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Égalité et Discrimination

Evaluating the U.S. Policy of Using Private Lawsuits to Remedy Employment Discrimination

David Benjamin Oppenheimer

Résumé

The primary mechanism for addressing employment discrimination in the United States is complaint-based, through private law suits seeking tort-like damages awards. No other nation relies so heavily on a private bar of employment discrimination lawyers, relying on fee-shifting statutes and contingent fees, to enforce its civil rights policies. This paper relies on US census data and empirical studies of discrimination litigation to argue that the mechanism is ineffective in addressing the problem of racial discrimination in employment.

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Notes de l’auteur

Tous mes remerciements à Anne Deysine pour m’avoir suggéré d’écrire cet article, à Katarzyna Gromek-Broc, Helen Hartnell, Frank Romano, et Bart Selden pour m’avoir encouragé à comparer droit américain et européen, ainsi que pour leurs conseils. Mes remerciements vont également à mes assistants de recherche, Pauline Abadie, Gaël Bizel, Nicholas Cerutti, Esther Hagege, Natalie Kwan, Ariella Perry, and Yofi Weinberg, pour leurs recherches et traductions.

Texte intégral

  • 1 I will use the term “affirmative action” when referring to U.S. policies, and the term “positive ac (...)

1In the second half of the twentieth century, Europe and many of its former colonies, including the United States, Canada, South Africa, and India, have been forced to confront racial and ethnic inequality as a legacy of slavery, colonialism, apartheid, and white supremacism. Nowhere is this legacy more apparent than in employment, where discrimination exacerbates existing inequality and sows the seeds of continuing and future inequality. Most nations have adopted policies intended to address employment discrimination, but have embraced dramatically different mechanisms to remedy the problem. Some have relied on various forms of affirmative action (or positive action)1, which can range from quota hiring to outreach efforts, and be enforced either through state mandates or private initiative. Others have focused on civil, criminal or administrative prosecution, with remedies including reinstatement, back wages, and monetary damages.

  • 2 See Article L. 112-45 of the Labor Code.
  • 3 Article L. 122-45 of the Labor Code. See also, Code penal, art. 416,3 (cited in Donna M. Gitter, “F (...)
  • 4 Positive action in education, based on disadvantage, as opposed to positive action based on race or (...)
  • 5 See Article 119(4) ; Council Directive 2000/43/EC of 29 June 2000, Article 5 (positive action) ; Co (...)
  • 6 See F. Michael Higginbotham, Affirmative Action in the United States and South Africa : Lessons Fro (...)
  • 7 See Marc Galanter, Competing Equalities : Law and the Backward Classes in India (University of Cali (...)
  • 8 John Hucker, “Towards Equal Opportunity in Canada : New Approaches, Mixed Results,” 26 St. Mary’s L (...)
  • 9 Id. at 841, 845.

2In France, the primary mechanism for corrective action has been a combination of Labor court actions2 and criminal prosecution3, accompanied by state support for private civil rights groups to act as advocates for complainants. Affirmative action is not practiced in France4, but has been embraced elsewhere in Europe, and is permitted by the Treaty of Amsterdam5. It is authorized under the Constitution of South Africa6 and required under the Constitution of India7. In Canada, the federal government and some provinces have adopted affirmative action8, while all embrace administrative prosecution with back pay remedies and small damages awards for emotional distress9.

  • 10 See United Steelworkers of America v. Weber, 443 U.S. 193 (1979) (approving private employer’s affi (...)
  • 11 See Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (rejecting public employer’s affirmat (...)
  • 12 In California and Washington, for example, voters have amended the State Constitutions to eliminate (...)

3In the United States, private voluntary affirmative action is authorized10 and widely utilized, while state-sponsored affirmative action is highly restricted11 and controversial12. But the primary mechanism for addressing employment discrimination in the United States is complaint-based, through private law suits seeking tort-like damages awards. Under this system, thousand of complainants compromise their claims in exchange for monetary payments, or are awarded monetary damages, each year. While most awards are modest (by American standards), settlements and jury awards exceeding one million dollars are not uncommon. No other nation relies so heavily on a private bar of employment discrimination lawyers, relying on fee-shifting statutes and contingent fees, to enforce its civil rights policies. U.S. legal scholars are now engaged in a discussion of whether this mechanism has been successful. This paper addresses that question.

  • 13 347 U.S. 483 (1954).
  • 14 42 U.S.C. S. 2000e et sq.

4This conference on comparative equality law celebrates the decision of the United States Supreme Court in Brown v. Board of Education13, which was issued 50 years ago, in May of 1954. Brown was probably the most important decision handed down by the United States Supreme Court in the twentieth century, and certainly deserves our attention. But by focusing on the use of private litigation to enforce the U.S. employment discrimination laws, this paper highlights another civil rights anniversary. This year is the fortieth anniversary of the 1964 Civil Rights Act14, passed by the United States Congress and signed into law by President Lyndon Johnson in July, 1964. This act, which prohibits discrimination on the basis of race, sex, color, religion or national origin in education, government contracts, access to public accommodations, and employment, was probably the most important legislation passed in the United States in the twentieth century. It was in this Act that the decision was made to enforce the prohibition of employment discrimination primarily through private lawsuits.

5I will begin by describing the political events that led to the passage of the Civil Rights Act, and to the compromise that led to the decision to create a private market in employment discrimination litigation. I will then turn to the question of whether the Act has been effective in addressing the problem of racial inequality in employment. Using census data and other social science research, I will conclude that much progress has been made, but that much remains to be done; employment discrimination based on race remains a problem in the United States, forty years after its legal prohibition. I will then look to the results of verdict studies to conclude that private discrimination litigation does not appear to be a particularly effective mechanism. However, comparing private litigation to the other approaches that might have been adopted under U.S. law suggests that they would probably have been even less effective. This is hardly a ringing endorsement of litigation, but to use an Americanism, “the jury is still out” on the relative advantages of private litigation.

The 1964 Civil Rights Act

  • 15 See Taylor Branch, Parting The Waters : America in the King Years 1954-63, (1988) at 524-803 ; Mart (...)

6The period between Brown in 1954 and the 1964 Civil Rights Act ten years later was a period of great social unrest in the United States. As late as 1963, the success of the civil rights movement was very much in doubt, despite the ban on school segregation, and later other forms of public apartheid, handed down by the courts15. Some who sympathized with the Brown decision nonetheless believed that the Court had gone too far to retain its respect and authority, and many white Americans, particularly in the South, violently resisted the Courts’ decisions.

7In March of 1963, President Kennedy was resisting calls from his own party to introduce a civil rights law. He was convinced it could not pass, and would destroy the Democratic party. Martin Luther King, Jr., had become increasingly marginalized. He was viewed by most of the black middle class as too radical, and by many of the new young civil rights advocates as too moderate. Rejecting the call from the NAACP to concentrate on law reform litigation, and the demands from Malcolm X and others to reject non-violence, he was increasingly regarded as irrelevant.

  • 16 Mary L. Dudziak, Cold War Civil Rights : Race and the Image of American Democracy (2000).

8But 41 years ago, on April 2, 1963, Dr. King arrived in Birmingham Alabama and began a campaign of non-violent civil disobedience that attracted the attention of the world. Through his Good Friday arrest and his Easter weekend in the Birmingham jail, and through the children’s marches that followed, in which thousands of young black students non-violently resisted as they were attacked by police dogs and water cannons, President Kennedy realized he could no longer resist the calls for civil rights legislation. Indeed, we in the United States may owe a debt to Europe for our President’s decision. Recent scholarship based on his White House papers suggests that Kennedy was convinced to change his position on the civil rights question in part by pressure from the State Department, which complained that the United States was losing the cold war propaganda fight because of our system of legal segregation and racial oppression16.

9By May of 1963 Kennedy agreed to sponsor a new civil rights law. By August, Dr. King led hundreds of thousands of marchers in support of the proposed bill, on a march on Congress, where he gave his “I Have a Dream” speech. And by the following summer, in the wake of President Kennedy’s assassination, that bill was passed into law.

Choosing an Enforcement Model for the Prohibition of Employment Discrimination

  • 17 Hugh Davis Graham, The Civil Rights era : Origins and Development of National Policy 1960-1972 (Oxf (...)

10One of the critical decisions facing the Congress as the bill was drafted was the question of how it should be enforced. Two primary choices were discussed17. The first, favored by liberals, was what we refer to in the United States as “administrative enforcement”. The proposal was to create an administrative agency, known as the Equal Employment Opportunity Commission, which would have the exclusive authority to accept and investigate complaints. When the investigative staff found that the complaints were valid, they would be heard by hearing officers appointed by the commissioners, who would hear testimony and issue proposed findings, which would be reviewed by the commissioners. The Commission would have the power to order reinstatement and other affirmative relief, and to order back pay. Its decisions would be subject to limited review by the United States Circuit Courts of Appeals, the appellate court that sat directly below the Supreme Court, which would determine only whether the Commission had abused its discretion. This proposal was modeled on the National Labor Relations Board, which enforced the law guaranteeing the right to form unions, and governing union/management relations. Its sponsors believed that had it been adopted, it would have created a very powerful agency.

11The alternate proposal also called for the creation of an Equal Employment Opportunity Commission, but with much weaker powers, and with enforcement through government prosecutions in the civil courts. This proposal also gave the Commission the exclusive authority to accept and investigate complaints. But under this proposal, which had the support of moderates, when the investigative staff found that the complaints were valid they referred them to the United States Justice Department, where lawyers working under the supervision of the United States Attorney General could bring civil prosecutions in the United States District Court, the federal trial courts. The cases would be heard, then, by federal judges, appointed by the President and confirmed by the Senate, instead of hearing officers appointed by the Commission. Its sponsors believed that had it been adopted, it would have created a weaker, and less dangerous, agency.

  • 18 Id. at 145-149.
  • 19 Michael Sovern, Legal Restraints on Racial Discrimination in Employment, the Twentieth Century Fund(...)

12In the end, neither proposal was adopted. Instead, as a result of a compromise necessary to move the bill to the floor of the U.S. Senate18, the Act provided for an even weaker Equal Employment Opportunity Commission, with most enforcement entrusted to private law suits brought in the United States District Court, the federal trial courts. Michael Sovern described the agency as it emerged from the compromise as a “poor enfeebled thing, with power to conciliate but not to compel”19.

13As adopted, the Act created an Equal Employment Opportunity Commission, with exclusive authority to accept and investigate complaints, but with the power in most cases only to attempt to conciliate those cases where the staff concluded that the employer had unlawfully discriminated against the complainant. The Commission did have the authority to refer possible “pattern and practice” cases to the Department of Justice for prosecution in the United States District Court. But in all other cases, if conciliation failed (or the Commission declined to attempt conciliation) the complainant had to hire private counsel and file a private civil lawsuit in the District Court. The District Court was authorized to reinstate a prevailing plaintiff, with back pay and other affirmative relief, and, critically, to award a prevailing plaintiff his or her attorneys fees.

  • 20 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.

14In subsequent revisions in the 1970’s the Act was amended to give the Commission the authority to prosecute cases in the District Courts20. But as discussed herein, that power has been used sparingly. In most cases, if a Title VII enforcement action is brought it will be brought by the plaintiff, not the EEOC, with the assistance of private counsel.

Did Congress Choose the Most Effective Enforcement Model?

15The question I wish to address is whether this is a good model for enforcing employment discrimination claims, and whether consideration of alternative models in United States and European law suggests that there are better models which ought to be considered. I limit my discussion to race discrimination claims, recognizing that an examination of the Act’s success in addressing sex discrimination in employment might well yield a different answer.

  • 21 Discrimination In Europe, available at http://www.europa.eu.int/comm/employment_social/fundemental_ (...)
  • 22 Id.

16In those instances where I am aware of comparable French or European Union data, I will note it. For example, a report issued in 2003 by the European Opinion Research Group (EEIG) discloses that “most Europeans believe that a person’s ethnic origin, religion, disability or age can be an obstacle in finding a job, even where qualifications are equal”21. In France, 28% of those polled had witnessed discrimination on ethnic grounds22.

17One way to measure the effectiveness of private enforcement is to ask whether workplace discrimination in the United States against African Americans and other minority groups has been eliminated, or substantially reduced, in the forty years since the Act’s passage. Examining census data, controlled experiments, social science studies, and litigation studies, suggests that the Act has had a measurable impact, but that far more progress is required before victory can be claimed.

Census Data on Racial Inequality in Employment & Income

  • 23 Similar data about France is not collected by the French Census Bureau, INSEE. For a critique of th (...)
  • 24 I am a co-author of a recent book addressing this debate. See Michael Brown, et. al., Whitewashing (...)

18One source by which we can measure racial inequality is data reported by the United States Census Bureau23. Some commentators have argued that these data establish that racial discrimination has disappeared from American life, and that we have become a “color-blind society.” Others argue that these data establish persistent endemic discrimination in American life24. I believe the data are fairly described as demonstrating that progress has been made, but that much remains to be done. Whether to classify them as demonstrating success or failure is analogous to deciding whether a glass is half empty or half full.

Income Differentials by Race

  • 25 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 1970 (ninety (...)
  • 26 Id.
  • 27 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 1984 (one hu (...)
  • 28 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 2002 (one hu (...)
  • 29 Id.
  • 30 Id.
  • 31 Id.

19One measure of racial inequality is family income. The data show that in each decade, minorities in the U.S. have lagged behind Whites by approximately ten years, with minority family income in any year nearly equaling white family income of ten years earlier. The ratio of minority income to white income has grown, and the relative disparity has narrowed, but quite slowly. In 1950, the ratio between white family income and non-white (the Census term at that time was “Negro and other”) family income was 54%25. The percentage rose slightly, to 55%, in 196026, and then jumped to 61% in 197027, five years after the Civil Rights Act took effect. Beginning in 1980, the Census Bureau separately reported family income for white, black, and hispanic families. In 1980, the ratio of black family income to white family income was 58%28, while the ratio for hispanic to white family income was 67%29. In the 1980’s progress stalled. By 1990, the respective ratios were 58% (black families) and 63% (hispanic families)30. In the 1990’s, the ratio jumped again for blacks, although it rose only slightly for Hispanics. In 2000, the respective ratios were 64% (black families) and 66% (hispanic families)31. By this measure, the rise from a 55% ratio in 1960 to a 65% ratio in 2000 marks measurable progress in family income for minority families since the passage of the Civil Rights Act, but over half that progress occurred in the first five years, with the remainder during the boom years of the 1990’s. Table 1 sets forth these ratios and the dollar amounts in then-current dollars.

  • 32 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 1970 (ninety (...)

Table 1. Money Income of Families – Median Family Income in Current Dollars, and as a percentage of white family income, By Race: 1950-200032

1950

1960

1970

1980

1990

2000

White

$3,445

$5,835

$10,236

$21,904

$36,915

$53,256

Negro and Other

$1,869 (54 %)

$3,233 (55 %)

$6,279 (61 %)

Black

$12,674 (58 %)

$21,423 (58 %)

$34,192 (64 %)

Hispanic

$14,716 (67 %)

$23,431 (63 %)

$35,054 (66 %)

  • 33 U.S. Bureau of the Census, Statistical Abstract of the United States : 1982-83 (one hundred and thi (...)

20Another method of examining changes in income inequality is to look at individual wage earners, rather than families. The Census Bureau’s measure of median weekly earnings of full-time workers, set forth in Table 2, again demonstrates a continuing racial disparity in earnings33.

Table 2. Median Weekly Earnings by Race and Hispanic Origin: 1970 and 2001

Earnings in Dollars

Earnings as a Percentage of White Earnings

1970

2001

1970

2001

White

$134

$612

100 %

100 %

Black

$99

$487

74 %

80 %

Hispanic

N/A

$414

N/A

68 %

Income Differentials by Race and Education

  • 34 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)

21One explanation offered for racial income inequality is the difference in educational achievement (or opportunity) between Whites and racial/ethnic minorities. Certainly, educational achievement by minority group members has risen dramatically in the past fifty years. In 1960, 20 % of black Americans and 43 % of white Americans had at least a high school diploma. By 2000, 85 % of Whites, 79 % of Blacks, and 57 % of Hispanics had at least a high school degree, and 26 % of Whites, 17 % of Blacks, and 11 % of Hispanics had at least a college degree34.

22Though one may argue that educational differences are themselves evidence of continuing societal discrimination, they are outside the purview of the employment discrimination statutes, which are intended to provide equal employment among those of equal qualifications. Another measure of employment inequality, then, is the ratio of minority earnings to white earnings among persons with the same educational achievements. The most recent census data reports for this are from 1999.

23Among male high school graduates, the ratio of mean earnings for black workers to white workers was 83%. For Hispanics high school graduates it was 76%. Among male college graduates, the ratio drops to 71% for Blacks, and 72% for hispanics. Thus, although in absolute terms black and hispanic college graduates earn more than black and hispanic (and white) high school graduates, the racial earnings gap grows with higher educational achievement. By contrast, black and Hispanic women draw closer to white women’s earnings as educational achievement rises – black women with college degrees actually earn slightly more than white women with college degrees – though again women at all education levels earn substantially less than similarly educated men. Thus, a white man with high school diploma earns more on average than a hispanic woman with a bachelor’s degree. These data are presented in Table 3.

  • 35 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)

Table 3. Mean Earnings by Highest Degree Earned: 199935

  • 36 The first ratio is to white women ; the second is to white men.

Not a High School Graduate

High School Graduate Only

Associate’s Degree

Bachelor’s Degree

Master’s Degree

White Male

$19,320

$31,279

$41,010

$59,606

$68,831

Black Male

$16,391(85 %)

$25,849(83 %)

$31,885(78 %)

$42,530(71 %)

$54,642(79 %)

Hispanic Male

$18,020(93 %)

$23,736(76 %)

$36,740(90 %)

$42,733(71 %)

$60,013(79 %)

White Female

$12,405

$18,381

$24,928

$32,507

$41,845

Black Female

$10,734(87/56 %)36

$16,506(90/53%)

$26,787(107/65 %)

$33,184(102/56 %)

$44,761(107/65 %)

Hispanic Female

$12,684(102/66 %)

$16,653(91/53 %)

$22,695(91/55 %)

$29,249(90/49 %)

$41,118(98/60 %)

Occupation and Race

24Another measure of employment inequality is occupational opportunity. When minorities are over-represented in low-paying occupations, and under-represented in high-paying fields, opportunities are limited, and income inequality is persistent. For example, in 2001 black Americans were 5.6 % of all physicians, but 32.7 % of all nursing aides and orderlies. Hispanics were 10.4 % of waiters and waitresses, but 21.5 % of waiter and waitress assistants. A comparison of occupational characteristics between 1983 and 2001 shows some improvement for minorities in some areas, but once again shows substantial continuing disparities. Table 4 sets forth some occupations where minorities are substantially over-represented. Table 5 sets forth some occupations where minorities are under-represented.

  • 37 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)

Table 4. Employed Civilians, Percentage of Labor Force by Occupation, Race, and Hispanic Origin where Minorities are Over-Represented : 1983 and 200137

1983

2001

Black

Hispanic

Black

Hispanic

Overall Civilian Labor Force

9.3 %

5.3 %

11.3 %

10.9 %

Licensed Practical Nurses

17.7

3.1

23.2

3.4

Office Machine Operators

16.0

6.1

27.2

12.6

Postal Clerks

26.2

5.2

35.5

6.2

Cleaners and Servants

42.4

11.8

13.5

39.5

Correctional Institution Officers

24.0

2.8

26.8

9.2

Guards

17.0

5.6

25.6

11.2

Cooks

15.8

6.5

17.4

24.0

Health Aides, Except Nursing

16.5

4.8

25.8

10.8

Nursing Aides and Orderlies

27.3

4.7

32.7

11.6

Maids and Housemen

32.3

10.1

21.9

28.5

Janitors and Cleaners

22.6

8.9

20.8

23.3

Pressing Machine Operators

27.1

14.2

29.0

36.8

Farm Workers

11.6

15.9

3.7

42.3

Table 5. Employed Civilians, Percentage in Occupation, Race, and Hispanic Origin where Minorities are Under-Represented : 1983 and 2001

1983

2001

Black

Hispanic

Black

Hispanic

Overall Civilian Labor Force

9.3 %

5.3 %

11.3 %

10.9 %

Architects

1.6

1.5

3.1

4.4

Engineers

2.7

2.2

5.5

3.5

Physicians

3.2

4.5

5.6

4.6

Dentists

2.4

1.0

4.1

3.5

College and University Teachers

4.4

1.8

6.1

4.1

Lawyers

2.6

0.9

5.1

3.1

Unemployment and Race

  • 38 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)
  • 39 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)

25Yet another measure of employment equality is employment participation. In 2001, when the national unemployment rate was 4.8 %, the black unemployment rate was 6.5 %, the hispanic rate was 5.5 %, while the white rate was 3.1 %.38 Among teenagers, the white rate was 12.7 %, while the black rate was 29.0 % and the hispanic rate was 17.7 %39. These data are set forth in Table 6.

Table 6. Unemployment Rate in United States, by Race and Age, 2001

All Age Unemployment Rate

Teenage (16-19) Unemployment Rate

White

3.1 %

12.7 %

Black

6.5 %

29.0 %

Hispanic

5.5 %

17.7 %

Poverty and Race

  • 40 U.S. Bureau of the Census, Statistical Abstract of the United States :1982-1983 (one hundred and th (...)
  • 41 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)
  • 42 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty (...)

26Another (indirect) indication of employment equality is poverty. In the year 1959, over half of all black Americans were poor40. By 2000, that percentage had dropped to 22.0 %41. Among American children in the year 2000, 12.3 % of the white children were poor, compared with 30.4 % of black children, and 27.3 % of hispanic children42. Table 9 shows the progress in eliminating poverty over the past 40 years, and the degree to which poverty continues to be more prevalent among minorities than whites.

  • 43 U.S. Bureau of the Census, Statistical Abstract of the United States :1982-1983 (one hundred and th (...)

Table 7. Percentage of Persons Below Poverty Level43

1959

1966

1970

1975

1990

2000

White

18.1

12.2

9.9

9.7

10.7

9.4

Black

55.1

41.8

33.5

31.3

31.9

22.0

Hispanic

N/A

N/A

N/A

26.9

28.1

21.2

27In sum, census data support the conclusion that significant reductions in racial inequality have occurred, but that nonetheless there continues to be substantial racial inequality in the American workplace. Black and hispanic Americans continue to earn less than white Americans, even after correcting for education, and are disproportionately unemployed and, when employed, represented in low-income occupations.

Audit Evidence of Present Racial Discrimination in Employment

  • 44 The discussion that follows is drawn substantially from my 1996 article, “Understanding Affirmative (...)
  • 45 This technique for finding or proving discrimination should be familiar to French and other Europea (...)
  • 46 Margery A. Turner et al., Urban Inst. Report 91-9, Opportunities Denied, Opportunities Diminished : (...)
  • 47 Id.
  • 48 Harry Cross et al., Urban Inst. Report 90-4, Employer Hiring Practices : Differential Treatment of (...)

28Over the past two decades a number of controlled experiments have been conducted that reveal substantial discrimination against minorities, particularly African Americans, seeking employment44. Studies carried out by the Urban Institute in San Diego, Chicago and Washington, D.C., paired college-aged men with identical simulated job qualifications and directed them to seek employment, following a carefully scripted plan, from the same firms45. In one of the experiments, white and black job seekers applied for entry level jobs advertised in newspapers in Washington, D.C., and Chicago during the summer of 1990. A total of 476 tests, termed “audits,” were conducted. In Washington, the white auditors were more than three times as likely to receive job offers as were the black auditors46. In Chicago, the white auditors were twice as likely to receive a job offer47. In the Chicago and San Diego tests comparing white and hispanic auditors, the white applicants were more than 50 % more likely to be offered jobs than were the hispanic applicants48.

  • 49 Turner et al., supra note 47 , at 45-48 tbl. 4.7.
  • 50 Id. at 48-49.
  • 51 Id. at 52-53.

29Although the Urban Institute auditors were instructed to push forward with their applications unless or until they were either offered or denied the job, many real-life job-seekers will likely be discouraged from pursuing an employment application because of their treatment in the hiring process. It is thus significant that in those 45 % of the Washington audits where both auditors received interviews, the white auditors were almost twice as likely as the black auditors to be favored in terms of waiting time, length of interview, number of interviewers, positive comments and negative comments49. For example, “a black auditor reported that he had received a very discouraging impression of the job, including the statement that `your supervisor will work your butt off.’ The white partner, on the other hand, was told that the company offered great opportunities for advancement”50. The discriminatory results were not uniform across all job categories. In general, Blacks were more likely to encounter unfavorable treatment in higher paying, higher status jobs and in jobs involving substantial customer contact51.

  • 52 See, Affirmative Action Review : Report to the President at 21 (1995).
  • 53 Id.
  • 54 Id.
  • 55 Id. at 21-22.
  • 56 Id. at 22.
  • 57 Id.
  • 58 Id.

30Another series of audits was conducted between 1990 and 1992 by the Fair Employment Council of Greater Washington, Inc52. “The tests revealed that Blacks were treated significantly worse than equally qualified Whites 24 % of the time and Latinos were treated worse than Whites 22 % of the time”53. For example, when two pairs of testers appeared at a nationally-franchised employment agency, the black testers were given no referrals while the white testers were immediately referred to jobs54. A black woman applied to a major hotel chain and received no call-back, while her white counterpart was offered a desk clerk job55. When two equally qualified women applied for a typist/receptionist job, the black woman received no offer while the white woman was offered a better, higher paying job than the one advertised56. Where black testers were offered jobs, the conditions were often materially different. One pair of auditors applied at a car dealership for sales jobs ; the white applicant was interviewed for the sales position, but the black applicant was told he would have to begin by washing cars57. Another audit, focusing on discrimination against Hispanics, found that hispanic job auditors received 25 % fewer job interviews and 34 % fewer offers than did white testers58.

  • 59 Marc Bendick, Jr., et al., “Measuring Employment Discrimination Through Controlled Experiments”, 23 (...)
  • 60 Id. at 32.
  • 61 Id. at 35.

31A study that combined and re-examined the results of these six controlled experiments determined that when a white job applicant was interviewed, he or she had a 46.9 % likelihood of being offered the job ; for a similarly qualified black applicant, the likelihood of a job offer was 11.3 %59. In other words, the white applicant was over four times more likely to get the job than the equally qualified black applicant. In 16.7 % of the cases where both applicants were offered the job, the white applicant was offered a higher starting salary, while the reverse never occurred60. Where both applicants were offered a job, the average starting salary was $5.45 per hour, but where only the white applicant was offered the job, the starting pay was $7.13 per hour61.

  • 62 Jenny Bussey and John Trasvina, Racial Preferences : The Treatment of White and African American Jo (...)
  • 63 Id. at 1, 8-12.
  • 64 Id. at 12-13.
  • 65 Id. at 13-14.

32Similar, more recent controlled experiments conducted in California yielded similar results. The Discrimination Research Center of Los Angeles and Berkeley conducted undercover tests of employment agencies, studying agencies in San Francisco in 1999, and in both San Francisco and Los Angeles in 200362. Matched pairs with carefully constructed nearly equal qualifications (the black testers were given slightly better job qualifications) were sent out separately to apply for placement by temporary employment agencies. Over one hundred tests were conducted, with some agencies tested multiple times by different pairs of testers. The tests revealed that temporary agencies in San Francisco preferred white applicants over black applicants by a 3-1 ratio in 1999, and by a 4-1 ratio in Los Angeles and 2-1 ratio in San Francisco in 200363. The case stories included in the Center’s report illustrate these dramatic differences. In one case, a white tester was quickly offered a $13/hour position doing relevance testing for an internet search engine, while the black tester, two weeks later, was offered an $11/hour job distributing mail and providing general office support64. In another case, the black tester, despite frequent calls to the agency, was never interviewed, while the white tester was offered a permanent position with a cruise company paying over $35,000/year and a free annual cruise65.

33In sum, these controlled experiments suggest that employment discrimination against black Americans remains pervasive forty years after the passage of Title VII.

Social Science Studies Attempting to Measure Employment Discrimination

  • 66 Laura Beth Neilsen and Robert L. Nelson, “Scaling the Pyramid of Employment Discrimination : A Soci (...)
  • 67 Alfred W. Blumrosen and Ruth G. Blumrosen, The Reality of Intentional Job Discrimination in Metropo (...)

34Two recent studies by social scientists attempt to measure quantitatively the frequency of racial discrimination in employment in the United States today. Laura Beth Neilsen and Robert L. Nelson examined social science survey data and made an estimate, which they described as “conservative”, that some 3,415,160 African Americans perceived that they were the targets of workplace discrimination in 200066. Another study, by Professors Alfred W. Blumrosen and Ruth G. Blumrosen, analyzed EEOC reports from large and medium sized employers and concluded that there were roughly two million workers affected by intentional race or sex discrimination in 1999, including nearly 600,000 black workers67.

Litigation Data on Employment Discrimination Claims

35Given the data described above, which suggest that there are at least hundreds of thousand of potential valid claims of race discrimination in employment each year, if the Congress made a good choice in emphasizing private litigation as the main mechanism for enforcing the Civil Rights Act, we should expect to see substantial numbers of claims being filed and taken to settlement or trial each year. The litigation studies examining this question are all, in one degree or another, incomplete. Nonetheless, the picture that emerges is that there are relatively few discrimination claims filed in court, and very few pursued to settlement or judgment. Further, they demonstrate that plaintiffs taking race discrimination cases to trial are rarely successful. These data may suggest that private litigation has not been a particularly effective method of addressing racial discrimination in employment.

  • 68 Persons intending to file an action in State court frequently first file an administrative complain (...)
  • 69 Laura Beth Neilsen and Robert L. Nelson, Scaling the Pyramid of Employment Discrimination, supra n. (...)

36Neilsen and Nelson report that in 2000 nearly 29,000 individuals, most of whom were minority group members, complained to the EEOC that they had been discriminated against based on their race in violation of Title VII (Although complaints to the EEOC are not a prerequisite to suit in race discrimination cases, it is believed that most individuals file with the EEOC before filing in a State or Federal court68). The data they rely on don’t separate race discrimination claims from other discrimination claims, but by extrapolating from the available data they estimate that a far smaller 7,600 filed a civil action in federal court. Of those actions, they estimate that approximately 3,200 settle, and that fewer than 300 go to trial, resulting in approximately 110 plaintiff verdicts, with a median award of approximately $130,00069. Thus, hundreds of thousands (perhaps millions) of potential complaints lead to just over 100 trial victories, and another 3,200 litigation settlements.

37Neilsen and Nelson don’t attempt to quantify the number of private actions brought in State courts. But outside of a few States with plaintiff-friendly damages provisions, it is unlikely that there are more State court discrimination cases than federal court discrimination cases. Even if there were, say, twice as many State cases as federal cases, there would, using their calculations, be fewer than 1,000 verdicts annually in racial discrimination in employment cases, along with perhaps 10,000 litigation settlements.

  • 70 David Benjamin Oppenheimer, “Verdicts Matter : An Empirical Study of California Employment Discrimi (...)
  • 71 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976).
  • 72 California probably attracts more employment discrimination cases to the State courts than most sta (...)

38I have recently published the results of a study I conducted examining employment discrimination verdicts in State and Federal courts in California, covering the years 1998 and 199970. The study is limited to reported verdicts, which is less than the full universe of cases, and is probably somewhat biased in favor of plaintiff verdicts. Nonetheless, there is good reason to believe that over half of all verdicts are reported, and the results are revealing on the question of race discrimination outcomes. I found there were 272 reported employment discrimination verdicts during the two year period, of which plaintiffs won 136 (50 %), with a median verdict of $200,000. Of the 272, 51 were race discrimination cases, including 47 where the plaintiff was non-white, and 4 where the plaintiff was white (such cases are sometimes described as “reverse discrimination” cases, and are permitted under U.S. law)71. In the cases brought by white plaintiffs, the plaintiffs won all 4 cases. Of the 47 cases brought by non-white plaintiffs, the plaintiffs won 17 (36 %), with a median verdict of $105,000. Of the 51 cases, 11 were tried in federal court, 40 in State court72.

  • 73 See Michael Selmi, “Why Are Employment Discrimination Cases So Hard to Win ?”, 61 La. L. Rev. 555 ( (...)

39Other studies confirm that there are thousands, but not tens of thousands, of employment discrimination cases tried annually in United States courts, and that plaintiffs generally do not fare well at trial73.

40Can we conclude from this that the selection of private litigation as the enforcement mechanism has been a failure ? In my view, we cannot reach that conclusion until we address two more questions. First, are there preferable alternatives ? Second, are there benefits from the private litigation of employment discrimination claims that have not been quantified ?

EEOC Enforcement as an Alternative to Private Litigation

41Recall that at the time Title VII was enacted, there were two alternate enforcement mechanisms considered. One was a moderately strong EEOC, with the power to bring cases in the U.S. District Courts. The other was a strong EEOC, with enforcement powers similar to the National Labor Relations Board (NLRB), which regulates union/management relations.

  • 74 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.
  • 75 See, e.g., Michael Selmi, “The Value of The EEOC : Reexamining The Agency’s Role in Employment Disc (...)

42In 1972, a few years after Title VII was enacted, it was amended to provide the EEOC with the power to prosecute cases in the District Courts74. Claimants were permitted to elect either private litigation or EEOC enforcement. As numerous commentators have noted in the years that followed, the agency’s enforcement activities have been disappointing75.

  • 76 The U.S. Equal Employment Opportunity Commission, Race-Based Charges FY 1992-2002, available at htt (...)

43For example, in 2002 the EEOC received 29,910 race discrimination complaints, and resolved 33,19976. Of the resolutions, 3,059 were by settlement (9.2 %), and another 1,200 (3.6 %) were withdrawn by the complainant with some kind of employment benefit. Some 580 (1.7 %) were successfully conciliated. In total, the agency calculated that 6,303 (19 %) were resolved with an outcome favorable to the claimant. Those claimants received an average of $12,851. In the 23,897 cases where the agency made a factual finding, 91 % of the time it was a finding of “no cause”.

44The agency rarely uses its power to prosecute. In 2002, it filed only 244 Title VII actions in District Courts. These included race, sex and religious discrimination charges77. It resolved, by trial or post civil complaint settlement, 247 Title VII cases, with an average monetary benefit of $117,409.

  • 78 Michael Selmi, “The Value of the EEOC”, supra n. 76.
  • 79 Id. at 64.

45Michael Selmi argues that the EEOC should either be eliminated or substantially reformed78. In its current mode, it concentrates on small cases which are significant only to the parties, while serving as a bureaucratic barrier to many meritorious cases. He concludes : “Whatever the EEOC’s original mission, and whatever the original hope, today the agency is clearly a failure, serving in some instances as little more than an administrative obstacle to resolution of claims on the merits. The EEOC resolves too few claims favorably for employees ; it handles cases that would otherwise be pursued by private attorneys, and its cumbersome procedures result in a large number of potentially meritorious cases being dismissed for failure to comply with those procedures. The failures of the EEOC are particularly glaring in that they involve an issue of great national importance - the elimination and remediation of unlawful discrimination”79.

46If the political moderates’ favored option in 1964 – an EEOC with the power to prosecute cases in District Court – has now been revealed as ineffective, the liberal choice would likely have been even less successful. Liberals in 1964 wanted an EEOC modeled on the NLRB, which has the exclusive right to enforce the laws promoting union organizing and regulating union/management relations. In 1964 the NLRB was feared by business interests as a powerful foe of management. But as power shifted from Democrats to Republicans, the power of the agency shifted as well. It is now widely viewed as ineffective at helping workers organize, and as a highly politicized agency.

  • 80 U.S. Bureau of the Census, Statistical Abstract of the United States :1982-1983 (one hundred and th (...)

47Under the watchful eye of the NLRB, union membership in the United States has dropped from 18,117,000 in 1960 to 16,258,2000 in 2000, while the civilian work force has more than doubled, from 69,628,000, to 140,863,00080.

  • 81 Jonathan S. Leonard, “The Impact of Affirmative Action Regulation and Equal Employment Law on Black (...)
  • 82 Id. at 50, 51 ; Jonathan S. Leonard, “Antidiscrimination or Reverse Discrimination : The Impact of (...)
  • 83 See Neil Devins, Reagan Redux, “Civil Rights Under Bush”, 68 Notre Dame L. Rev. 955, 958 (1993) ; K (...)
  • 84 Michael Brown, et. al., Whitewashing Race, supra n. 25, at 167.

48Another illustration of the risk of ineffective enforcement of civil rights inherent in a powerful EEOC is the politicization of affirmative action policy in the 1980s. In 1965, President Johnson issued an Executive Order requiring all federal contractors to adopt affirmative action programs to increase their use of minority employees and minority owned sub-contractors81. In the late 1970s President Carter pushed for vigorous enforcement of the Executive Order. Jonathan Leonard found that during this period employment of black men grew faster than employment of white men in firms that had contracts with the federal government ; he attributes this to Carter’s actions82. By 1980 black male employment among federal contractors had grown by 17 %, compared to a 12 % increase in white male employment. But Ronald Reagan ran for President on a platform hostile to civil rights enforcement83. Once he took office, employment growth among federal contractors for blacks was no greater than for Whites, and the already significant gap between white and Black wages widened by 2.5 %84.

49In sum, while the choice of private litigation as the major mechanism for enforcing the Civil Rights Act’s prohibition of race discrimination in employment has not achieved the goal of racial equality, the two choices rejected in 1964 would probably have been even less successful.

Are Other Alternatives to Litigation Better Suited for Civil Rights Enforcement ?

  • 85 See Jack Steiber, “Protection Against Unfair Dismissal : A Comparative View,” 3 Comp. Lab. L. 229 ( (...)

50If neither litigation nor administrative prosecution by a strong (or moderately strong) EEOC appears to be a successful mechanism for enforcing the employment rights of racial minorities, are there other mechanisms that deserve further consideration ? Several alternatives deserve further consideration, and I hope to address them in further research. Briefly, they are private arbitration of discrimination claims, mandatory mediation of all discrimination claims, or abrogation of “at will” employment by a publicly mandated “cause” requirement for termination, as already exists in the EU85.

  • 86 See Laura Beth Neilsen & Aaron Beim, Media Misrepresentation : Title VII, Print Media, and Public P (...)

51But in the absence of persuasive evidence of a preferable process, we should be reluctant to abandon our admittedly imperfect system. Private enforcement of Title VII has helped contribute to significant (if insufficient) improvement in income, wealth, and employment opportunities for African Americans and other members of racial minority groups. It has helped create a cadre of thousands of lawyers who devote their professional lives to civil rights enforcement, bringing ten of thousands of complaints each year, and bringing hundreds (perhaps thousands) of race discrimination cases to trial in State and federal courts. Media coverage of civil rights filings and verdicts is extensive, and is believed to weigh heavily on public opinion86 ; Large verdicts or settlements in well publicized cases are believed to have affected employer behavior, providing an incentive for voluntary compliance.

  • 87 Sir Winston Churchill, 1947. See The Oxford Dictionary of Quotations 202 (Anglea Partington ed., 4t (...)

52In short, private litigation as an enforcement tool may be like Sir Winston Churchill’s famous description of democracy as “the worst form of government except all those other forms that have been tried”87.

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Notes

1 I will use the term “affirmative action” when referring to U.S. policies, and the term “positive action” when referring to European policies.

2 See Article L. 112-45 of the Labor Code.

3 Article L. 122-45 of the Labor Code. See also, Code penal, art. 416,3 (cited in Donna M. Gitter, “French Criminalization of Racial Employment Discrimination Compared to the Imposition of Civil Penalties in the United States,” 15 Comp. Lab. L. 488, 489 n.5 (1994)). For the related issue of sexual harassment, see the New Penal code, art. 222-33, 1991 (cited in Abigail C. Saguy, “Employment Discrimination or Sexual Violence ? Defining Sexual Harassment in American and French Law,” 34 Law and Society Review 1091, 1092 (2000)).

4 Positive action in education, based on disadvantage, as opposed to positive action based on race or ethnicity, is permitted under French law. See, discussed in Burton Bollag, “A French Court Supports an Elite University’s Affirmative-Action Program,” The Chronicle of Higher Education, Nov. 21, 2003.

5 See Article 119(4) ; Council Directive 2000/43/EC of 29 June 2000, Article 5 (positive action) ; Council Directive 2000/78/EC of 27 November 2000, Article 7 (positive action).

6 See F. Michael Higginbotham, Affirmative Action in the United States and South Africa : Lessons From the Other Side, 13 Temple Int’l & Comp. L.J. 187 (1999).

7 See Marc Galanter, Competing Equalities : Law and the Backward Classes in India (University of California Press 1984).

8 John Hucker, “Towards Equal Opportunity in Canada : New Approaches, Mixed Results,” 26 St. Mary’s L.J. 841, 845, 849, 852 (1995).

9 Id. at 841, 845.

10 See United Steelworkers of America v. Weber, 443 U.S. 193 (1979) (approving private employer’s affirmative action plan).

11 See Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) (rejecting public employer’s affirmative action plan).

12 In California and Washington, for example, voters have amended the State Constitutions to eliminate all state-sponsored affirmative action.

13 347 U.S. 483 (1954).

14 42 U.S.C. S. 2000e et sq.

15 See Taylor Branch, Parting The Waters : America in the King Years 1954-63, (1988) at 524-803 ; Martin Luther King, Jr., Why We Can’t wait (1964). I discuss this period, and the events in Birmingham, at greater length in David Benjamin Oppenheimer, “Martin Luther King, Walker v. City of Birmingham, and the Letter From Birmingham Jail”, 26 U.C. Davis L. Rev. 791 (1993) and David Benjamin Oppenheimer, “Kennedy, King, Shuttlesworth and Walker : The Events Leading to the Introduction of the Civil Rights Act of 1964”, 29 U.S.F. LawReview 645 (1995).

16 Mary L. Dudziak, Cold War Civil Rights : Race and the Image of American Democracy (2000).

17 Hugh Davis Graham, The Civil Rights era : Origins and Development of National Policy 1960-1972 (Oxford University Press 1990) at 126-130 ; Richard K. Berg, “Equal Employment Opportunity Under The Civil Rights Act of 1964”, 31 Brooklyn L. Rev. 62, 64 (1964).

18 Id. at 145-149.

19 Michael Sovern, Legal Restraints on Racial Discrimination in Employment, the Twentieth Century Fund, New York, 205 (1966).

20 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.

21 Discrimination In Europe, available at http://www.europa.eu.int/comm/employment_social/fundemental_rights/pdf/studies/euro_high_en.pdf

22 Id.

23 Similar data about France is not collected by the French Census Bureau, INSEE. For a critique of this practice, see P. Simon, Les Discriminations ethniques dans la société française, Etudes et Recherches de l’IHESI, novembre 2000.

24 I am a co-author of a recent book addressing this debate. See Michael Brown, et. al., Whitewashing Race : TheMyth of a Color-Blind Society (University of California Press 2003).

25 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 1970 (ninety-first edition). Table 486, page 322.

26 Id.

27 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 1984 (one hundred and fourth edition). Table 762, page 463.

28 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 2002 (one hundred and twenty second edition). Table 658, page 436.

29 Id.

30 Id.

31 Id.

32 Calculated from U.S. Bureau of the Census, Statistical Abstract of the United States : 1970 (ninety-first edition). Table 486, page 322 ; 1984 (one hundred and fourth edition). Table 762, page 463 ; and 2002 (one hundred and twenty second edition). Table 658, page 436.

33 U.S. Bureau of the Census, Statistical Abstract of the United States : 1982-83 (one hundred and third edition) Table 671, page 404 ; U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 613, page 403.

34 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 208, page 139.

35 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 211, page 140.

36 The first ratio is to white women ; the second is to white men.

37 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 588, pages 381-383.

38 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 598, page 390.

39 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 593, page 387.

40 U.S. Bureau of the Census, Statistical Abstract of the United States :1982-1983 (one hundred and third edition). Table 727, page 440.

41 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 668, page 441.

42 U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 669, page 441.

43 U.S. Bureau of the Census, Statistical Abstract of the United States :1982-1983 (one hundred and third edition). Table 727, page 440 and U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Table 668, page 441.

44 The discussion that follows is drawn substantially from my 1996 article, “Understanding AffirmativeAction”, 23 :4 Hastings Constitutional Law Quarterly 921 (1996).

45 This technique for finding or proving discrimination should be familiar to French and other European scholars. It was approved by the Cour de cassation in a recent French case concerning admission to a night club of persons of North African origin. See L’Association SOS Racisme, Crim., 11 juin 2002, Bull. Crim., No. 131, p. 482.

46 Margery A. Turner et al., Urban Inst. Report 91-9, Opportunities Denied, Opportunities Diminished : RacialDiscrimination in Hiring (1991) at 41 tbl. 4.4.

47 Id.

48 Harry Cross et al., Urban Inst. Report 90-4, Employer Hiring Practices : Differential Treatment of Hispanic and Anglo Job Seekers (1990).

49 Turner et al., supra note 47 , at 45-48 tbl. 4.7.

50 Id. at 48-49.

51 Id. at 52-53.

52 See, Affirmative Action Review : Report to the President at 21 (1995).

53 Id.

54 Id.

55 Id. at 21-22.

56 Id. at 22.

57 Id.

58 Id.

59 Marc Bendick, Jr., et al., “Measuring Employment Discrimination Through Controlled Experiments”, 23 rev. ofBlackPol. Econ.25, 31 (1994).

60 Id. at 32.

61 Id. at 35.

62 Jenny Bussey and John Trasvina, Racial Preferences : The Treatment of White and African American Job Applicants by Temporary Employment Agencies in California, Discrimination Research Center 2003.

63 Id. at 1, 8-12.

64 Id. at 12-13.

65 Id. at 13-14.

66 Laura Beth Neilsen and Robert L. Nelson, “Scaling the Pyramid of Employment Discrimination : A Sociological Model of Employment Discrimination”, in Laura Beth Neilsen and Robert L. Nelson, eds., Rights and Realities,Legal and Social Scientific Approaches to Anti-Discrimination Law, (forthcoming, Kluwer Academic, 2004).

67 Alfred W. Blumrosen and Ruth G. Blumrosen, The Reality of Intentional Job Discrimination in Metropolitan America,1999, www.eeo1.com (2002).

68 Persons intending to file an action in State court frequently first file an administrative complaint with a State agency that cooperates with the federal EEOC. In most cases, these filings are deemed co-filed with the EEOC, and included in the data they report.

69 Laura Beth Neilsen and Robert L. Nelson, Scaling the Pyramid of Employment Discrimination, supra n. 67 at 42. See also, Bureau of Justice Statistics, Civil Rights Complaints in U.S. District Courts, 2000 (July 2002).

70 David Benjamin Oppenheimer, “Verdicts Matter : An Empirical Study of California Employment Discrimination and Wrongful Discharge Jury Verdicts Reveals Low Success Rates for Women and Minorities”, 37 L. U.C. DavisRev. 511 (2003).

71 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976).

72 California probably attracts more employment discrimination cases to the State courts than most states, because it has long permitted unlimited legal damages. See, Commodore Home Systems v. Superior Court, 32 Cal. 3d 211 (1982).

73 See Michael Selmi, “Why Are Employment Discrimination Cases So Hard to Win ?”, 61 La. L. Rev. 555 (2001) ; Civil Rights Complaints in U.S. District Courts, 1990-1998, Bureau of Justice Statistics (2000) ; Theodore Eisenberg, “Litigation Models and Trial Outcomes in Civil Rights and Prisoner Cases”, 77 Geo. L.J. 1567 (1989) ; John J. Donohue & Peter Siegelman, “The Changing Nature of Employment Discrimination Litigation”, 43 Stan. L.Rev. 983 (1991).

74 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103.

75 See, e.g., Michael Selmi, “The Value of The EEOC : Reexamining The Agency’s Role in Employment Discrimination Law”, 57 Ohio St.L.J. 1 (1996).

76 The U.S. Equal Employment Opportunity Commission, Race-Based Charges FY 1992-2002, available at http://www.eeoc.gov/stats/race.html (last visited 2/15/04).

77 Id. at http://www.eeoc.gov/stats/litigation.html (Last visited 2/15/04). Race charges are not listed separately.

78 Michael Selmi, “The Value of the EEOC”, supra n. 76.

79 Id. at 64.

80 U.S. Bureau of the Census, Statistical Abstract of the United States :1982-1983 (one hundred and third edition). Table 680, page 408 and U.S. Bureau of the Census, Statistical Abstract of the United States :2002 (one hundred and twenty second edition). Tables 628 and 560, pages 411 and 367.

81 Jonathan S. Leonard, “The Impact of Affirmative Action Regulation and Equal Employment Law on Black Employment”, 4 The Journal of Economic Perspectives 61 (1990).

82 Id. at 50, 51 ; Jonathan S. Leonard, “Antidiscrimination or Reverse Discrimination : The Impact of Changing Demographics, Title VII, and Affirmative Action on Productivity,” 2 Journal of Human Resources 145, 151 (1984).

83 See Neil Devins, Reagan Redux, “Civil Rights Under Bush”, 68 Notre Dame L. Rev. 955, 958 (1993) ; Kimberle Williams Crenshaw, “Race, Reform, and Retrenchment : Transformation and Legitimation in Anti-Discrimination Law”, 101 Harv. L. rev. 1331, 1337 (1988).

84 Michael Brown, et. al., Whitewashing Race, supra n. 25, at 167.

85 See Jack Steiber, “Protection Against Unfair Dismissal : A Comparative View,” 3 Comp. Lab. L. 229 (1990) ; Janice R. Bellace, “A Right of Fair Dismissal Enforcing Statutory Guarantee,” 16 U. Mich. J. L. Ref. 207 (1983).

86 See Laura Beth Neilsen & Aaron Beim, Media Misrepresentation : Title VII, Print Media, and Public Perceptions of Discrimination Litigation, Stan. L. Rev. (forthcoming 2004).

87 Sir Winston Churchill, 1947. See The Oxford Dictionary of Quotations 202 (Anglea Partington ed., 4th ed. 1992).

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David Benjamin Oppenheimer, « Evaluating the U.S. Policy of Using Private Lawsuits to Remedy Employment Discrimination », Droit et cultures [En ligne], 49 | 2005-1, mis en ligne le 09 mars 2010, consulté le 13 décembre 2017. URL : http://journals.openedition.org/droitcultures/1603

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Auteur

David Benjamin Oppenheimer

David Benjamin Oppenheimer is Professor of Law and Associate Dean for Academic Affairs at Golden Gate University School of Law, and an affiliated scholar at the Institute for the Study of Social Change at the University of California, Berkeley. He holds a B.A. from the University Without Walls of Berkeley and a J.D. degree from Harvard University. His principal fields of study are employment discrimination law, including affirmative action law, and civil rights law and history. He is the co-author, with 6 scholars from the University of California and Stanford University, of Whitewashing Race: The Myth of a Color-Blind Society (University of California Press 2003). He has authored law review articles for journals published by the University of Pennsylvania, Cornell University, Columbia University, the University of California (Berkeley, Davis and Hastings), and many other American universities.

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