Progressive Corporations At Work: The Case of Diversity Programs

Soonhan Kim, Alexandra Kalev, and Frank Dobbin

Abstract

During the civil rights era in the 1960s, the federal government passed a series of measures to end racial and gender discrimination in the workplace. Yet the laws and regulations did not clearly define what constituted illegal discrimination and gave only weak enforcement power to federal agencies. As a result, over the following decades, corporations themselves have defined how they will comply with civil rights law. Human resources managers have created a series of programs designed to improve the status of women and minorities in the workplace, from formalized hiring and promotion procedures to diversity training to mentoring programs. Since firms have made different decisions about which programs to implement, researchers can track firms across time to study the causes and effects of the various programs.

In this article, we review many studies, some of which are our own, to find out what factors lead firms to implement anti-discrimination programs and which of these programs are actually successful at increasing workforce and management diversity. We find that regulatory pressure from the federal government has become less influential in driving firms to adopt diversity programs. Instead, advocacy from groups within the firm and industry culture have played greater roles in recent decades. We also find that some of the most popular equal opportunity programs are not actually the most effective. Formalized hiring and promotion procedures, diversity training, and grievance procedures do not lead to improvements in workforce diversity. We argue that these programs are ineffective because they treat managers as the source of the problem. The programs that do lead to results, such as recruitment initiatives and diversity taskforces, are successful because they engage managers in finding solutions. We also conclude that members of historically disadvantaged groups do not benefit from networking programs, but they do benefit from mentoring programs, which link them directly to managers who can help them advance in their careers.

Our findings have important public policy implications. Despite progress since the civil rights era, women and minorities are still underrepresented in management-level positions. Therefore, it remains as pressing as ever to understand which programs are effective in promoting workplace equality. The conclusions we present here offer guidance for managers deciding which programs to implement, courts awarding injunctive relief in discrimination suits, and agencies enforcing equal opportunity laws.

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The History of Voter Suppression and VRA’s Section 5 Today

by Sean McMahon

The 2012 election cycle was rife with a new crop of voter suppression measures, designed to reduce the access of minorities, the poor, and limited-English speaking citizens to the polls. Despite these well-documented abuses of the electoral process, advocates have emerged arguing that disenfranchisement of minorities is no longer a major concern and that Section 5 of the Voting Rights Act – the federal government’s bulwark against disenfranchisement – is unconstitutional.

The Supreme Court will decide the fate of Section 5 in Shelby County v. Holder, a case brought by a district in Alabama asserting that Section 5’s requirements violate federalism and equal protection. Section 5 requires jurisdictions with a history of racial discrimination to obtain federal preclearance before changing any voting procedure or regulation. This places the burden on state and local governments that fall under the coverage of Section 5 to justify their new electoral procedures as nondiscriminatory.

In considering whether Section 5 is still necessary today, it is worth reflecting on why such a far-reaching measure was adopted originally. Civil rights leaders understood that limiting access to the polls – even with facially neutral laws – could have a grossly disproportionate impact on minority voters and effectively prevented their participation in the political process. Section 5 is designed to prevent such laws from going into effect and is a major reason the Voting Rights Act has been called “the most effective civil rights law ever enacted.”

Disenfranchisement from the Civil War to the Civil Rights Movement

Following the passage of the Fifteenth Amendment in 1870, all men “regardless of of race, color, or previous condition of servitude” were formally ensured the right to vote. Yet for nearly a century, people of color were disenfranchised via literacy tests, poll taxes, and grandfather clauses. Since generations of slavery and racial inequality rendered people of color far less wealthy and educated than whites, these facially neutral laws effectively disenfranchised many African Americans.

After the formation of the NAACP in 1909, African American leaders pursued a strategy to challenge restrictive voting laws. Despite notable victories in cases such as Guinn v. United States, 238 U.S. 347 (1915) (striking down a grandfather clause in Oklahoma and Maryland) and Smith v. Allwright, 321 U.S. 649 (1944) (striking down whites-only Democratic primaries), racist voter suppression was too pervasive to be defeated by individual lawsuits. Furthermore, it was sometimes difficult to prove the government enacted these laws with discriminatory intent, which was necessary to establish an equal protection violation. Compounding the NAACP’s struggle was the fact that a single case could take years to win.

As the Civil Rights Movement gained ground throughout the 1950s and early 1960s, white supremacist tactics evolved and became subtler. Some jurisdictions implemented new facially neutral voting tests purporting to measure understanding of the issues and the character of the voters. Due to longstanding systemic inequality in education and subjective evaluation of good character, these tests effectively barred African Americans from the polls. Incumbent white politicians further disempowered African American voters by gerrymandering voting districts to weaken the black vote and prevent the formation of majority-black districts. In order to halt this deliberate avoidance of the requirements of the Fifteenth Amendment, Congress enacted Section 5 of the Voting Rights Act to force state and local governments across the South to justify any new electoral rules and procedures.

President Lyndon Johnson signs the Voting Rights Act as Martin Luther King, Jr. and other civil rights leaders look on. (Photo credit: The U.S. National Archives)

The Voting Rights Act to Today: Why Section 5 Is Still Needed to Protect Access to the Political Process

Congress renewed the Voting Rights Act in 1982 and again in 2006; both times, it noted the continued importance of Section 5 despite advancements in racial justice. Jurisdictions under Section 5 persist in proposing regulations that restrict minorities’ access to the polls. The number of Section 5 objections (regulations flagged by the Department of Justice as discriminatory) has declined since the 1960s, but the provision has not fallen into disuse. The Lawyers’ Committee’s National Commission on the Voting Rights Act found that between 1965 and 2004, over half of all objections were made after 1982. Surveying data from 1982 to 2004, the Commission found that out of 800 DOJ requests for more information from state and local governments regarding new rule proposals, 205 rule proposals were withdrawn. Columbia law professor Nathaniel Persily notes that this “gives a sense of how many dogs did not bark as a result of the threat of denial of preclearance.”

In this past election cycle, conservative politicians sought new voting rules in order to reduce Democratic voter turnout. Section 5 has been the strongest defense against voter suppression tactics. In the past year, Section 5 prevented the reduction of early-voting hours in some districts in Florida and blocked a voter ID law in Texas. The court that struck down the Texas ID law noted that the required documentation would be enormously burdensome to obtain, and would disproportionately affect minorities and the poor. Recently, federal judges used Section 5 to block a Texas redistricting plan that would have divided a population of African American and Latino voters into new, white-majority districts. Judge Thomas B. Griffith described it as a “deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.”

Jurisdictions under Section 5’s review have complained that it is burdensome and unfair since other jurisdictions do not need to submit to preclearance. However, it is possible to be released from Section 5 preclearance – a jurisdiction simply needs to refrain from proposing a discriminatory electoral law for ten years. Over seventy jurisdictions have successfully done so,and ten jurisdictions in the state of New Hampshire are currently in the process of being released from Section 5 review, which would make it the first entire state to leave Section 5 coverage – though a conservative advocacy group is attempting to block the release as part of a broader strategy to strike down Section 5 as unconstitutional.

Society has changed for the better in the past half-century, and the turnout of minority voters is on the rise. But the amelioration of a problem is not its eradication. Until full and equal participation for people of color in the political process can truly be guaranteed, Section 5 is necessary to enforce their political and civil rights.

Sean is a 2L at NYU and a Staff Editor on the Review of Law & Social Change.

Language Access Advocacy After Sandoval: A Case Study of Administrative Enforcement Outside the Shadow of Judicial Review

Jessica Rubin-Wills

Abstract

Many individuals with limited English proficiency (“LEP”) face language barriers that make it difficult for them to access federally funded services for which they are eligible, including public housing, welfare benefits, and health care. In response to this concern, the federal government issued regulations under Title VI of the Civil Rights Act of 1964 that require any programs receiving federal funding to provide oral interpretation and written translation for LEP individuals. In 2001, the Supreme Court ruled in Alexander v. Sandoval that individuals have no private right of action to enforce these language access regulations in court. Instead, lawyers for LEP individuals have been forced to rely on filing administrative complaints with federal agencies rather than using litigation to vindicate their clients’ rights under Title VI. This Article examines language access advocacy in the decade since Sandoval as a case study of how effectively federal civil rights laws can be enforced in the absence of judicial review. As this Article finds, the administrative enforcement process provides incentives for all parties to reach a negotiated solution. In a setting that is often less adversarial than litigation, advocates and federal funding recipients can collaborate on long-term, comprehensive plans to improve services for the LEP community. At the same time, the administrative enforcement process fails to redress the harms to individual LEP clients who are denied access to services. The federal government uses a form of cost-benefit analysis to respond to administrative complaints, which supports efficient systemic reforms but denies relief to individual clients. The Article concludes by offering recommendations for how advocates can work within the administrative enforcement process for as long as  Sandoval remains the law and judicial review of Title VI language access claims is foreclosed. Advocates should make the cost-benefit case for language access reforms by gathering additional data to quantify the benefits and to minimize the costs. Advocates should also encourage the federal government to provide more specific guidance to funding recipients about language access obligations. Finally, advocates should seek other avenues for protecting the rights of individual LEP clients, since the administrative enforcement process does not provide individual remedies.

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The People’s Right to a Well-Funded Indigent Defender System

Martin Guggenheim

Abstract

This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. It argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Constitution was designed to ensure a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. At one time, the primary means for overseeing prosecutors was through the jury system. In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. This is the first Article to suggest that the Sixth Amendment right to counsel, universally regarded as an individual right, simultaneously serves as an essential structural protection for all of society by ensuring that courts are able to perform their independent role of checking executive power. In our adversarial justice system, judges are constrained from performing more than a very modest investigation into cases. Instead, if investigations conducted outside of the executive branch are to take place, they will be done by defense counsel.

An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general, enforcing the rights of her client, the collective defense system should be seen as the investigative arm of the judiciary, providing meaningful oversight on executive power. Without a robust indigent defender system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis. The current system, which allocates inadequate funds for indigent defense, raises a substantial separation of powers question because, in practice, the executive branch has too much accumulated power (to prosecute and to influence the outcome of a filed case on grounds other than the merits) and, relatedly, the judicial branch is denied  the ability to carry out  its duty to decide cases independently.  The implications for this new understanding of the right to counsel are immense, not only allowing affirmative class-action challenges to under-funded indigent defender systems, but also requiring counsel for civil litigants whenever the government is the petitioner.

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