Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality

University of Chicago Press
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Gerry Handley faced years of blatant race-based harassment before he filed a complaint against his employer: racist jokes, signs reading “KKK” in his work area, and even questions from coworkers as to whether he had sex with his daughter as slaves supposedly did. He had an unusually strong case, with copious documentation and coworkers’ support, and he settled for $50,000, even winning back his job. But victory came at a high cost. Legal fees cut into Mr. Handley’s winnings, and tensions surrounding the lawsuit poisoned the workplace. A year later, he lost his job due to downsizing by his company. Mr. Handley exemplifies the burden plaintiffs bear in contemporary civil rights litigation. In the decades since the civil rights movement, we’ve made progress, but not nearly as much as it might seem.

On the surface, America’s commitment to equal opportunity in the workplace has never been clearer. Virtually every company has antidiscrimination policies in place, and there are laws designed to protect these rights across a range of marginalized groups. But, as Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen compellingly show, this progressive vision of the law falls far short in practice. When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they’ve lost regardless of the outcome of the case. Employer defendants also are dissatisfied with the system, often feeling “held up” by what they see as frivolous cases. And even when the case is resolved in the plaintiff’s favor, the conditions that gave rise to the lawsuit rarely change. In fact, the contemporary approach to workplace discrimination law perversely comes to reinforce the very hierarchies that antidiscrimination laws were created to redress.
Based on rich interviews with plaintiffs, attorneys, and representatives of defendants and an original national dataset on case outcomes, Rights on Trial reveals the fundamental flaws of workplace discrimination law and offers practical recommendations for how we might better respond to persistent patterns of discrimination.
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About the author

Ellen Berrey is assistant professor of sociology at the University of Toronto and an affiliated scholar of the American Bar Foundation. She is the author of The Enigma of Diversity. Robert L. Nelson is professor of sociology and law at Northwestern University and the MacCrate Research Chair at the American Bar Foundation. Laura Beth Nielsen is professor of sociology at Northwestern University and research professor at the American Bar Foundation.
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Additional Information

Publisher
University of Chicago Press
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Published on
Jun 22, 2017
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Pages
320
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ISBN
9780226466996
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Language
English
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Genres
Law / Civil Rights
Law / General
Law / Labor & Employment
Social Science / Sociology / General
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Content Protection
This content is DRM protected.
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Eligible for Family Library

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The book tells the story of a highly controversial civil rights case which involved the Alaska salmon industry. That industry is an intense summer operation in mostly remote wilderness. The participants were drawn from a wide range of sources: Natives who had harvested salmon for centuries, Italian, Croatian and Scandinavian fishermen and Asians who historically manned the canning lines. The unskilled cannery work was supplied by a predominantly Filipino controlled union. In the early 1970s young activist members of that union initiated a class action suit against Wards Cove Packing Company contending that minority employees were segregated into separate housing and messing and excluded from better paying jobs. The plaintiff s lost the case at trial to the surprise of many and multiple appeals followed. The Supreme Court in a 5-4 decision, over a bitter dissent, ruled in favor of Wards Cove holding that discrimination had not been proven by either the class of workers or by any single worker. The high courts decision was roundly criticized in the press and academia and Congress attempted to intervene. The executive branch became an advocate, first as a party, and later as a friend of the court but changed sides after an election. The case tested the boundary of separation of powers but ultimately the Supreme Court found a way to insulate its decisional process from Congressional interference. There has been a lingering misunderstanding of the case in the media. It has been recently re-enacted as a denial of justice and it has been described by some academics as the death knell of the civil rights movement. This book explains how the plaintiff s lost the main event at trial and how multiple appeals heard by 27 judges did not change the facts as found by the trial court as to what actually happened.
Equality is an ideal to which we all aspire. Yet the more closely we examine it, the more its meaning shifts. How do we explain how equal treatment can in effect lead to inequality, while unequal treatment might be necessary in order to achieve equality? The apparent paradox can be understood if we accept that equality can be formulated in different ways, depending on which underlying conception is chosen. In this highly readable yet challenging book, Sandra Fredman examines the ways in which discrimination law addresses these questions. The new edition retains the format of the highly successful first edition, while incorporating the many new developments in discrimination law since 2002, including the Equality Act 2010, human rights law, and EU law. By using a thematic approach, the book illuminates the major issues in discrimination law, while at the same time imparting a detailed understanding of the legal provisions. The comparative approach is particularly helpful; by examining comparable law in the US, India, Canada, and South Africa, as well as the UK, the book exposes common problems and canvasses differing solutions. As in the previous edition, the book locates discrimination in its wider social and historical context. Drawing on the author's wide experience of equality law in many jurisdictions, she creates an analytic framework to assess the substantive law. The book is a thought-provoking and accessible overview of the way in which equality law has adjusted to new and increasingly complex challenges. It concludes that progress has been evident, but uneven. Those dedicated to equality still face an exacting, but ultimately deeply rewarding, task.
In Unmarried Couples, Law, and Public Policy, Cynthia Grant Bowman explores legal recognition of opposite-sex cohabiting couples in the United States. Unmarried cohabitation has increased at a phenomenal rate in the U.S. over the last few decades, but the law has not responded to the legal issues raised by this new family form. Although a majority of cohabiting unions dissolve within the first two years, many are longer in term and function like other families; a large number of children also reside in these households. If one partner dies, is injured, or leaves the family, the remaining family members are left in an extremely vulnerable position in almost every state without any type of survivors' benefits, compensation for loss of a wage-earning partner, or remedies similar to those available upon dissolution of a marriage. The author argues that the many benefits attendant upon formal marriage should be extended to cohabitants who have lived together for more than two years or give birth to a child. In order to avoid these consequences, a couple would need to opt out of them by contract. Professor Bowman reaches this conclusion after a thorough review of the history of the legal treatment of cohabitation in the United States, the inadequacy of the legal remedies available to cohabitants in most states, the now-voluminous social science literature about cohabitation, and the experience of six other countries (England, Canada, Australia, France, The Netherlands, and Sweden) that have attempted a variety of legal reforms to address the problems of cohabitants.
Genocide—the intent to destroy in whole or in part, a group of people.

In Open Season, award-winning attorney Ben Crump exposes a heinous truth: Whether with a bullet or a lengthy prison sentence, America is killing black people and justifying it legally. While some deaths make headlines, most are personal tragedies suffered within families and communities. Worse, these killings are done one person at a time, so as not to raise alarm. While it is much more difficult to justify killing many people at once, in dramatic fashion, the result is the same—genocide.

Taking on such high-profile cases as Trayvon Martin, Michael Brown, and a host of others, Crump witnessed the disparities within the American legal system firsthand and learned it is dangerous to be a black man in America—and that the justice system indeed only protects wealthy white men.

In this enlightening and enthralling work, he shows that there is a persistent, prevailing, and destructive mindset regarding colored people that is rooted in our history as a slaveowning nation. This biased attitude has given rise to mass incarceration, voter disenfranchisement, unequal educational opportunities, disparate health care practices, job and housing discrimination, police brutality, and an unequal justice system. And all mask the silent and ongoing systematic killing of people of color.

Open Season is more than Crump’s incredible mission to preserve justice, it is a call to action for Americans to begin living up to the promise to protect the rights of its citizens equally and without question.

 

The New York Times Bestseller

In May 2013, Glenn Greenwald set out for Hong Kong to meet an anonymous source who claimed to have astonishing evidence of pervasive government spying and insisted on communicating only through heavily encrypted channels. That source turned out to be the 29-year-old NSA contractor and whistleblower Edward Snowden, and his revelations about the agency's widespread, systemic overreach proved to be some of the most explosive and consequential news in recent history, triggering a fierce debate over national security and information privacy. As the arguments rage on and the government considers various proposals for reform, it is clear that we have yet to see the full impact of Snowden's disclosures.

Now for the first time, Greenwald fits all the pieces together, recounting his high-intensity ten-day trip to Hong Kong, examining the broader implications of the surveillance detailed in his reporting for The Guardian, and revealing fresh information on the NSA's unprecedented abuse of power with never-before-seen documents entrusted to him by Snowden himself.
Going beyond NSA specifics, Greenwald also takes on the establishment media, excoriating their habitual avoidance of adversarial reporting on the government and their failure to serve the interests of the people. Finally, he asks what it means both for individuals and for a nation's political health when a government pries so invasively into the private lives of its citizens—and considers what safeguards and forms of oversight are necessary to protect democracy in the digital age. Coming at a landmark moment in American history, No Place to Hide is a fearless, incisive, and essential contribution to our understanding of the U.S. surveillance state.

Diversity these days is a hallowed American value, widely shared and honored. That’s a remarkable change from the Civil Rights era—but does this public commitment to diversity constitute a civil rights victory? What does diversity mean in contemporary America, and what are the effects of efforts to support it?

Ellen Berrey digs deep into those questions in The Enigma of Diversity. Drawing on six years of fieldwork and historical sources dating back to the 1950s and making extensive use of three case studies from widely varying arenas—housing redevelopment in Chicago’s Rogers Park neighborhood, affirmative action in the University of Michigan’s admissions program, and the workings of the human resources department at a Fortune 500 company—Berrey explores the complicated, contradictory, and even troubling meanings and uses of diversity as it is invoked by different groups for different, often symbolic ends. In each case, diversity affirms inclusiveness, especially in the most coveted jobs and colleges, yet it resists fundamental change in the practices and cultures that are the foundation of social inequality. Berrey shows how this has led racial progress itself to be reimagined, transformed from a legal fight for fundamental rights to a celebration of the competitive advantages afforded by cultural differences.

Powerfully argued and surprising in its conclusions, The Enigma of Diversity reveals the true cost of the public embrace of diversity: the taming of demands for racial justice.
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