Title

UNWRAPPING RACIAL HARASSMENT LAW

Comments

This article has been accepted for publication in the Berkeley Journal of Employment and Labor Law at the University of California. In its final form, the article will appear in the journal's vol. 27:1 (2006) issue.

Abstract

This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study’s analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise. Parts II and III present a clear picture of how racial harassment law has played out in the courts—who are the plaintiffs and defendants, the nature of the claims, who wins and loses, and what factors affect those outcomes. We consider dozens of characteristics of the parties, the nature of the harassment, and litigation characteristics (such as the forum, type of proceedings, and legal issues). While it reveals that individuals in all kinds of occupations, in all parts of the country, of all races, and of both genders complain about racial harassment—it also shows that African Americans are disproportionately likely to be plaintiffs. While Whites are the most likely harassers, minority individuals also are defendants. The data also discloses that the most typical legal proceeding is the court’s consideration of the defendants’ motion for summary judgment where the judges end up terminating most plaintiffs’ cases. In fact, the judicial opinions in this study find in the plaintiffs’ favor only 21.5% of the time. (In contrast, an earlier study revealed that judges in sexual harassment cases find in the plaintiffs’ favor 48% of the time – more than twice as often as in racial harassment cases.) As it turns out in racial harassment cases, the race of the plaintiff and of the alleged harasser makes a difference in the parties’ success rates, but the gender of the plaintiff does not. Judges are a bit more likely to find racial harassment when plaintiffs allege blatant racist behavior rather than more subtle and contextual racism. Results vary depending on the location of the case. Part IV provides an integrated analysis of the data, including a look at how racial harassment litigation has evolved over time. It also offers explanations and implications of the study’s results. This article contributes detailed baseline data for litigants, judges, and legislators. Each group can draw upon the totality of racial harassment cases to guide their decisionmaking. The article also offers a sound basis for creating a new racial harassment jurisprudence that should be distinct from both sexual harassment and racial discrimination jurisprudence.

Disciplines

Civil Rights and Discrimination | Labor and Employment Law

Date of this Version

8-5-2005

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