Category Archives: Discrimination

Published: “The Misuse of Asian Americans in the Affirmative Action Debate”

I have a short essay called “The Misuse of Asian Americans in the Affirmative Action Depate” just out in the UCLA Law Review Discourse — the online companion to the UCLA Law Review — about the way opponents of affirmative action have attempted to leverage Asian American identity and experience in support of their position. Of course, some Asian Americans do oppose affirmative action, as is to be expected in a large and very heterogeneous community, but the larger point of my essay is that the claim that “Asian Americans” are “harmed” by affirmative action is not supported.

Washington Post Piece on Race Discrimination in the Sharing Economy

My coauthor Aaron Belzer and I have a piece on the Washington Post’s Monkey Cage Blog today about race discrimination in the sharing economy. It builds on recent media attention, particularly the sobering stories shared on Twitter under the #AirBnbWhileBlack hashtag, and incorporates some of the analysis from our forthcoming article “The New Public Accommodations.”

“The New Public Accommodations”: forthcoming in Georgetown Law Journal

Very pleased to announce that my article “The New Public Accommodations,” coauthored with Aaron Belzer, will be published in the Georgetown Law Journal in 2017. The piece discusses race discrimination in the sharing economy; all feedback is warmly welcome.

New on SSRN: “The New Public Accommodations”

A full draft of my article “The New Public Accommodations,” coauthored with Aaron Belzer, is now available on SSRN. Here’s the abstract:

The sharing economy raises important new questions about public accommodation laws. Such laws originally were enacted to prohibit establishments open to the public—for example, hotels, restaurants, taxi services, and retail businesses—from discriminating on the basis of characteristics such as race, color, religion, and national origin. Sharing economy businesses are functional substitutes for these traditional public accommodations. Yet existing public accommodation laws are not always a good fit for the unique features of the sharing economy.

This Article is the first to argue that public accommodation laws must evolve to address race discrimination in the sharing economy. Available evidence suggests that, in many circumstances, race discrimination affects the sharing economy in much the same way it affects the traditional economy. Sharing economy businesses use online platforms to connect providers of goods and services (drivers; landlords) with users of those goods and services (passengers; renters). These platforms often make race visible to both providers and users by requiring that they create profiles that include names, photographs, and other information. Such profiles may trigger conscious and unconscious bias and result in discrimination even if the parties never meet in person. Moreover, sharing economy businesses encourage or even require providers to rate users. Rating systems aggregate biases, and users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.

This Article examines existing public accommodation laws—Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1982, and the Fair Housing Act—and concludes that they hold considerable promise for remedying discrimination in the sharing economy. Nonetheless, the sharing economy presents new issues that existing laws do not entirely address. To the extent that sharing economy businesses perform the same function as traditional public accommodations yet escape existing laws, we argue that those laws should be amended and briefly describe the form the new laws should take.

Feedback is very much welcome–please feel free to contact either me or Aaron.

Negative Identity

My latest article is now out in the Southern California Law Review! You can download the final version here.

The piece is about identities defined by the absence of something that much of society thinks is important — for example, lack of religion, sexual desire, partnership, and children. I consider the existing protection that federal and state laws provide for atheists, asexuals, single people, and people with no children. I then consider whether such antidiscrimination  protection is warranted, and whether it should be expanded.

In Progress: The New Public Accommodations

I’m still taking a break from blogging while I continue to try to fully resolve my hand issues. I have, however, posted a short summary of my work in progress relating to race discrimination in the sharing economy on SSRN. The piece is called “The New Public Accommodations.” Feedback is welcome, and if you would like to see a longer draft in progress — one I’m not quite ready to post publicly — please feel free to email me.

Employment Discrimination Against Bisexuals

I highly recommend this recent article by Ann E. Tweedy and Karen Yescavage, “Employment Discrimination Against Bisexuals: An Empirical Study,” which is out this year in the William & Mary Journal of Women & Law. Among many other interesting, provocative, and troubling findings, the authors’ research found that 51.7% of bisexual people had experienced workplace discrimination, but only a small percentage (3%) had sought internal recourse, and none had sued.

In my own experience looking at the rates of lawsuits by multiracial people, one reason that targets of discrimination seldom seek recourse is that their claims don’t fit comfortably into the litigation narratives established by plaintiffs conventionally perceived as “monoracial.” Perhaps part of the story for bisexual targets of discrimination is a similar one.The piece demonstrates the importance of empirical research to doctrinal analysis and is well worth a read.

The RightsCast, Episode 8: Anthony Kreis, “The History of the Freedom to Marry”

I had a wonderful conversation this week with Anthony Kreis of the University of Georgia about his work on the history of the freedom to marry. His most recent article talks about the parallels and contrasts between the move toward interracial marriage legality and same-sex marriage legality. We also chatted about marriage equality before the Supreme Court and what’s next for LGBT rights — made even more pertinent by Indiana’s recent bill allowing businesses to discriminate against LGBT people.

Khaled Beydoun on Reciting the Pledge of Allegiance in Arabic

Khaled Beydoun (Barry) has a thoughtful analysis of the controversy over reciting the Pledge of Allegiance in Arabic. He traces the reaction to Islamophobia; it’s highly recommended reading.

I interviewed Khaled for Episode 4 of The RightsCast, “Legal Construction of Arab American Identity,” during which we touched on some of the same themes relating to discrimination against Arab Americans. Watch here:

Preview The RightsCast, Episode 5: Jessica Clarke, Inferring Desire

In this week’s episode of The RightsCast, I talk with Professor Jessica Clarke (University of Minnesota) about her research comparing sexual harassment cases involving same-sex harassment with those involving opposite-sex harassment.