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Race, Racism and the Law
Racial inequality in the workplace is an ever evolving problem in our legal system. Most racial inequality occurs in primary markets or high level jobs. Affirmative action plans and race-conscious employment practices have been set in place by private employers and the government in an attempt to, at least facially, get rid of the discriminatory practices previously put in place by various employers. These affirmative action plans and race-conscious employment practices are not in place to give minority races advantages, but to right the wrongs of past discrimination in employment practices. African Americans are often thought of as the poster child for affirmative action plans because they are the most numerous minority in the country and, therefore, feel the effects of affirmative action plans and other race-conscious employment practices the most. In a sense, affirmative action and race-conscious employment practices would ideally serve to lower the unemployment rate amongst African Americans. Promoting and executing affirmative action plans and substantial race-conscious employment practices is the best plan to secure equality in the job market, especially in the primary labor market, and especially for African-Americans.
Statutes and Regulations
- 42 U.S.C.A. ' 2000e 2.
- 42 U.S.C.A. ' 1983.
- 28 C.F.R. ' 42.104. Civil Rights Act of 1964.
- Alexander v. Sandoval. 532 U.S. 275 (2001)
- Fullilove v. Klutznick. 448 U.S. 448, 100 S.Ct. 2758 (1980)
- McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973)
- Metro Broadcasting, Inc. v. Federal Communications Commission, et al. 497 U.S. 547, 110 S.Ct. 2997 (1990).
- Richmond v. J.A. Croson Company. 488 U.S. 469, 109 S.Ct. 706 (1989)
Law Review Articles
- Alligood, Brian H. Proof of Racial Discrimination in Employment Promotion Decisions Under Title VII of the Civil Rights Act of 1964. 48 AMJUR POF 3d 75. 2011.
- Cordry, Karen. Norton Annual Survey of Bankruptcy Law 18. Volume 2003, Issue 2003. 2003.
- Employer's enforcement of dress or grooming policy as unlawful employment practice under ' 703(a) of Civil Rights Act of 1964 (42 U.S.C.A. ' 2000e 2(a)). 27 A.L.R. Fed. 274. 1976 (original publishing).
- Hawkins, Stacy L. A Deliberative Defense of Diversity: Moving Beyond the Affirmative Action Debate to Embrace a 21st Century View of Equality. 2 CLMJRL 75. 2012
Non legal professional article
- Chima, Felix O. Wharton, William D. African Americans and the Workplace: Overview of Persistent Discrimination. Lexington Fayette UrbanCountyHuman Rights Commission. 2010. http://www.lfuchrc.org/publications/publications/article.pdf. April 11, 2012.
42 U.S.C.A. ' 2000e 2.
This statute provides protection in the workplace for employees against discrimination on the basis of race. This statute is important because it could be seen to be one of the motivating factors for programs such as affirmative action programs that employers put in place. These affirmative action programs help African-Americans as well as members of other minority groups to gain opportunities that they would not have if statutes such as this did not exist. This is the starting point in terms of governance and regulation of discriminatory practices in the workplace. Whether or not the legislatures knew that this piece of legislation would lead to these types of programs is unknown, but the overall effect is that more people have opportunities to obtain prominent positions in employment, especially African-Americans.
42 U.S.C.A. ' 1983.
This statute specifically addresses affirmative action plans and other race-conscious workplace remedies and programs. This is the next stepping stone after the previously annotated statute. It provides protection for employers who engage in these types of programs. This protection is important because now days we are beginning to see many cases that involve accusations of reverse discrimination. This statute is often cited in these cases. It allows employers, so long as their efforts are reasonable and do not have an overly negative impact on other groups, to make race-conscious remedies and plans that allow African-American workers to obtain higher paying positions and more prominent job titles inside their respective companies.
Title VI Regulation
28 C.F.R. ' 42.104. Civil Rights Act of 1964.
This regulation deals with the federal funding of employers and the rules that are put in place in terms of race-conscious hiring practices. This regulation both grants protection and also stringently regulates what types of employment practices that employers who are being subsidized by the federal government can partake in. This is important to affirmative action plans and African-Americans obviously as African-Americans seek jobs in these types of markets and these types of industries. It is relevant to the previously annotated statutes but is directed more directly at federally funded employers.
Alexander v. Sandoval. 532 U.S. 275 (2001)
This case goes directly to the regulation of federally funded programs. The regulations are in regards to race and affect African-Americans greatly because they are in place to ensure that federally funded programs are not stricken by discriminatory practices on the basis of race. This is relevant to affirmative action programs because it provides yet another example of how the legal trend in this country is to recognize that people have inherently been treated differently over the past couple hundreds of years. There is a recognition that we must treat people differently in order to ensure that they get the same opportunities.
Fullilove v. Klutznick. 448 U.S. 448, 100 S.Ct. 2758 (1980)
This action was brought seeking injunctions to prevent enforcement of “minority business enterprise” provision of the Public Works Employment Act of 1977. This provision required that at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from business by minority group members. The court found that the provision was constitutional and dismissed the complaint. This is relevant to the overall idea of affirmative action because it is yet another example of the government or a private party rightfully granting protection and giving advantages to African-American workers because they are a protected class that has been treated poorly in terms of employment over the years.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
This case sets up the procedure that courts can use to determine if employers violated Title VII of the Civil Rights Act by discriminating in its employment practices against minority workers. This is relevant to affirmative action and race-consciousness because it places a burden on employers to ensure that their employment practices are not only non-discriminatory on their face, but that they do not have an adverse impact on a protected class even if their procedures are facially neutral. Decisions like this one have gone to persuade employers that affirmative action programs and race-conscious employment practices should be done to shield themselves from liability under this and similar cases.
Metro Broadcasting, Inc. v. Federal Communications Commission, et al. 497 U.S. 547, 110 S.Ct. 2997 (1990).
Petitions were filed seeking review of the FCC’s order that awarded enhancement for minority ownership in comparative proceedings for new licenses and challenging minority “distress sale” program permitting limited category of existing radio and television stations to be transferred only to minority controlled firms. This case is yet another example of race-consciousness and the fact that race-conscious procedures have continually been upheld on the basis that they are necessary in order to allow members of minority racial groups to gain and retain opportunities that they would not otherwise have. This case being heard and decided in 1990, it shows the evolving trend of federal legislation that not only provides protection for, but gives incentive to employers, agencies, and even the government to purposefully pursue protection of members of protected classes including minority races, and specifically African-Americans.
Richmond v. J.A. Croson Company. 488 U.S. 469, 109 S.Ct. 706 (1989)
In this case, a bidder brought suit challenging the city of Richmond’s plan that required prime contractors awarded city construction contracts to subcontract at least 30% of the dollar amount of each contract to one or more “Minority Business Enterprises.” This is yet another example of the government taking the lead in terms of race-conscious remedies. While the challenge was struck down in the trial court and at the appellate level, the U.S. Supreme Court remanded the case and the Court of Appeals on remand found that the city failed to demonstrate compelling governmental interest justifying the plan, and that the plan was not narrowly tailored to remedy effects of prior discrimination. While the holding was not beneficial for minority sub-contractors, it did show an attempt on the part of the city government to right the wrongs of past discrimination. Even though it got struck down, this case went a long way in terms of showing the people of the city of Richmond, especially members of minority racial groups, that their government recognized the need for race-conscious remedies.
Law Review Articles
Alligood, Brian H. Proof of Racial Discrimination in Employment Promotion Decisions Under Title VII of the Civil Rights Act of 1964. 48 AMJUR POF 3d 75. 2011.
Brian Alligood is a private attorney who specializes in employment practice cases. He mostly defends corporations, hospitals, etc. against claims from employees regarding discriminatory employment practices. His long history in this field gives him the authority to write law review articles about the controlling substantive law that affects the overall law of employment practices. This article focuses on the Title VII aspect of employment law. In general, the article talks about what a complainant must do in order to establish an effective case against an employer. While the article talks about different aspects than just racial discrimination, it focuses on this aspect and also touches on the effects of affirmative action plans and how they are incorporated in a way that seeks to not discriminate against any potential employers. Alligood describes the methods that a plaintiff executes when filing a Title VII complaint and shows statistics on how often these methods work. Not only are there many substantive issues in a Title VII claim that are hard to prove by a plaintiff, but procedurally there are many requirements as well. This article lays out the procedure that one must follow to bring a suit against an employer for discriminatory employment practices or an affirmative action plan that has a disparate impact on one racial group more so than another.
Employer's enforcement of dress or grooming policy as unlawful employment practice under ' 703(a) of Civil Rights Act of 1964 (42 U.S.C.A. ' 2000e 2(a)). 27 A.L.R. Fed. 274. 1976 (original publishing).
This article took a look at different employer practices that sometimes have a different impact on African Americans as opposed to white people and other racial groups. While no author is given, the article is written from a completely neutral point of view and most of all references cases that show the trends that courts have taken in regards to enforcing anti discriminatory laws and the different employment practices that can affect these laws. The article specifically points to things such as facial hair restrictions on employees and also grooming and head hair hygiene. The overwhelming number of cases that show that these types of practices have an adverse and disparate impact on African Americans might be somewhat promising because it shows a trend towards courts protecting people of all races and attempting, at least facially, to get rid of the notion that to be white is to be privileged and to be protected. This will have a direct impact on employers= decisions on how to incorporate their employment practices and will affect the execution of their affirmative action plans.
Chima, Felix O. Wharton, William D. African Americans and the Workplace: Overview of Persistent Discrimination. Lexington Fayette Urban County Human Rights Commission. 2010.
The two authors of this article are members of the Lexington Fayette Urban County Human Rights Commission. They spend their time researching different aspects of human rights violations with a focus on discriminatory employment practices. Wharton and Chima, in this article, address the issues of institutional racism and discrimination and its effects on employment practices across the nation. They focus on the effects that these issues have on African Americans as they contend that this is the group that is most affected by these discriminatory employment actions. They also address the issue of affirmative action and emphasize its importance in getting rid of these discriminatory employment practices. They counter the contention that the market itself will take care of employment discrimination practices with the argument that it hasn=t so far, and without affirmative action plans and help from the federal government we will do nothing but go backwards in terms of employment equality in this country.