I recently chaired a panel presentation on the impact of the Black Lives Matter Movement (BLM) on race discrimination litigation against employers. This presentation occurred on May 25, 2021, exactly one year after George Floyd was murdered by Minneapolis Police Officer Derek Chauvin. A great deal has changed in that year but so much more progress can be achieved, which we discussed in this presentation and I summarize below.
Systemic Race Discrimination is Real and Extends Far Beyond Police Brutality
Any attempt to deny the persistence of systemic, societal race discrimination is refuted by undisputable facts. Black and Hispanic families earn, on average, between 25%-45% less than White families, when controlling for educational background, experience about twice the rate of unemployment, and report experiencing discrimination at work at staggering rates – 24% report employment discrimination within the last year according to a 2021 Report by the Gallup Center on Black Voices.
The Equal Employment Opportunity Commission (EEOC) is the “gateway” agency under the federal system to attempt to investigate and resolve these complaints favorably, and this agency is woefully understaffed and under-funded. Since 1980, the US Workforce has grown by 50%, yet the EOC has 40% less employees, and 15% less budget now compared to 1980. As a result, while race discrimination complaints comprise 34% of all EEOC charges, these charges have the lowest rate of favorable resolution (15% by settlement or verdict) than any other category of protected class discrimination.
Clearly, the systemic problem is getting worse and real change is long overdue.
The BLM Movement Can be the Catalyst for Real Change
The greatest achievement so far from the BLM Movement is the growing awareness and consensus that this systemic problem persists, and the increasing pressure to so something to effect real change. The recent Chauvin verdict, and the extensive juror questionnaires each prospective juror was required to complete, demonstrate not only the generally positive view of BLM and the right to engage in protest, but heightened awareness of the persistence of racial disparities across society, and the responsibilities of not only the legal system but also private companies to no longer tolerate racism in any form. While the ultimate impact of this growing perception has yet to fully materialize, it bodes extremely well for the prospect of achieving real progress in the immediate future, and for advocates to accept the responsibility and prosecute race discrimination claims.
How This Change will Likely Impact Race Discrimination Cases
There are four likely changes which, if they occur, will demonstrate that the legal system is responding effectively to the BLM Movement.
First, advocates need to relax the standards they apply to determining whether to offer contingency representation to Black and Hispanic potential clients who allege workplace discrimination. Contingency representation is the only avenue for access to justice for most minority employees – as paying legal fees by the hour is simply not realistic or possible for most victims of workplace discrimination. The BLM Movement should send an unmistakable message to advocates that the judicial system will be far more receptive to these claims, and the risk of offering contingency representation is well worth the potential reward.
Second, there should be a significantly higher potential for early settlement of these cases by responsible employers, given the level of corporate responsibility for change that BLM has generated, and the very real threat that public litigation will have even more adverse consequences, both in terms of reputation risk of loss, that before BLM.
Third, the scope of discovery available to race discrimination advocates and their clients should be broader than ever before, as judges have a better understanding of the persistence of systemic bias, and will likely be far more receptive to allowing production of statistical data, EEO efforts (successful and unsuccessful), and the treatment of others.
Fourth, jurors will be more receptive to finding discrimination when trial occurs, as reflected by the Chauvin verdict and questionnaire responses. Most of the public has a much higher degree of sensitivity to how discrimination occurs, that it is often subtle and not based on overt racism, and will be far more receptive to understanding that unequal treatment (including advancement, mentoring and harsher discipline) doesn’t have to be accompanied by direct evidence of race bias to support liability. Liability will therefore be much easier to establish. This will almost certainly also have a direct impact on damages awarded.
The Path Ahead
The team at Schaefer Halleen are fully committed to doing our part to ensure that the BLM Movement achieves great change and that systemic race discrimination becomes a relic of the past. In our area of influence – empowering client and advancing justice in the employment field – we are determined to represent our minority clients through whatever steps are necessary to vindicate their rights. We intend to do this with full confidence that the changes described above will be occurring, and that we are doing our part to make this change happen.