Litigating Unconscious Discrimination – Abstract

Franita Tolson has recently posted a fascinating paper, “The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary.” We’ve posted the abstract below.

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The notion that a corporation has a duty under Delaware law to create an environment amenable to diversity is an intriguing idea. Such an environment could address overt discrimination, but more importantly, discrimination that is unconscious or subtle, which is more prevalent. Unconscious discrimination is actionable under Title VII of the Civil Rights Act of 1964 (presumably), but scholars are in agreement that court regulation of it has failed. Contrary to the alternatives suggested in the literature, placing the burden on the firm to regulate discrimination ex ante is more likely to minimize unconscious, discriminatory behavior, at least moreso than tinkering with the ex post remedies available for those few violations that can be proven through Title VII. This article first explains why courts have failed to address unconscious discrimination, a failure that has emerged largely out of respect for employment at will and an unwillingness to infer differential treatment where other explanations are possible. Courts can address only the most extreme cases of unconscious discrimination, which require the presence of certain factors that will allow the court to isolate the unconscious bias. Second, this article proposes other mechanisms for addressing unconscious discrimination that account for its peculiar nature, mainly firm-based remedies that will be more successful than the courts have been in addressing this problem. The difficulty comes in incentivizing the Delaware courts to become involved in the controversy over unconscious discrimination, or in the alternative, convincing firms to address unconscious discrimination without the impetus of litigation. This article shows that such incentive can come from an unlikely blend of the duties of care and loyalty, corporate norms, and economic pressure from corporate giants like Wal-Mart.

The Changing Situation of Survivalism

Alex Williams of the New York Times has a fascinating piece on the increasing number of Americans who have embraced survivalist-related activities. What had  previously been viewed as paranoid endeavors are now becoming more mainstream. We excerpt portions of his article below.

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Faced with a confluence of diverse threats — a tanking economy, a housing crisis, looming environmental disasters, and a sharp spike in oil prices — people who do not consider themselves extremists are starting to discuss doomsday measures once associated with the social fringes.

They stockpile or grow food in case of a supply breakdown, or buy precious metals in case of economic collapse. Some try to take their houses off the electricity grid, or plan safe houses far away. The point is not to drop out of society, but to be prepared in case the future turns out like something out of “An Inconvenient Truth,” if not “Mad Max.”

“I’m not a gun-nut, camo-wearing skinhead. I don’t even hunt or fish,” said Bill Marcom, 53, a construction executive in Dallas.

Still, motivated by a belief that the credit crunch and a bursting housing bubble might spark widespread economic chaos — “the Greater Depression,” as he put it — Mr. Marcom began to take measures to prepare for the unknown over the last few years: buying old silver coins to use as currency; buying G.P.S. units, a satellite telephone and a hydroponic kit; and building a simple cabin in a remote West Texas desert.

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Interest in survivalism — in either its traditional hard-core version or a middle-class “lite” variation — functions as a leading economic indicator of social anxiety, preparedness experts said: It spikes at times of peril real (the post-Sept. 11 period) or imagined (the chaos that was supposed to follow the so-called Y2K computer bug in 2000).

At times, a degree of paranoia is officially sanctioned. In the 1950s, civil defense authorities encouraged people to build personal bomb shelters because of the nuclear threat. In 2003, the Department of Homeland Security encouraged Americans to stock up on plastic sheeting and duct tape to seal windows in case of biological or chemical attacks.

Now, however, the government, while still conducting business under a yellow terrorism alert, is no longer taking a lead role in encouraging preparedness. For some, this leaves a vacuum of reassurance, and plenty to worry about.

Esteemed economists debate whether the credit crisis could result in a complete meltdown of the financial system. A former vice president of the United States informs us that global warming could result in mass flooding, disease and starvation, perhaps even a new Ice Age.

“You just can’t help wonder if there’s a train wreck coming,” said David Anderson, 50, a database administrator in Colorado Springs who said he was moved by economic uncertainties and high energy prices, among other factors, to stockpile months’ worth of canned goods in his basement for his wife, his two young children and himself.

Popular culture also provides reinforcement, in books like “The Road,” Cormac McCarthy’s novel about a father and son journeying through a post-apocalyptic wasteland, and films like “I Am Legend,” which stars Will Smith as a survivor of a man-made virus wandering the barren streets of New York.

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Preparedness activity is difficult to track statistically, since people who take measures are usually highly circumspect by nature, said Jim Rawles, the editor of www.survivalblog.com, a preparedness Web site. Nevertheless, interest in the survivalist movement “is experiencing its largest growth since the late 1970s,” Mr. Rawles said in an e-mail, adding that traffic at his blog has more than doubled in the past 11 months, with more than 67,000 unique visitors per week. And its base is growing.

“Our core readership is still solidly conservative,” he said. “But in recent months I’ve noticed an increasing number of stridently green and left-of-center readers.”

One left-of-center environmentalist who is taking action is Alex Steffen, the executive editor of www.wWorldchanging.com, a Web site devoted to sustainability. With only slight irony, Mr. Steffen, 40, said he and his girlfriend could serve as “poster children for the well-adjusted, urban liberal survivalist,” given that they keep a six-week cache of food and supplies in his basement in Seattle (although they polished off their bottle of doomsday whiskey at a party).

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For the rest of the article, click here.