Louisiana Law Review


Racism in the workplace, Normativity (Ethics), United States. Civil Rights Act of 1964, United States. Supreme Court, Race discrimination -- United States, Sociology -- United States, Verstehen


Since 1967, sociologists have produced a compelling body of literature on structural racism that explains why severe racial disparities persist throughout American society in all social domains: employment, education, residential patterns, wealth accumulation, and so on. Structural racism perpetuates the effects of past, overt discrimination because it does its work through organizational procedures and social policies that appear to be race neutral. Dealing with structural racism requires us to focus on social structure instead of the intentions of bigoted individuals. In this Article, we link the disciplines of sociology and constitutional history to demonstrate that the U.S. Supreme Court has refused to recognize the reality of structural racism in the workplace. Instead, the Court has developed legal doctrines that protect this hidden form of racism, assure its continuation, and disable other branches of the federal and state governments from eradicating it. The Court's willful blindness toward race and employment ignores the reality of structural racism and instead embeds the justices' unacknowledged racial policy preferences into constitutional law. Their doctrinal assumptions about intent, colorblindness, facial neutrality, and white innocence enable them notjust to ignore structural racism but to perpetuate and affirm it. In this Article, we first review the sociological literature on structural racism and construct a template of structural racism by identifying its six key components: (1) irrelevance of intent, (2) individualism, (3) belief in structural neutrality, (4) colorblindness, (5) white advantage, and (6) invisibility. We then provide examples of structural racism in the social domain of employment. Next we demonstrate how Supreme Court constitutional decisions regarding employment since 1964 map onto this template of structural racism: (1) the Court demands a showing of intent, (2) the Court insists on the notion that racism is inflicted only by individuals upon individuals, (3) the Court persists in its belief in structural neutrality, (4) the Court's anti-classification understanding of equal protection is merely a judicial formulation of colorblindness, (5) the Court's concern for white innocence reaffirms white advantage and white normativity, and (6) the Court's embrace of all five of these components serves to keep structural racism invisible and thereby further maintains it. We conclude first that the Court has ignored nearly a half-century ofsubstantial research in sociology and instead has clung to outdated assumptions about how racism operates that perpetuate racial inequality. Second, we find that at the same time, the Court does invoke structural social understanding—by ignoring intent, being attentive to group actions and effects on groups, andfocusing on inadvertent effects of institutional policies and procedures—but does so only to protect whites' interests.