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From the Pennsylvania Human Relations Commission to the Courthouse: Does Civil Rights Litigation Remediate Racial Inequality in the Workplace?

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From the Pennsylvania Human Relations Commission to the Courthouse: Does Civil Rights Litigation Remediate Racial Inequality in the Workplace? From the Pennsylvania Human Relations Commission to the Courthouse: Does Civil Rights Litigation Remediate Racial Inequality in the Workplace? By David Berney ABSTRACT This dissertation examines the ability of civil rights litigation to redress racial inequality in the workplace. It enters the larger historical debate regarding the effectiveness of civil rights litigation to serve as a force for progressive, socio- political change. To focus my inquiry, I studied the operations of the Pennsylvania Human Relations Commission, an administrative agency charged with enforcing civil rights laws. I also interviewed major participants in the civil rights litigation system, including complainants, attorneys, and judges. I drew upon my own experiences as a practicing civil rights attorney. My investigation employed a range of different methods, including interviews, ethnographic observation, and archival research. This is, to my knowledge, the first full study of the actual operations of an important state civil rights agency in close to fifty years. My dissertation finds that litigation has historically promoted racial equality in employment. But two factors have contributed to limit what lawsuits can realistically accomplish today. First, starting in the 1970s, Republican presidential administrations appointed judges who proved less sympathetic to civil rights claims. The resulting case law made it much harder to bring successful lawsuits. Second, expressions of workplace bias became much more covert over time partly as a consequence of the successes that civil rights litigators achieved. The litigation paradigm is not well designed to tackle such subtleties. Beyond a lack of effectiveness, litigation can also have deleterious effects as it can cause employees to suffer psychic injury on top of whatever racial indignities they have endured. Nonetheless, civil rights litigation still serves important functions. Litigants report that it provides critical space to actualize their civic identities as political agents. It reaffirms their racial identities by connecting them to important social movements of the past. It also remains a deterrent against ongoing forms of blatant discrimination. But despite its continuing contributions, litigation is unlikely to achieve systematic racial reforms in the workplace beyond what has already been attained. As a result, it may be important for legal activists to rethink strategies for advancing the interests of minorities in the workplace. From the Pennsylvania Human Relations Commission to the Courthouse: Does Civil Rights Litigation Remediate Racial Inequality in the Workplace? by David J. Berney May, 2012 Submitted to the New School for Social Research of the New School in partial fulfillment of the requirements for the degree of Doctor of Philosophy. Dissertation Committee: David Plotke, Ph.D. (Chair) Victoria Hattam, Ph.D. Timothy Pachirat, Ph.D. Julia Ott, Ph.D. © 2012 David J. Berney For Sharon, Noa, Sasha, and Jonah and to all whose cause is social justice PREFACE In 1989, inspired by legal giants like Thurgood Marshall, I entered the University of Pennsylvania Law School with the twin goals of becoming a civil rights attorney and changing the world. In the 1980s, the courts were becoming increasingly more conservative. Nonetheless, I still held a faith that there existed federal judges on the bench that would be sympathetic enough to enforce the United States Constitution in the same spirit that motivated the Warren Court when deciding Brown v. Board of Education and scores of other cases that followed in its wake.1 As a result, civil rights lawyering still held promise for me as a way of alleviating societal inequalities. But now having served as a civil rights attorney for close to twenty years, I have become increasingly skeptical about the transformative power of a litigation- based civil rights model. My early legal experiences almost immediately started to challenge my preexisting faith in the system. During my first summer of law school, I served as a judicial intern for the Honorable John F. Gerry, Chief Judge for the United States District Court of New Jersey. Judge Gerry was a well respected federal judge, who had served as the chair of the executive committee of the Judicial Conference of the United States, which manages the general operations of the federal court system. By most estimates, this was a significant position to have as a first year law student. As a judicial intern, among other responsibilities, I was assigned the task of deciding motions that had 1 A number of legal scholars and commentators have noted the long shadow that cases like Brown v. Board of Education have cast over the civil rights movement. See for e.g.: Kenneth W. Mack, “Rethinking Civil Rights Lawyering and Politics in the Era Before Brown,” Yale Law Journal, Vol 115, No. 2, (2005), 258. Mack notes, “The Brown litigation has become the lodestar for a ‘legal liberal’ interpretation of civil rights history. Its core elements have become familiar: courts as the primary engines of social transformation; formal conceptual categories such as rights and formal remedies such as school desegregation decrees, as the principal mechanisms for accomplishing that change; and a focus on reforming public institutions (or, in some versions, public and private institutions without much distinction) as a means of transforming the larger society.” iv been filed in prisoner civil rights cases and drafting legal opinions disposing of those motions. Routinely, I would discuss the issues with the judge’s law clerks before presenting a draft opinion to the judge for his review. In one case, a plaintiff inmate had filed a civil rights lawsuit under the Eighth Amendment against a prison for its failure to provide him access to a physician. The defendant prison claimed that the plaintiff had failed to establish that the prison had been “deliberately indifferent” to his “serious medical needs” which is the standard to state a legal claim.2 As a result, the defendant prison filed a motion to dismiss the case. Already, one can see the inherent subjectivities built into such a legal standard. For example, what is “deliberately indifferent” to one person’s sensibilities may not be to another. The term “serious medical needs” can also be open to interpretation. The judge’s law clerk assigned the motion to me and suggested that we grant the motion and dismiss the case. I read through the motion, researched the law, and drafted an opinion, denying it. Judge Gerry signed it without amendment. This was my routine experience with Judge Gerry. Given that my drafts were routinely supported by sound legal analyses, he approved all of them without changes. But I am convinced that I could have written an equally compelling opinion deciding the motion in the opposite manner which I believe the judge would also have summarily approved. The difference in outcome for this prisoner lay simply in the sheer luck of the file having been assigned to me, a judicial intern, as opposed to the judge’s law clerk. My sympathies lay with the underdog – the inmate – and not with the more powerful state institution. Perhaps, the law clerk’s views were colored by the sheer volume of cases that were filed by prisoners. With considerable time on their hands, inmates 2 See for e.g., Estelle v. Gamble, 429 U.S. 97 (1976), which holds that “deliberate indifference” by a prison to an inmate’s “serious medical needs” amounts to “cruel and unusual punishment” in violation of the Eighth Amendment of the United States Constitution. v often repeatedly initiate lawsuits, many of which amount to frivolous filings.3 Perhaps, less cynically, the law clerk simply did not share my sense of empathy for the plaintiff and his alleged travails. Knowing the law clerk, I believe that both of our analyses would have been equally compelling. But because I possessed a different set of sensibilities, the plaintiff received a different outcome. I know that some judges take a more proactive role regarding the disposition of legal matters, but many other judges decide motions in the same fashion as Judge Gerry. As a result, many outcomes rest upon the social and political proclivities of the decision-maker rather than through some talismanic formula for deciding legal issues through neutral application of the law. Consequently, subjective legal standards become interpreted through the conscious and unconscious lens of the decision maker’s individual cultural norms and biases; so much for our presumptive blind application of the rule of law. In sum, my first legal experience taught me that the law’s operation could be as arbitrary as it can be objective. When I entered law school, I had also imagined the federal courts as a venue where individuals go to safeguard their rights against the abuses of the state or the ruling majority. Perhaps naively, I did not imagine that federal judges at that time could possess their own set of racial assumptions. I was quickly disabused of this assumption. During an interview with a federal judge for a position on his staff, the judge made some rather remarkable comments to me during the course of our interview. For example, he asked me about my religious beliefs, a question that normally gives rise to Title VII implications. He then seemed genuinely surprised when I haltingly offered that I was Jewish which he reframed as being a member of 3 In 1996, Congress passed the Prison Litigation Reform Act to curb the number of Eighth Amendment lawsuits filed by prisoners. vi the “Hebrew faith.” At some point during the course of the interview, he pointed out the window to Philadelphia’s City Hall, stating that if the Japanese ever attacked such a venerable symbol, he would give up his life before “we” ever surrendered it. After the interview, I discovered that he had fought in World War II and his memories of the war still lived with him.
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