Excerpted From: Michael Z. Green, What Matters for Black Workers after 2020?, 25 Employee Rights and Employment Policy Journal 1 (2021) (76 Footnotes) (Full Document)


MichaelZGreenThis symposium issue examines concerns arising for Black workers after the transformative events occurring in 2020. Within the year 2020, we saw the senseless killings of George Floyd, Breonna Taylor, Ahmaud Arbery, and Rayshard Brooks as well as so many others that led to national and international protests in support of Black Lives Matter (BLM). Unions and many Black workers joined in further BLM solidarity during the Strike for Black Lives held on July 20, 2020. Black athletes have engaged in several prominent acts supporting BLM reforms including kneeling during the playing of the national anthem as started by Colin Kaepernick and continued by other National Football League (NFL) players, the longstanding activism by professional basketball players who are members of the Women's National Basketball Association (WNBA), and the members of the National Basketball Association (NBA) who conducted a wildcat strike in response to Jacob Blake's shooting. Likewise, Covid-19 disproportionately affected Black individuals in substantial and different ways than other groups, especially given that many of the so-called essential workers were Black.

Divisive political actions have also created many hostilities for Black workers in 2020 including the issuance of a Presidential Executive Order banning discussions of implicit bias and critical race theory in employee training programs conducted by federal contractors. Unfortunately, the purported architect behind the challenges to critical race theory trainings in the workplace and in schools has admitted that his purpose was to create a political weapon that would divide the country in a cultural war on issues related to Black persons. In 2020, white supremacist and militia groups openly carried weapons threatening many Black protesters and election workers.

Black persons in 2020 also continued to have lower salaries and levels of employment with greater opportunities to be arrested or imprisoned. Unfortunately, additional losses with the passing of so many Black civil rights leaders including John Lewis, C.T. Vivian, and Joseph Lowery occurred in 2020. After the 2020 presidential election, there remains considerable uncertainty about legislative, executive, and judicial actions in response to the political appointments and agendas of the previous four years and whether a new president may effectuate changes that may create significant benefits for Black workers. At least one commentator, Dean Angela Onwuachi-Willig, has asserted pessimism that “lasting social, political, and legal reform in the United States” will occur despite the creation of strong coalitions including many white persons who joined in the protests calling for racial justice after the George Floyd tragedy. According to Onwuachi-Willig's application of critical race theory in assessing the impact of the George Floyd protests from cultural trauma narratives, any connections with the everyday racial traumas facing Black persons have appeared to be only “temporary” responses without any evidence that the “feelings [of white persons] ... had ... forever changed by witnessing racialized police brutality.”

With these concerns in mind as to whether sustained changes may occur for Black workers after the George Floyd protests, the effects of Covid-19, and all the other aspects of systemic racism that became even more amplified through the events occurring in 2020, this symposium offers three articles that address some of the key matters that Black workers must continue to face. The first two articles consider the challenges in pursuing claims of employment discrimination based on the race of Black workers as well as their intersectionality with other corresponding and unique traits after the Supreme Court's 2020 decision in Bostock v. Clayton County. The last article in this symposium examines the legal concerns presented by increasing technological innovations allowing Black workers some job flexibility within the gig economy while also denying certain protections by classifying them as independent contractors instead of employees.

Professor Jamillah Bowman Williams' article, Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy, gives us some unique and current perspectives on the issue of intersectional discrimination based on race and sex for Black women. Building on the groundbreaking work of Professor Kimberlé Crenshaw from more than thirty years ago, Professor Williams explores the difficulties that Black women still face in establishing employment discrimination claims as a result of the intersection of race and sex. Despite the depths of the #MeToo movement's ability to shape claims of sex discrimination in a manner that has encouraged women to come forward to shine a light on sex discrimination, Williams notes that concerns for Black women subjected to intersectional discrimination appeared to be missing from this discussion.

Williams uses the Supreme Court's Bostock decision and its application in the lower courts applying a sex-plus framework in support of discrimination claims as a new first step to developing a more successful approach in asserting intersectional claims for Black women. Williams categorizes the current various approaches being employed by the lower courts to address intersectional claims. Under the sex-plus framework, the analysis requires a Black woman to compare her treatment in the workplace with the employer's treatment of Black men. Williams notes that the courts have been unwilling to endorse a race-plus framework instead. Williams finds this distinction to be a problematic result for a Black women's intersectional claims. As a response, Williams calls for a change in analysis that will recognize race can be a primary characteristic that allows a Black woman to use a race-plus intersectionality analysis to establish a valid employment discrimination claim based upon comparing her treatment in the workplace with how white women are treated.

Williams does not end her analysis there as she then asserts that one of the problems with either a sex-plus or race-plus framework as an intersectional discrimination claim is that both approaches require an overreliance on the use of comparators to establish the claim. Another approach that Williams identifies in lower court decisions is to accept that Black women are a protected class. Then Williams identifies the approach of looking at the totality or aggregate circumstances in assessing the intersectional claim. A final approach to intersectionality identified by Williams is one of an inconsistent or essentially an undecided approach in a couple of lower courts. Williams offers a chart that captures all of the frameworks and the lower courts that have accepted these approaches.

In her final recommendations, Williams obviously draws from her considerable scholarly work analyzing discrimination claims for Black women, as well as her completed dataset reviewing all state legislatures from 2016-2020 and finding no attempts to pass laws addressing intersectional claims for workplace harassment. Because of the lack of a cohesive effort to change the law to protect Black women in an approach that gives some voice to intersectional claims based upon both race and sex, Williams recommends that the scope of harassment be broadened to an aggregate approach aimed at making Black women a clearly protected class under both state and federal law. Williams ends her article by appreciating how the issues from #MeToo and racial justice protests have provided an opportunity for recognition of discrimination issues for Black women. But the need for more of a legal change to provide protections for Black women from intersectional forms of workplace discrimination remains a major challenge that Williams will continue to pursue.

In Bostock, the CROWN Acts, and Possible Right to Self-Expression, Professor Henry L. Chambers, Jr. looks at the possibilities for protected self-expression that Black workers may pursue as another form of intersectional claim as suggested by expanding principles being applied in defining race and gender discrimination. The first part of Chambers' article focuses on the impact of the Supreme Court's Bostock decision and how its analysis may lead to a major change in employment discrimination analysis to allow an employee's race or sex to be linked with self-expression as a protected activity.

In exploring this thesis, Chambers provides a detailed analysis of the majority and dissenting opinions in Bostock. Then he uses three issues related to sex to help explain the implications of the different Bostock opinions by analyzing pregnancy discrimination, bisexual harassers, and transgender bathroom decisions. To Chambers, the application of Bostock would justify finding that pregnancy discrimination is discrimination because of sex without Congress having needed to expressly state such coverage occurs as a result of the Pregnancy Discrimination Act. According to Chambers, even non-pregnant employees who are adversely affected by a rule because of the inability to bear a child would be subjected to discrimination because of sex even if the dissenting opinions in Bostock might disagree.

Chambers then shifts to a discussion of a discriminatory treatment of both men and women by a person he refers to as a “bisexual harasser.” According to Chambers, before Bostock, such behavior may not have been because of sex if the actor was harassing men and women equally. But after Bostock, the behavior of the bisexual harasser would result in double liability for the employer. In his last example of transgender bathrooms, Chambers argues that the dissenting opinion by Justice Alito in Bostock would suggest that any transgender discrimination in prohibiting someone from entering a bathroom that does not match the individual's biological sex would not be discrimination because of sex. Although the majority in Bostock did not address transgender bathroom issues, Chambers asserts that the majority's analysis would find that but for the biological sex of the user not matching the bathroom to be used, that use would be allowed; thus, the denial would be directly linked to discrimination because of sex without needing comparators.

Next in his analysis Chambers turns to pending state and federal legislation aimed at prohibiting discrimination based on hair texture or particular racially-matched hairstyles, the CROWN Acts. In particular, Chambers notes that a CROWN statute in Virginia arguably redefines race discrimination to also include traits associated with race, including hair, to be part of the protected-from-discrimination class. Accordingly, Chambers argues that if race discrimination could be interpreted to also include traits associated with race such as hair texture, this approach could also justify discrimination based on sex and traits associated with sex.

As a result of the analysis of Bostock and the possibilities presented by CROWN act legislation, Chambers asserts that these points open the door to establish protections for employee self-expression at work. A broad interpretation would limit an employer from treating an employee differently based upon a protected characteristic such as race or sex as well as any trait related to that class. Chambers concludes that immutable traits associated with a person's protected class, for example, hair texture, should now be protected by the implications of the definition of discrimination as determined by the Court's analysis in Bostock and any CROWN Acts legislation that becomes law. This would further protect workers who have been forced to cover or assimilate at work, a powerful expansion of rights for a host of workers including Black workers.

The last article in this symposium by Professor Michael C. Duff, Challenges for Black Workers After 2020: Antiracism in the Gig Economy, addresses the concerns of Black worker status as employees or independent contractors in the technology-driven gig economy. Professor Duff shines a spotlight on the key loss for Black workers in the gig economy if they are deemed independent contractors; they lose all their rights under employment antidiscrimination laws which only protect employees especially Title VII of the Civil Right Act of 1964. In acknowledging this loss, Professor Duff has mapped out particular alternatives to see if the result can be ameliorated.

Professor Duff first explores opportunities to provide independent contractors with antidiscrimination legal rights through the consideration of statutory Section 1981 claims. However, Professor Duff noted the Supreme Court's analysis of Section 1981 claims in 2020 in Comcast Corp. v. National Ass'n of African American-Owned Media has made it more difficult for a plaintiff to proceed because of heightened pleading standards and the need to establish but-for causation.

Then Duff examined the status of California legislation and activism aimed at protecting gig economy workers by offering them protections under antidiscrimination laws. Eventually, California voters approved by referendum Proposition 22, which requires that all “app-based transportation (rideshare) and delivery workers” had to be found to not be employees. This approach is contrary to California's liberal case law approach under its ABC test which presumes workers are employees in wage order cases.

Due to California's demographics, as argued by Duff, Proposition 22 leads to many people of color and immigrants being unable to become employees while working in those gig economy jobs covered by the referendum. However, Proposition 22, as now codified, did create protections against discrimination in the contracting or termination of their contracts. Apparently, these provisions do not offer the full remedies available under Title VII. However, according to the proponents of the referendum, they had to add antidiscrimination protections to make sure the voters would pass it. In his final points, Duff looks at case law under the National Labor Relations Act to find that there is nothing that prevents Congress or a state legislature from requiring that independent contractors have the same rights as employees to sue under antidiscrimination statutes.

[. . .]

Although states and Congress could adopt the ABC test presumption that would offer employee rights against discrimination to the mostly Black and people of color individuals who serve as gig workers, Duff argues instead that the better result for these workers is for antidiscrimination and labor protection statutes to include independent contractors within their coverage without the causation limits imposed by the Supreme Court for Section 1981 claims. Regardless of how this result is obtained, Duff makes us aware of the racial impact the gig economy has on its workers due to its efforts to continue making its industry workers independent contractors instead of employees.

But Duff also provides a way to avoid the deleterious effect of cutting off the rights of many Black gig economy workers to be protected from discrimination in hiring and termination. Duffs solution in his article is to build upon the efforts in California and make all independent contractors have the right to seek recovery for racial discrimination. This approach aligns with the concerns of all the articles in this symposium of identifying major concerns for Black workers after 2020 and proceeding with suggestions to protect the rights of those Black workers going forward.

Professor of Law and Director, Workplace Law Program, Texas A&M University School of Law.