Antidiscrimination Law
GINA, Big Data, and the Future of Employee Privacy
Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. This Feature examines the Genetic Information Nondiscrimination Act (GINA) and argues that it offers a blueprint for preventing employers from breaching employee privacy.
Is Korematsu Good Law?
This Essay argues that the Supreme Court’s claim to overrule Korematsu in Hawaii is both empty and grotesque. It argues that a decision to overrule a prior case is not meaningful unless it specifies which propositions it is disavowing, and Hawaii’s emptiness means to conceal its disturbing affinity with Korematsu.
Masquerading Behind a Facade of National Security
What will happen when those discriminated against in the name of national security turn to the courts for legal protection? This Essay refracts this question through the lens of Korematsu, examining how courts will—and should—respond to the dual needs to promote national security and protect fundamental democratic liberties.
This Is (Not) Who We Are: Korematsu, Constitutional Interpretation, and National Identity
Asserting the continued usefulness of legal claims, this Essay asks a critical question: what would it really take to overturn Korematsu and end structures of subordination? It argues that a true overruling of Korematsu requires a generative interpretation of our Constitution to uphold the inherent dignity of all human beings.
Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop
Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial and legislative actors going forward.
Of Power and Process: Handling Harassers in an At-Will World
Pressure is mounting on companies to take swift disciplinary action regarding alleged sexual harassment. But our employment law incentivizes employers to tolerate high-ranking harassers while cracking down on inappropriate behavior by the rank-and-file. This Essay suggests a better path forward.
Queering Sexual Harassment Law
Franchina v. City of Providence may be the first judicial opinion of the #MeToo movement. But it also points beyond the #MeToo movement, exemplifying harassment that is motivated by desires to enforce gender roles and why sexual orientation discrimination is sex discrimination under Title VII.
Reconceptualizing Sexual Harassment, Again
The #MeToo movement has spurred a renewed focus on sexual harassment. But often, the narratives that emerge overemphasize sexualized forms of harassment at the expense of broader structural causes. This Essay builds on Schultz’s previous work to explore those institutional drivers of harassment.
Sexual Harassment Law After #MeToo: Looking to California as a Model
The #MeToo movement has motivated people to speak out about sexual harassment, but many of those speaking remain vulnerable to retaliation. This Essay provides the perspective of an employment lawyer on the shortcomings of sexual harassment law and how state law can afford greater protection.
Was Sexual Harassment Law a Mistake? The Stories We Tell
Does our sexual harassment law hinder the larger project of reducing harassment? This Essay demonstrates that the law constrains stories of harassment and hamstrings our calls for reform. Ultimately, the law, not just public perception, must change if this movement is to have a lasting effect.
What About #UsToo?: The Invisibility of Race in the #MeToo Movement
The #MeToo movement has rightly been praised for breaking long-held silences about harassment. It has also rightly been critiqued for ignoring unique forms of harassment that women of color face. This Essay calls for a sexual harassment law that embraces intersectional, multidimensional identity.
The Jurisprudence of Mixed Motives
How do various domains of law deal with mixed motives? Are we condemned by our darkest motive, forgiven according to our noblest, or something in between? This Article develops a precise descriptive vocabulary for how courts analyze motives, concluding that there are only four motive standards in common use.
Community Policing as a Counter to Bias in Policing: A Personal Perspective
Some forty years ago, I was a very young black man living in the Florida panhandle. My dream was to get into law enforcement, but I first needed to get into the state academy, which required the endorsement of a Florida police executive. The chief of the Florida Agricultural and Mechanical University Police Department—a black chief in an historically black college—turned me down. That left Leon County Sheriff Raymond Hamlin, a man whose looks and manner seemed to me to scream bigot. A self-styled “redneck,” he was locally famous for once proclaiming to a reporter, “I like my women the same way I like my coffee. White and hot.”
Systemic Implicit Bias
Legal discourse on implicit bias has changed the way scholars and citizens think about race in the justice system. Ever-growing scholarship, much of it empirical, has identified, confronted, and sought to address how implicit bias operates in nearly every criminal justice context— especially in policing, prosecuting, judging, and juror decision-making. This focus on racially fraught legal processes, and the subsequent search to mitigate or eliminate the operations of implicit bias within each of them, has been an illuminating force not only for those who seek to expose the reality of a biased system, but also for those who recognize that the fairness-driven ideals of the American legal system are not being realized. Thus, it is not surprising that efforts designed to “deal with” implicit bias in the criminal justice system—whether through judicial trainings, jury instructions, or structural safeguards—have become increasingly popular.
The Implicit Racial Bias in Sentencing: The Next Frontier
A prominent life scientist recently declared that the Higgs boson particle, the Internet, and implicit bias are the three most important discoveries of the past half-century. In President Obama’s commencement address at Howard University last year, Obama stated: “And we knew . . . that even the good cops with the best of intentions—including, by the way, African-American police officers—might have unconscious biases, as we all do.” Why has implicit racial bias worked its way into a presidential address? More importantly, after focusing so long on explicit biases, what do we need to know and do about the pervasive problem of implicit racial bias in the courtroom?
A Trademark Defense of the Disparagement Bar
The Supreme Court will soon hear argument over whetherCongress may forbid registering trademarks that consist of “matter which may disparage or falsely suggest aconnection with persons, living or dead, institutions, beliefs, or nationalsymbols, or bring them into contempt, or disrepute.” The disparagement bar is thebasis for the 2014 ruling by the Trademark Trial and Appeal Board (TTAB) thatordered the cancellation of trademark registrations belonging to the WashingtonNFL team because the term “redskin” disparages Native Americans. Late last year, however, theFederal Circuit ruled en banc that the disparagement bar is unconstitutional onFirst Amendment grounds in In re Tam.