As a result, many workers do not come forward to report discrimination, and, with little chance of accountability for harm, organizations do not make it a priority to address the problems. The few workers who speak up do so at great risk and face a small chance of success. These models create hurdles for workers in obtaining protection under anti-discrimination laws and have fostered a lack of accountability for widespread discrimination in hiring as well as rampant sexual harassment.ĭue to this failure of our legal and institutional structures to confront vast information and power imbalances between employers and workers, particularly the most vulnerable workers, our enforcement scheme allows systemic discrimination to go unaddressed. And businesses are increasingly outsourcing labor to reduce labor costs and responsibility for workers by contracting out work to independent contractors (who may be misclassified employees) or through temporary staffing agencies. Furthermore, courts have interpreted our anti-discrimination laws in ways that have not confronted the vast information and power imbalances between employers and workers. In addition, federal anti-discrimination laws such as Title VII have carved out from protections many of our most vulnerable workers, such as domestic workers and migrant farmworkers on small farms, by excluding smaller employers. This power imbalance has enabled employers to write contractual rules, including forced arbitration clauses and nondisclosure agreements that strip away employee rights and undermine effective enforcement. The problem is compounded by the dramatic asymmetries of information and resources between employers and employees, asymmetries that often create insurmountable hurdles for workers to defend their rights. Yet the enforcement system does not adequately protect workers from retaliation.
At the root of the problem is a system that places the primary responsibility for enforcing anti-discrimination laws on individual workers, who must file complaints with their employer or a government agency. The promise of our nation’s anti-discrimination laws has not been fully realized because our current enforcement and legal system has failed to confront the fundamental power imbalance underpinning the employment relationship.
Over a half century after transformative civil rights laws such as Title VII of the Civil Rights Act of 1964 made discrimination illegal, America is still grappling with its history of racial injustice and the profound ongoing impact of systemic discrimination.
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