The print issue of our 2021 symposium on anti-discrimination law is out! The National Institute for Workers’ Rights joined with the American University Journal of Gender, Social Policy & the Law (“JGSPL”) and NELA to host a symposium on Enhancing Anti-Discrimination Laws in Education and Employment. With the release of the journal, we’re looking back at some of the key themes that emerged—many of which relate to the serious obstacles to enforcing the law. 

In the opening panel, experts from the EEOC and the D.C. Office of Human Rights discussed the challenges federal agencies face in enforcing anti-discrimination law at a moment of congressional dysfunction and judicial hostility. State and local agencies play an increasingly important role in implementing employment protections when federal hands are tied.

Radical policy shifts on Title IX guidance have also produced headaches for higher education, as have the twin challenges of timely response to individual complaints and big-picture analysis of institutional policies and patterns of discrimination. The second panel of the day focused on the training, education, funding, and access to data universities would need to properly enforce Title IX, with attention to intersectionality and fostering a culture of inclusion and equity on campus.

In her keynote address, Ford Foundation Professor of Law and the Social Sciences at Yale Law School Vicki Schultz reviewed the many failings of civil rights law over the years: the ways that continual narrowing of enforcement through procedural hurdles, delay in judicial recognition of rights, and excessive formalism in legal analysis have hobbled civil rights law over the last several decades. Professor Shultz then outlined a seven-point reform agenda including shifting law to respond to needs on the ground, redressing historical inequality, engaging in multi-prong approaches, coordinating across federal agencies, strengthening substantive employment rights, redistributing power across the social spectrum, and fostering shared visions of the future.

The afternoon’s attention shifted to the evolving jurisprudence of harassment law, with a diverse panel of practitioners led by Professor Ann McGinley and Pro Publica reporter Bernice Yeung. Once again, in the face of federal dysfunction, panelists called on state and local agencies to develop best practices in addressing systemic harassment issues while the federal government works to overcome “a lethal mix of substance and procedure” that prevents effective enforcement on the federal level, per Professor McGinley.

Leading practitioners Joseph Sellers and Aniko Schwarcz’s panel followed, with a discussion of the harms inherent in the internal complaint requirement known as the Faragher-Ellerth defense in harassment cases. Complaining about sexual harassment continues to be highly stigmatized, and internal complaint systems may be infeasible or career-destroying for victims. As a matter of equitable tolling, situations where filing an internal complaint would have been infeasible or would have clearly had adverse career impacts need to be taken into account.

To close out the day, attention turned to the “Future of Employment Law,” with hopeful proposals for reform. Panelist Geraldine Sumter called for new laws to protect workers from abusive scheduling practices, and Karla Gilbride laid out a visionary proposal to reform the ADA to embrace principles of universal design in American workplaces. Rather than rely on workers to affirmatively request accommodation, how can we make the workplace as accessible as possible at the outset? Professor Stephen Rich of University of San Diego gave an overview of his theory that discrimination reflects a social process whereby employers shape the distribution of skills and capacity to achieve within the workplace, and encouraged participants to consider how the law might help reshape this socially-constructed order going forward. Echoing the morning’s panels, Professor Marcia McCormick discussed the ways employment anti-discrimination laws have ossified in the courts, confusing employees and hampering the search for truth.

Finally, Michael Selmi called attention to the dramatically outdated Title VII damage caps on compensatory and punitive damages. Congress set static caps on compensatory and punitive damage awards for plaintiffs in Title VII actions over thirty years ago, and the numbers have never been updated since. Workers who successfully bring a Title VII claim are limited to compensatory and punitive damages from just $50,000 for employers with up to 100 employees to $300,000 for employers with more than 500 employees –a pittance for companies like Amazon or Walmart. Even just accounting for inflation, the real value of a Title VII damages award is worth less than half today of what it was worth in 1991. Eliminating these caps, or at the very least updating them with numbers indexed to inflation, would help incentivize companies to better comply with existing laws.  

The symposium highlighted the need for worker-centered research and policy focused on the practical realities of enforcement through agencies and the courts. We aspire to a future in which all workers are treated with dignity and respect; workplaces are equitable, diverse, and inclusive, and the wellbeing of workers is a priority in business practices—and the Institute is working to bring attention to the steps we need to take to get there.

We would like to extend our heartfelt thanks to JGSPL editors Adriana E. Morquecho & Inka Sklodowska; former NIWR president Rebecca Saldaweh; NIWR Board Member Bruce Frederickson; and Washington College of Law Deans Lisa Taylor and Susan D. Carle for their tireless work to bring this symposium together.

The Symposium was dedicated to the memory of Paul H. Tobias, founder of the National Employment Lawyers Association (NELA). Paul was a warm and charismatic visionary with tremendous compassion for working people. Paul leaves a legacy that drives us all to work harder for equity and justice in the workplace. And with a generous gift from his estate to the National Institute for Workers’ Rights, Paul made this Symposium a reality.