Publications
COVID-19 Widens Disparities for Black, Indigenous, and Other Workers of Color
Chapter in Work Law Under COVID-19 (Sachin S. Pandya & Jeffrey M. Hirsch eds., 2021).
COVID-19 has highlighted how weak labor protections disproportionately impact Black, Indigenous, and other workers of color. Those workers are overrepresented in essential jobs and low-wage work. As a result, they risk exposure to COVID-19 in jobs with insufficient benefits and limited bargaining power. Advocates should build upon the current racial justice movement to advocate for collective worker power and change in workplace conditions.
Also published in: Jamillah Bowman Williams, COVID-19 Widens Disparities for Workers of Color, 35 ABA J. of Lab. & Emp. Law 33 (2020).
Beyond Sex+: Acknowledging Black Women in Employment Law and Policy
25 Emp. Rts. & Emp. Pol’y J. (forthcoming Winter 2021).
DOWNLOAD SSRNAs the United States makes history with Kamala Harris becoming the First Black woman Vice President, systemic racism and sexism remain pervasive and stifle life outcomes for Black women in America. The explosion of the MeToo movement in 2017 and the killing of George Floyd in 2020 both led to broad activism, online and on the ground with mass protests, strikes, boycotts, and calls for legal reform. Workers, students, investors, community leaders, and politicians began demanding change for both gender and racial equity. Yet, Black women workers also face a divided political climate with rampant systemic racism and sexism, and they often remain silenced. Former president Trump not only expressed hostility towards women and repeatedly failed to condemn white supremacists, but he also used his executive power to ban all anti-bias training that even mentioned the concept of intersectionality. While there is more promise for Black women with the Biden-Harris administration taking office and Democrats taking control of the senate, it remains unclear whether this momentum will lead to policy reform and deeper structural change that will substantively improve outcomes for Black women. This Article focuses on the challenges Black women continue to face when bringing intersectional employment claims, despite experiencing high rates of discrimination and harassment. With the ongoing movement for racial justice and increasing receptiveness to discuss and address systemic racism, now is the time to begin a more explicit discussion of intersectionality and reshape the limited analytical framework of antidiscrimination law. This is a necessary step towards acknowledging and addressing the realities of the discrimination these women face.
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This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. Part I describes intersectional discrimination and harassment and discusses how they shape the workplace experiences of Black women. Part II examines how discrimination and harassment are analyzed under Title VII and how existing legal frameworks are problematic for Black women plaintiffs. Part III provides an overview of the current state of the law, focusing on how courts diverge in their approach to intersectional claims, leaving much confusion for employees, employers, and attorneys. Part IV analyzes more recent trends in courts and state policy, including the impact of Bostock v. Clayton, the concept of discriminatory harassment in state law, and the reasonable Black woman standard. Part V concludes with a discussion of future directions for antidiscrimination law, including how reform efforts can better address the existing gaps in the law to make Title VII and related state policies more effective at protecting Black women workers. With the ongoing movement for racial justice and increasing receptiveness to discuss and address systemic racism, now is the time to begin a more explicit discussion of intersectionality and reshape the limited analytical framework of antidiscrimination law. This is a necessary step towards acknowledging and addressing the realities of the discrimination these women face.
Maximizing #MeToo: Intersectionality and the Movement
62 Boston College L. Rev. (forthcoming June 2021).
DOWNLOAD SSRNAlthough women of color experience high rates of harassment and assault, they have largely been left at the margins of the #MeToo movement, in terms of (1) the online conversation; (2) traditional social movement activity occurring offline; and (3) resulting legal activity. This article analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to fail women of color thirty years beyond Kimberlé Crenshaw’s initial framing of intersectionality theory. I discuss the weaknesses of the reform efforts and argue for more tailored strategies that take into account the ineffectiveness of our current Title VII framework, and more specifically, the continuing failure of the law to properly deal with intersectionality. This analysis and the resulting proposal will demonstrate how #MeToo can be leveraged as an opportunity to reshape law and our organizations in a way that better protects all women, and particularly women of color.
Board Gender Diversity: A Path to Achieving Substantive Equality in the U.S. (with Kimberly Houser)
63 William and Mary L. Rev. (forthcoming 2022).
DOWNLOAD SSRNThe United States has been rapidly losing its status as a global power founded on democratic principles. This is in part due to the leadership’s active involvement in reducing the rights of women, Black people, and other marginalized groups. We use gender diversity on corporate boards as a comparative example, to examine the legal frameworks designed to promote equality in the EU and U.S. We begin by examining the individual, institutional, and cultural reasons why the U.S. lags so far behind the rest of the industrialized world in board diversity. We then discuss recent activism by powerful institutions such as NASDAQ and Goldman Sachs that may be signs of broader cultural change and receptiveness to positive action. Next, we conduct an analysis of the legislative, cultural, and constitutional factors that have helped the EU succeed in increasing the representation of women on boards. We conclude by offering a normative solution that can pave the way to achieving gender equality in the United States. Learning from the EU model, the U.S. must let go of the Equal Rights Amendment and adopt a Substantive Equality Amendment to the Constitution requiring positive action to facilitate laws enabling gender equality. This solution will have broad cultural impact outside of the board context and will help change the lived experiences and outcomes for women in the United States for generations to come. It will change the course of history.
#BlackLivesMatter: Getting from Contemporary Social Movements to Structural Change
109 Calif. L. Rev. (forthcoming 2021)
DOWNLOAD SSRNThe sustained activism that followed George Floyd’s death and the ongoing movement for racial justice have demonstrated how social media can be a crucial mechanism of social change. We have seen how online and on-the-ground activism can fuel each other and build momentum in ways neither can achieve in isolation. In this essay, we use empirical data to support a theoretical model that illustrates how contemporary movements can use social media to build awareness, educate, and most importantly, promote the kinds of offline action that can lead to deeper structural change. In this case, BLM has effectively leveraged social media to fuel and facilitate mass protests and broaden social awareness. In 2020-21, we have seen this begin to inspire deeper social, cultural and legal change, in ways that previously felt like distant hope.
This Article is the first piece of legal scholarship to examine the argument made by companies which, in a bid to avoid compelled disclosure of their diversity data, argue that it is trade secret information. Instead of hiding this information, I argue that we should treat diversity data and strategies as public goods. This type of open model will advance the goals of equal opportunity law by raising awareness of inequities and opportunities, motivating employers to invest in effective practices, facilitating collaboration on diversity goals, fostering innovation, and increasing accountability for action and progress.
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Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders in finance, technology, the legal profession, and film have been mobilizing to improve access and equity. However, there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and other diversity advocates use FOIA and discovery requests to access relevant employment information, many companies have responded with virulent attempts to maintain secrecy. To conceal this information, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. When we think of trade secrets, we often think of famous examples such as the Coke formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac sandwich – not diversity information.
#MeToo as Catalyst: A Glimpse into 21st Century Activism
2019 U. Chi. Legal F. 371, 374 (2019).
DOWNLOAD SSRNThis Essay discusses the #MeToo movement within the broader context of social media activism, explaining how this unique form of collective action is rapidly evolving. We offer empirical insights into the types of conversations taking place under the hashtag and the extent to which the movement is leading to broader social change. While it is unclear which changes are sustainable over time, it is clear that the hashtag #MeToo has converted an online phenomenon into tangible change, sparking legal, political and social changes in the short run.
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The Twitter hashtag #MeToo has provided an accessible medium for users to share their personal experiences and make public the prevalence of sexual harassment, assault, and violence against women. This online phenomenon, which has largely involved posting on Twitter and “retweeting” to share other’s posts has revealed crucial information about the scope and nature of sexual harassment and misconduct. More specifically, social media has served as a central forum for this unprecedented global conversation, where previously silenced voices have been amplified, supporters around the world have been united, and resistance has gained steam.
This Essay provides data to illustrate some of these changes, which demonstrate how posting online can serve as an impetus, momentum, and legitimacy for broader movement activity and changes offline more characteristic of traditional movement strategies.
#MeToo and Public Officials: A Post-election Snapshot of Allegations and Consequences
November 8, 2018, Georgetown University Law Center
DOWNLOAD GTOWN LAWIn the most exhaustive accounting of its kind to date, this study shows that a total of at least 138 government officials in both elected and appointed positions, had been publicly reported for sexual harassment, assault, misconduct, or violence against women between the 2016 and 2018 elections. A large majority of the accusations surfaced after October 2017, when allegations against Harvey Weinstein made news and the #MeToo hashtag exploded on social media.
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The accused included members of the U.S. Congress, state legislators, other elected officials, and appointed officials. After the 2018 election, 75 percent of the accused were out of office. Beyond losing political positions, a number of officials also faced legal action, including civil lawsuits and criminal charges. This type of accountability was unprecedented.
Accountability as a Debiasing Strategy: Testing the Effect of Racial Diversity in Employment Committees
103 Iowa L. Rev. 47 (2018)
DOWNLOAD SSRNThis Article presents a framework that captures the type of solutions needed to effectively reduce bias in the 21st century, filling a gap in the literature by offering the first empirical examination of how the race of the individual(s) one is accountable to may influence decision making in the employment context. My experimental results reveal that race does in fact matter. Accountability to a racially diverse committee leads to more hiring and promotion of underrepresented minorities than does accountability to a homogeneous committee.
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I begin the Article by presenting my conceptual framework of debiasing strategies, then I focus specifically on one strategy that legal scholars and social psychologists have argued to be particularly effective: “Accountability” to others. If accountability, or “the implicit or explicit expectation that one may be called on to justify one’s beliefs, feelings, and actions to others,” effectively reduces bias, we can pro-actively include this strategy in important decision making.
These results support a growing literature in the behavioral sciences on “nudging” as a theory of behavioral change. If simply changing the racial composition of a committee can indeed nudge less discriminatory behavior, we can encourage these changes through voluntary organizational policies like having an NFL “Rooney Rule” for hiring committees. Alternatively, Title VII can be reformulated under a negligence theory to encourage the types of institutional changes that yield inclusive hires and promotions.
Breaking Down Bias: Legal Mandates vs. Corporate Interests
92 Wash. L. Rev. 1473 (2017).
DOWNLOAD SSRNThis paper presents experimental findings reveal that inclusion efforts grounded in civil rights law, or the legal case, are the most likely to curb widely held biases and promote equitable behavior. These findings challenge an emerging body of scholarship that suggests legal justifications for integration are no longer effective. Despite the appeal of the business case for diversity, emphasis on corporate interests actually generates negative beliefs about inclusion and more biased decision making. Based on these findings, I argue that antidiscrimination law is still needed, not only for its exogenous pressure on organizations to promote inclusion but also for its normative effect on individual values, beliefs about inequality, and behavior.
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This Article examines the very critical issue of racial inequality in the United States and various strategies that American institutions use to reduce bias and promote equity. I present experimental research findings that for the first time test the relative efficacy of a “business case” for diversity and inclusion versus a “legal case” for inclusion. The diversity rationale, touting the broad benefits of racial inclusion, has become widely accepted. At the same time, many view a focus on antidiscrimination law and the threat of legal enforcement as outmoded and ineffective. Thus, corporate employers, courts, and universities talk less in terms of the mandates of laws such as the 1964 Civil Rights Act, or a legal case and more in terms of a business case where the benefits of diversity, such as enhanced performance, learning, and profit, seem to accrue to everyone. But there is one major problem: there is little to no evidence that the business case for diversity and inclusion actually reduces bias and improve outcomes for racial minorities.