent in the design of the SIB model, including its neoliberal emphasis on market-based economic development strategies and its disregard for the primary role of government in the protection and advancement of the public good. It concludes by calling for a more progressive economic development framework to guide the implementation of the SIB model, one that can help development practitioners, philanthropists, and impact investors wrestle with the deficiencies of our global capitalist economic system and overcome the entrenched systemic barriers to economic justice in America
Policing the Prosecutor: Race, the Fourth Amendment, and the Prosecution of Criminal Cases
No full textAs this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment’s lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression hearing stage. And suppression hearing wins matter
