Article

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. 

Concurrent Damages

In areas as diverse as copyright, pollution, consumer protection, and electronic privacy, statutory damages have become a familiar form of civil remedy. Yet judges are discovering that these formulaic awards can swing by orders of magnitude for arbitrary reasons—resulting in windfalls for some but little relief for others—due to the rigidly linear way in which the awards stack up, count by count. The irony is that too much structure, rather than too little, is what generates such capricious outcomes.

This Article proposes a solution: allow courts to run damages concurrently. As with concurrent criminal sentencing, the judge would recognize every act of violation, and yet group the nominal counts so that the effective penalties do not stack up arbitrarily. This simple option enables judges to tailor the structure of damages to match more closely how the harms actually add up (“Should the copyright damages accumulate per song, per album, per artist, or per playlist—in this case?”). Moreover, it can displace the troubling fudges—such as fictional awards—that some courts use when bound by the rigidity of statutory damages. Creating a concurrent damages option may thus make possible not only more accurate and consistent compensation but also clearer, truer signals for future actors and future courts.

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