Over a half century after transformative civil rights laws such as Title VII of the Civil Rights Act of 1964 made discrimination illegal, our nation is still grappling with its history of racial injustice and ongoing systemic discrimination. Although America’s anti-discrimination laws have led to substantial progress in tackling egregious discrimination, many structural forms of discrimination remain entrenched in our employment systems. The promise of these laws has not been fully realized because the nation’s enforcement system does not effectively confront the fundamental power imbalance underpinning the employment relationship. Many of the legal doctrines and organizational practices that predominate today fall short of creating meaningful accountability for discrimination. Because workers encounter a vast information asymmetry, along with economic vulnerability, the predominant complaint-driven system of enforcement often creates insurmountable hurdles to challenging systems that perpetuate discrimination. Our legal system has also empowered employers to write contractual rules that strip away employee rights and undermine accountability for discrimination. In addition, federal anti-discrimination laws create gaps in coverage for many of our most vulnerable workers, leaving them without fundamental civil rights protections.

The COVID-19 crisis has exacerbated the harm of long-standing occupational segregation and deep economic inequality. Black, Latinx, Native American, and Asian American workers are facing disproportionately higher rates of unemployment than white workers. Moreover, Black and Latinx workers are overrepresented in hazardous and low-paying jobs deemed essential. Workers are increasingly fearful of filing complaints in an unstable job market. Even more troubling, research indicates that Black workers are twice as likely as white workers to report that they or someone at work may have been punished or fired for raising safety concerns about COVID-19.

The momentum building for racial justice in response to police killings of Black Americans has put a sharp focus on inequality and structural racism. Thus, we are in a critical moment to re-examine employment discrimination, our current enforcement system, and the power imbalances in the employment relationship that undermine workers’ civil rights. There is an urgent need to restructure our enforcement system to shift the power imbalance and ensure meaningful accountability.

Employment Discrimination and Our Current Enforcement System: Too Much Burden on Workers

Structural racism, gender stereotypes, and other biases are embedded in many employment practices that lead to discrimination and hostile work environments. Decades of research show that job applicants with “non-white-sounding” names are substantially less likely to obtain an interview when compared with those with “white-sounding” names with the same qualifications. In the corporate sector, women remain underrepresented at every level, and women of color and women with disabilities report facing more barriers to advancement and receiving less support from managers than other women.

Our anti-discrimination laws have been weakened by an enforcement system that does not create meaningful accountability or incentivize employers to identify structural barriers to prevent discrimination. At the root of the problem is a system that places far too much of the burden, responsibility, and risk of addressing discrimination on workers without confronting the inherent power and information asymmetries between workers and employers.

Read the full article about employment discrimination by Jane Liu at Democracy Journal.