The Roots of Wokeness

The following is my most recent article draft. The Roots of Wokeness:  Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression.This is the abstract

It is possible that Title VII would have been reformed by the Civil Rights Act of 2011. This law allows for punitive, compensatory and emotional damages. 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. It is well-known that law has an impact on culture. Law can affect culture in one way or the other.

In this article, we will discuss how Title VII was passed in 1964 as part of Civil Rights Act of 1964. This limited the rights of successful plaintiffs to claim for lost wages, or injunctive remedies (both of which are considered equitable remedies so they don’t need to be tried by a jury).   The unusual advantage was the recovery of attorneys’ fees. Because many individuals may not have otherwise been inclined to file a racial/sexual harassment claim, they didn’t often want an injunction or hadn’t lost wages. These restrictions had the effect keeping harassment lawsuits down.

Title VII remedies were expanded by the Civil Rights Act of 1991 to include punitive and emotional damages. These are common law remedies which do not require a right of trial before a jury. These more expansive remedies were intended to benefit plaintiffs in harassment cases by members of Congress. Given the rise in harassment complaints to the EEOC, it is clear that they were very useful. It begs the question of whether the members of Congress were aware that their proposed changes would result in the already-existing attorneys’ fee remedy, the vaguely stated standard for harassment, its cumulative nature and the ban on retaliation against complaints. 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.

Training courses are in high demand. Businesses that work within this industry want to promote a culture of cooperation between employees and employers.

All of these factors have had an impact on the workplace culture over three decades. While harassment at work may seem less prevalent, it is still a problem.  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. Their employers are also affected.

This article will appear in Texas Review of Law & Politics.