The Volokh Conspiracy
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My most recent working draft for an article is entitled The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression. Here is the abstract:
How might things be different if Title VII's remedial provisions had not been expanded by the Civil Rights Act of 1991 to allow for the recovery of compensatory and punitive damages, including damages for emotional distress? History doesn't disclose its alternatives, but one possibility to consider is this: While the more generous remedies likely had many effects, both good and ill, ultimately two of the most lasting and consequential effects may have been to encourage the growth of identity politics and to weaken support for American norms of free expression—at least as those norms apply to statements that relate to race, sex, or national origin. We all know that culture affects law. But, one way or another, law affects culture, too.
The article discusses how the original Title VII, passed as part of the Civil Rights Act of 1964, limited successful plaintiffs to recovery for lost wages and/or injunctive relief (both of which were considered equitable remedies and hence not subject to jury trial). It also provided an unusual benefit: recovery for attorneys' fees. Given that individuals who might otherwise be interested in bringing a racial or sexual harassment complaint often had no desire for an injunction and hadn't lost any wages, these limitations had the effect of keeping the number of harassment lawsuits small.
The Civil Rights Act of 1991 expanded Title VII remedies to include limited punitive damages and recovery for emotional distress (common law remedies that required a right to a jury trial). Members of Congress intended these more generous remedies to be useful to plaintiffs in harassment cases. And given that the number of EEOC harassment complaints skyrocketed, they obviously were useful. But I wonder if those Members of Congress anticipated how their changes to the law would combine with the already existing attorneys' fees remedy, the vaguely defined standard for harassment and in particular its cumulative nature, and the rule prohibiting retaliation against complainants. Taken together, these factors create a powerful incentive—perhaps more powerful than was intended—for employers to come down hard on anything relating to race, sex, or national origin that might cause offense.
In addition, since employer liability often turned on whether the employer exercised reasonable care to prevent racial and sexual harassment, internal harassment prevention bureaucracies and training courses have become de rigueur—even in cases in which the employer thinks they aren't helping to eliminate harassment.
The demand for training courses has created an industry, and the businesses that make up that industry are keen to encourage both employers and employees to believe that even the smallest "micro-aggressions" must be avoided.
Over the course of three decades, all of this has had an effect on workplace culture and on culture in general. On the one hand, on-the-job harassment may be less common. But Americans—especially younger Americans—are more likely to see everyday issues through lens of race, sex, and national origin and more likely to be skeptical of the value of free expression. And so are their employers.
The article will be published in the Texas Review of Law & Politics.
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