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Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information Age

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals with criminal records have never been convicted of a crime, as one-third of felony arrests never result in conviction. And criminal records databases routinely contain significant errors, including false positive identifications and sealed or expunged information.

The negative impact of employers’ reliance on criminal records databases falls most heavily on Black and Latino populations, as studies show that the stigma of having a criminal record is significantly more damaging for racial minorities than for Whites. This criminal record “penalty” limits profoundly the chance of achieving gainful employment, creating new and vexing problems for regulators, employers, and minorities with criminal records. Our existing regulatory apparatus, which is grounded in Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act, is ill-equipped to resolve this emerging dilemma because it fails to address systematic information failures and the problem of stigma.

This Article, therefore, proposes a new framework drawn from core aspects of anti-discrimination laws that govern health law, notably the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act. These laws were designed to regulate the flow of information that may form the basis of an adverse employment decision, seeking to prevent discrimination preemptively. More fundamentally, they conceptualize discrimination through the lens of social stigma, which is critical to understanding and prophylactically curbing the particular discrimination that results from dual criminal record and minority status. This health law framework attends to the interests of minorities with criminal records, allows for more robust enforcement of existing laws, and enables employers to make appropriate and equitable hiring decisions, without engaging in invidious discrimination or contributing to the establishment of a new, and potentially enduring, underclass.

Marrying Liberty and Equality: The New Jurisprudence of Gay Rights

Equal protection and due process are often intertwined. They work in tandem to illuminate aspects of constitutional questions that can be seen less clearly through the lens of a single clause. Nowhere is this more true than in the context of same-sex marriage, which by its nature implicates both equality and liberty values. This Article examines how courts’ interwoven Fourteenth Amendment analysis affects the meaning of the recent marriage cases and shapes the emerging constitutional jurisprudence of gay rights.

By choosing to focus on the equality component, courts have emphasized the continuity between laws excluding same-sex couples from marriage and other forms of anti-gay regulation. They have analyzed marriage laws not as sui generis, but rather, as part of an increasingly discredited legal regime that accords gays and lesbians secondary status. This regime was founded on a set of descriptive and prescriptive stereotypes: Homosexuals were viewed as enemies of the family, sexually predatory, and dangerous to children, and anti-gay regulations sought to channel men and women into traditional sexual and gender roles. Courts in recent marriage cases have held that laws that reflect and reinforce such stereotypes are no longer consistent with equal protection. But this anti-stereotyping approach also has implications for how courts understand the liberty component of the marriage question. Historically, anti-gay regulations sought to dissuade people from engaging in homosexual behavior and to steer them into heterosexual relationships and conventionally gendered family structures. Part of what courts are protecting when they protect the right to marry a partner of the same sex is the right to be free from such regulation.  

Now that same-sex marriage is inevitable, some former opponents have begun to argue that the marriage cases are all about marriage—that these decisions affirm “traditional family values” and validate efforts by the state to steer all Americans into marriage and punish those who remain outside it. This interpretive frame overlooks the intertwined nature of liberty and equality in the recent marriage cases and obscures the implications of these cases for the rights of gays and lesbians more generally—whether or not they’re the marrying kind. 

Glass Versus Steagall: The Fight over Federalism and American Banking

In 1933, Congress passed the Glass-Steagall Act as a response to the Great Crash of 1929. Two basic responses to the banking crisis were on the table in the weeks prior to the Act’s passage: unification of the national banking system under federal control or preservation of the state unit banking system augmented by a full federal guarantee of deposits made in every American bank. The conflict between these two alternatives represented the final episode in the nearly 150-year-long struggle between state and federal authorities for control over the banking system.

The competition dated back to 1791 and posed the question of how the values and structure of American republican federalism should be engrafted onto the banking system. This Note begins by arguing that the answer, in 1791, was competitive dual federalism. It frames this federal-versus-state competition and then presents the two broad ideologies that drove the struggle, typified by Senator Carter Glass and Representative Henry Steagall. Next, this Note presents the so-called Vandenberg Amendment—adopted as part of the Glass-Steagall Act—as representative of a long-overlooked model of cooperative federalism for banking.

This Note concludes by suggesting that, contrary to the traditional scholarly account, the Glass-Steagall Act as shaped by the Vandenberg Amendment represented a fundamental change to the existing American banking structure, reversing the choice made in 1791 by rejecting a competitive dual federalism model in favor of a cooperative federalism one.

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