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Responding to Subtle Racial Harassment

Pat Chew recently posted his article, “Seeing Subtle Racism” (Stanford Journal of Civil Rights and Civil Liberties, Vol. 6, p. 183, 2010) on SSRN.  Here’s the abstract.

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Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias – and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination jurisprudence more broadly. This article traces the development of racial harassment jurisprudence, explaining the development of the traditional model, which does not recognize subtle bias. It concludes with an analysis of an alternative jurisprudential model that “sees” subtle racism.

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Download the article for free here.

Related Situationist posts:

• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,” and
• “The Situation of Situation in Employment Discrimination Law – Abstract.”