Antidiscrimination Law
Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws
Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting the virus to a sexual partner had been reduced by 93%, nearly the same reduction of risk associated with condom usage. Shortly thereafter, Rhoades engaged in consensual sexual activity with a man he met on a social networking site. The two men used additional protection. But Rhoades did not disclose his HIV-positive status until several days after their encounter. Rhoades’s sexual partner did not contract the virus. He pressed charges anyway under Iowa’s HIV criminal statute, which makes it a felony to expose another person to HIV. A jury convicted Rhoades in 2008. He was sentenced to twenty-five years in prison.
In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education
Sotomayor’s Supreme Court Race Jurisprudence: “Fidelity to the Law”
During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. In this Essay, Professor Hernández argues that the Supreme Court’s race-related jurisprudence illuminates Justice Sotomayor’s continued commitment to her stated judicial philosophy of “fidelity to the law.” The record suggests that Justice Sotomayor has not sought to unilaterally impose her own personal racial policy preferences, but has instead worked as a team player to scrupulously apply legal precedents, rules of standing, and congressional intent.
Unveiling Inequality: Burqa Bans and Nondiscrimination Jurisprudence at the European Court of Human Rights
122 Yale L.J. 1089 (2013).
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of state-sponsored discrimination against women, and Congress has the authority under Section 5 of the Fourteenth Amendment to take steps to repair that unhappy legacy.
An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
120 Yale L.J. 1820 (2011). Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overlooked a crucial source that defines the fundamental civil liberties of American citizens. The Northwest Ordinance of 1787 contains in its Articles of Compact a set of rights that constituted the organic law—the fundamental law—of the United States. Rather than limiting federal power like the Bill of Rights, the Northwest Ordinance enumerates those rights that no state shall abridge. Not only should these rights qualify for protection under the Due Process Clause of the Fourteenth Amendment, but they also give substance to the terms “privileges” and “immunities” as used and understood by Americans throughout the nineteenth century. This Note chronicles how the rights in the Northwest Ordinance spread, through various acts of Congress, from the Northwest Territory to all corners of the United States. These rights were integral to the organic law of twenty-eight of the thirty states (a supermajority) that ratified the Fourteenth Amendment by 1868. In addition, the admission of new states into the Union was often predicated on two conditions that state constitutions had to satisfy: they had to be republican and not repugnant to the principles of liberty in the Northwest Ordinance. Once they acquired statehood, however, new states were free to change their constitutions and violate the fundamental civil rights enumerated in the Ordinance. It is this defect in the organic laws of the United States that the Fourteenth Amendment was designed to repair, and it is to the Northwest Ordinance that we must look to understand the rights protected by the Fourteenth Amendment.
From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
120 Yale L.J. 1278 (2011). For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective. Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness. The Article’s triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle’s logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).
The Common School Before and After Brown: Democracy, Equality, and the Productivity Agenda
120 Yale L.J. 1455 (2011). In Brown's Wake: Legacies of America's Educational Landmark By Martha Minow New York, NY: Oxford University Press, 2010, pp. 320. $24.95.
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Discrimination by Comparison
120 Yale L.J. 728 (2011). Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary’s dependence on comparators—those who are like a discrimination claimant but for the protected characteristic—as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today’s mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed in second-generation intersectionality, identity performance, and structural discrimination theories. By treating comparators as an essential element of discrimination, instead of as a heuristic device to help discern whether discrimination has occurred, courts have largely foreclosed these other theories from consideration. At the same time, courts have further shrunk the very idea of discrimination by disregarding a central lesson from harassment and stereotyping jurisprudence: discrimination can occur without a comparator present. The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina permits courts to evaluate discrimination claims without appearing to engage in a subjective analysis of workplace dynamics. Given the complex nature of both identity and discrimination, however, the comparisons produce a false certainty at best. By contrast, alternate methodologies, including the contextual consideration favored in harassment and stereotyping jurisprudence as well as the hypothetical comparator embraced in European law, offer a meaningful framework for matching discrimination law and norms to workplace facts, while preserving judicial legitimacy. With comparators dislodged from their methodological pedestal, we may yet recover space for the renewed development of discrimination jurisprudence and theory.
Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s
119 Yale L.J. 316 (2009). Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal protection doctrine was still quite fluid. Furthermore, through this attempted identity transformation, activists replaced stigmatizing medico-religious models of homosexuality with self-affirming civil rights-based models. This identity transformation through analogy cemented gay rank-and-file perception of the social treatment they faced as unjust, and helped determine what remedies gays would seek. For example, defensive gay litigation of the 1950s soon gave way to the affirmative impact-type litigation of the civil rights movement. Similarly, in the image of the 1960s racial justice movement, 1970s gays began to pursue legal acceptance of gay marriage rather than first seeking intermediate relationship recognition. Thus, analogies and identity claims can be useful tools for perceiving and remedying oppression. They should, however, be tools that unite, not divide groups: gays and blacks, especially, should recognize their (contingent) commonalities, created as gays remade themselves in the image of blacks.
Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms
118 Yale L.J. 1182 (2009). In a fiercely competitive labor market, large American law firms universally offer some paid leave to attorneys after the birth of the child. This Note offers an empirical investigation of those policies, finding that all firms offer paid leave to new mothers, and many firms offer at least some leave to fathers as well. In most cases, however, men receive much less leave than women. The most grossly gender-disproportionate policies harm attorneys of both genders—perpetuating stereotypes about women, stigmatizing fathers who spend time with their children, and entrenching the “ideal worker” norm that scholars have protested. Based on this analysis, the Note illustrates how some policies are vulnerable to a Title VII challenge by male employees. In particular, law firms that offer maternity leave of three to four months, without offering male attorneys a parallel benefit, violate Title VII’s prohibition on sex discrimination. Furthermore, some firms offering facially neutral policies may also manifest impermissible gender bias in the application of parental leave.
Racial Classification in Assisted Reproduction
118 Yale L.J. 1844 (2009). This Note considers the moral status of practices that facilitate parental selection of sperm donors according to race. Arguments about intentions and consequences cannot convincingly explain the race-conscious design of donor catalogs. This prompts us to examine the expressive dimension of wrongful discrimination. Even practices marked by innocent motives and benign effects can give reason for pause when they needlessly entrench divisive assumptions about how people of a particular race think or act. Race-based differentiation in voting ballots, dating websites, and donor catalogs helps us to tease out the subtle normative tensions that racial preferences occasion in the contexts of citizenship, romance, and reproduction. These reflections suggest that racially salient forms of donor disclosure are pernicious social practices, which, while operating beyond the reach of the law, ought to be condemned as bad policy. The Note concludes by developing reproductive choice-structuring mechanisms that aim to balance respect for intimacy, autonomy, and expressions of racial identity with responsibility to work against conditions that divide us.
Olmstead v. L.C. and the Voluntary Cessation Doctrine: Toward a More Holistic Analysis of the "Effectively Working Plan"
118 Yale L.J. 1013 (2009).
Weight Discrimination: One Size Fits All Remedy?
117 Yale L.J. 1900 (2008). Being fat is one of the most devastating social stigmas today. In seeking a legal remedy, commentators and advocates appeal to existing models of employment discrimination: disability, race, sex, and more recently, appearance. Fat people do face discrimination along these fronts. Weight discrimination, however, is a distinct form of discrimination. Weight discrimination blames fat people for their excess weight. Commentators fail to address the central problem when they ignore this unique psychological mechanism. More broadly, commentators miss the boat by focusing entirely on weight discrimination in employment. To really aid fat people, commentators and advocates should begin with an even more harmful area of weight discrimination: health care and health insurance.
When Parents Aren't Enough: External Advocacy in Special Education
117 Yale L.J. 1802 (2008). The Individuals with Disabilities Education Act (IDEA) has been widely celebrated for providing millions of disabled children with broader educational and life opportunities. This Note seeks to improve the implementation of the IDEA by questioning one of its key assumptions: that parents possess the tools to advocate for their children in special education matters. This Note argues that many parents need assistance to achieve optimal outcomes for their children because of the complexity of both the disabilities involved and the formal rules of the system itself. Several policy options are considered in the hope that local educational agencies will implement pilot programs to further explore the issue of external advocacy in special education.
Defining the Protected Class: Who Qualifies for Protection Under the Pregnancy Discrimination Act?
117 Yale L.J. 1215 (2008).