Existing anti-discrimination laws are adequate to create equal opportunity

Today’s Guests Are:

Dennis Parker: Director of ACLU Racial Justice Program. Dennis Parker joined the ACLU as the Director of the Racial Justice Project in June of 2006. Prior to joining the ACLU, Parker was the Chief of the Civil Rights Bureau in the Office of New York State Attorney General Eliot Spitzer. He spent 14 years at the NAACP Legal Defense and Education Fund. Parker has also worked with the New York Legal Aid Society. He teaches Race, Poverty and Constitutional Law at Columbia University’s School Law Institute and is a graduate of Middlebury College and Harvard Law School.

Marianne Lado: General Counsel to New York Lawyers for the Public Interest. Marianne supervises and administers the litigation and advocacy program. Marianne was previously a staff attorney at the NAACP Legal Defense and Educational Fund (LDF), where she worked on litigation and advocacy within LDF’s Poverty & Justice Program, representing clients attempting to break barriers of access to health care and quality education. In this capacity Marianne was responsible for developing a health care docket aimed at addressing the scarcity of health resources in medically under-served communities; discriminatory practices by the health care industry, including nursing homes, and also managed care organizations; lack of access to reproductive health services; and related issues of environmental justice. Her many publications include “Unfinished Agenda: The Need for Civil Rights Litigation to Address Continuing Patterns of Race Discrimination and Inequalities in Access to Health Care,” “Breaking the Barriers of Access to Health Care: A Discussion of the Role of Civil Rights Litigation and the Relationship Between Burdens of Proof and the Experience of Denial,” and “A Question of Justice: African-American Legal Perspectives on the 1883 Civil Rights Cases.”

Episode will be available soon, please stay tuned.

MYTH: Existing anti-discrimination laws are adequate to create equal opportunity.

FACT: Anti-discrimination laws are an important but limited tool: they are primarily designed to address some forms of “in your face,” discrimination, but they cannot correct for the full range of discriminatory and unfair practices that limit opportunity in America. These laws are woefully inadequate to the task of ensuring equal opportunity for all Americans. Affirmative action complements these laws by correcting for other forms of discrimination that the law does not or cannot address, and by providing a proactive and efficient way for institutions to overcome discrimination and bias in their hiring and admissions procedures.

Some critics of affirmative action believe that the Civil Rights Movement resulted in far-reaching anti-discrimination laws that are sufficient to advance equality. These critics believe that we should rely on federal and state laws that prohibit discrimination, rather than utilize affirmative steps for fostering equality. Unfortunately, anti-discrimination laws are insufficient to meet the task of creating equal opportunity in a society that has moved beyond explicit “Bull Conner”-style racism and that faces deeper and more subtle forms of racism. Let’s look at some of the reasons that we cannot rely on anti-discrimination law.

Did you know?

Are anti-discrimination laws enough?

The U.S. Equal Employment Opportunity Commission (EEOC), is a agency in charge of enforcing federal anti-discrimination laws. In creating the agency, however, many members of Congress noted its narrow purpose was the “elimination of many of the worst manifestations of racial prejudice.’ But the EEOC was given little power to enforce anti-discrimination laws or to aggressively prevent the various ways in which discrimination manifests itself. It was merely allowed to investigate individual complaints of discrimination and to attempt a process of conciliation between employers and employees. Click HERE for more information regarding the history of the EEOC.

Given this history, it is unsurprising that individuals who do bring discrimination cases to the attention of EEOC receive minimal support in putting forward their cases, even after the EEOC has found that discrimination has occurred. Click HERE for an example of the limited efficacy of EEOC findings of discrimination.

Believe it or not!

On July 6, 2002, two white officers in Inglewood, CA were caught on videotape beating Donovan Chavis, a mentally disabled Black 16 year-old. Following the beating, Morse was fired and Darvish suspended. A third officer, Willie Crook was fired. The Morse/Darvish trial resulted in a hung jury.

Morse and Darvish filed a lawsuit against the city of Inglewood, claiming that the City had discriminated against them in the way they were disciplined for their roles in the Chavis beating. The officers claimed that the third officer, Willie Crook, hit Chavis off camera, and that Crook was treated differently because he is Black. (Crook was fired from the police force, and re-assigned as a civilian jailer). The officers won the lawsuit. The jury ordered that they be paid over 2.4 million dollars for the savage beating of a black child.

Where was anti-discrimination law when Donovan Chavis needed protection? The perverse reality is that today’s anti-discrimination laws served to protect the police officers who were engaged in the most violent acts of discrimination one could imagine, but failed to shield Chavis from this violence. The officers were perceived as the victims, rather than the perpetrators of discrimination.

Read about the LA Times article about this st

LIMITED ENFORCEMENT

At their basic level, anti-discrimination laws set forth a blanket prohibition against discrimination, but they do not provide any mechanisms to prevent it. If an individual or group is discriminated against, anti-discrimination laws do not automatically impose a penalty. Rather, the law requires individuals take action in the form of lawsuits before something is done to stop the discrimination. Such lawsuits, however, are expensive to litigate and extremely difficult to win. In fact, discrimination suits are the most difficult suits to successfully prosecute, at least for female and minority plaintiffs. Only 15% of plaintiffs who raise discrimination claims in the workplace actually succeed (Click HERE for more information on this topic). Much of this difficulty has to do with anti-discrimination law’s outdated conception of what constitutes discrimination, with the exceptionally high burden of proof imposed on such plaintiffs, and with the misguided presumption among many judges that traditional discrimination is a thing of the past. White males, on the other hand, are far more likely to win discrimination suits.

Yet there is no evidence to suggest that after centuries of preference for white males across all American institutions they are suddenly the most likely victims of racial and gender discrimination. In fact, white males are still overrepresented in almost all of our key public and private sector institutions. So these surprising statistics suggest that their disproportionate success in the courts is probably attributable to a greater empathy for their claims on the part of the overwhelming white male bench, or perhaps it is due to the implicit biases of the judges hearing their cases.

Anti-discrimination law cannot possibly address and correct wide patterns of discrimination in the work force. Studies have repeatedly shown that there is measurable and predicable racial discrimination in basic entry level competition for jobs. For instance, researchers at MIT and the University of Chicago performed a study where they sent out résumés to local businesses that had advertised job openings. The résumés were all identical except for one feature: some of the résumés carried stereotypically white names, while others had stereotypically Black names. The researchers found that those résumés with white-sounding names had a success rate that was on average 50% higher than résumés with identical qualifications but Black-sounding names. Read about the résumé study HERE.

Another study, performed in New York, featured applicants for entry-level jobs. These applicants, some of whom were Black and some of whom were white, were coached so that they spoke and dressed in a similar fashion. Additionally, some of the men were given fictitious 18-month prison records for possession of cocaine. When the men went out to interview for jobs, researchers found that white men with prison records were more likely to receive callbacks than black men with no criminal records whatsoever. This means that in the employment arena, being Black is worse than having one penal strike against you! Read more about the hiring study HERE

This is the kind of widespread discrimination–sometimes called “societal discrimination”– that laws cannot address. First, most victims are likely to be unaware that they have been treated unfairly. Second, even when victims are aware of this discrimination, virtually no individual seeking such jobs is in a position to pay several thousands dollars to open such a case, much less prosecute it fully. Only large class actions are viable and lawyers are reluctant to take such cases due to their expense, the time investment required, and the increasing likelihood that they will fail. Obviously, our current anti-discrimination laws don’t allow us to correct for the sort of widespread, systemic, and covert racism that leads to outcomes like the those found in the studies mentioned above.

Did you know?

How do people of color experience discrimination today?

Discrimination in health, education, employment and housing severely restricts opportunities for communities of color, while remaining resistant to outdated anti-discrimination laws. To read about the forms discrimination takes today, click HERE.

Simply put, there is a huge gap between what the law promises, and what equal opportunity requires. This is where affirmative action comes into play. By focusing on outcomes, it allows us to tailor our anti-discrimination tools to the needs of a given environment. Thus, when viewed in the proper light, we can see that it corrects for some of our society’s deep-seated and hardest to reach problems.

Some critics of affirmative action have suggested that anti-discrimination law should be strengthened to be more effective in creating equal access to the workforce and educational institutions. While stronger tools are certainly necessary, the reality is that the current trend in anti-discrimination law is moving in the opposite direction. A renaissance of anti-discrimination law is not on the horizon. Even if it were, anti-discrimination law remains a background set of rules that function primarily as an after-the-fact penalty for discrimination, a penalty that is seldom assessed. Lawsuits are thus options of last resort. They are not appropriate as mechanisms for opening the doors of opportunity and they do not create incentives to rethink practices and attitudes that limit the opportunities of women and minorities. Affirmative action remains necessary as a proactive tool to provide genuine access and opportunity throughout all spheres of American life. If anti-discrimination law is the stick–weak though it may be, then affirmative action is the carrot.


Did you know?

Anti-discrimination law, limited as it is to addressing some forms of intentional discrimination, has been steadily scaled back by conservative judges on the Supreme Court and throughout the federal court system. This rollback of civil rights has gone virtually unnoticed by the general public in part because the rulings are technical in nature, and are generally perceived to effect only a small number of Americans. In fact, the rollback of civil rights effects all Americans. Rules eroding access to the courts and raising burdens beyond the reach of most plaintiffs shred the fabric of legal protection and compromise our justice system. However, many Americans are beginning a fight to take back our rights and to correct the imbalance on the courts. To learn more about these efforts, click HERE.

To learn more about how you can get involved in reversing the rollback of civil rights, read”Awakening from the Dream”, edited by Denise Morgan, Rachel Godsil, and Joy Moses

Today, the majority of federal judges have been appointed by conservative presidents and a significant number of these judges are members of the Federalist Society. The Federalist Society is an organization of extremely conservative judges, law professors and lawyers. It has called for a scaling back of civil rights protections and its judges tend to range from skeptical to hostile toward these claims. To learn more about the Federalist Society and its role in destabilizing civil rights law, click HERE.

IMPLICIT BIAS

Bull Connor and police dogs: an image of obvious, old-style racism

No longer is discrimination symbolized by the Bull Connors of the world, with their racism on display through firehoses and dogs. Instead, racism has become more subtle and more often institutional. Anti-discrimination law rooted in the old style discrimination of 1960s and 70s is just not well equipped to address this contemporary reality. This is especially true when people don’t even know that they are engaging in discriminatory practices. Today there is a wealth of information that proves that even people who are not overtly racist, people who would never use a racial slur, still tend to make racially biased decisions. Research demonstrates that discriminatory decisions and outcomes are largely influenced by stereotypes, or implicit biases that occur at the unconscious level. This implicit bias has been shown to occur on a wide scale and to negatively impact how we think about and behave toward racial minorities – even without knowledge that we are discriminating.

“[B]ias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become the country’s law and practice.”

— The Honorable Justice Ruth Bader Ginsburg in Adarand Contractors, Inc. v. Pena

Although scholars and lawyers have long advocated for courts to see decisions influenced by unconscious bias as discriminatory in nature, the judiciary has been reluctant to develop an effective approach to the resolution of this problem. Yet, we know that various forms of bias influence a host of perceptions and decisions that influence the employment opportunities of minorities and women. Proactive policies such as affirmative action help bridge the gap between our limited ability to prevent unconscious bias and our national commitment to providing equal opportunity


STRUCTURAL RACISM

In addition to direct discrimination and unconscious bias, there is yet another set of obstacles that limit equal opportunity, yet fall outside the scope of the law to correct. Structural racism captures the variety of ways that our very social structure operates to reinforce and perpetuate disadvantages that have been built into our society over time. Structural racism requires no particular individual to either intentionally or unconsciously discriminate in order for individuals to be denied equal opportunity. Instead, a variety of conditions, most of which at one time were intentionally created to disadvantage people of color, operate intergenerationally to exclude or marginalize those groups virtually automatically.

For example, minorities are often disadvantaged in the competition for jobs due to “spatial mismatch” — the fact that jobs are situated far away from the communities where minorities live. The decisions about where to locate industry, along with decisions to limit, for example, public transportation to those jobs, combines to deprive minorities of an equal opportunity. These decisions are often the product of past discrimination, conscious or unconscious bias, and political preferences for white and affluent communities. Their effects on people of color can be profound, even though there may be no intent to discriminate against them in the here and now. This kind of structural racism falls far outside the scope of antidiscrimination law, but the conditions it reflects bear no resemblance to a meaningful definition of equal opportunity. Affirmative action policies address these sorts of problems. They encourage employers and other decision makers to take affirmative steps to minimize the effects of such conditions.

To learn more about structural racism, click HERE

Mythbusting Homework:

  1. Consider the police employment discrimination suit discussed above. What are the implications when a city like Inglewood is ordered to pay $2.4 million for disciplining police for such egregious misconduct? Does this verdict cause police departments to avoid disciplining their officers for the use of excessive force? How does it affect the victims of their violence?

  2. Learn more about the unconscious biases. Take the Implicit Associations Test (IAT) yourself. Challenge your friends and colleagues to do the same. Click HERE to read more about Implict Bias.

  3. Discuss what you learned about your own biases. Were you aware of them? Consider how these biases can silently affect a person’s decisions and actions.

Bottom line: Affirmative Action helps to fill the critical gaps in anti-discrimination law and, in so doing, promotes equity in education, employment and a host of other arenas.

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