Equality Law Amid Sabotage
We have about ended de jure segregation . . . because of the Civil Rights [Act of 1964]. Footnote #1 content: Democracy Now, Part 2: Newly Discovered 1964 MLK Speech on Civil Rights, Segregation & Apartheid South Africa, at 07:13–07:24 (YouTube, Jan. 17, 2017), https://www.youtube.com/watch?v=HFeh_qLrubY [https://perma.cc/B2NG-VKW4].
[After the passage of the Civil Rights Act of 1964], white people were very badly treated . . . . It also hurt a lot of people—people that deserve to . . . get a job were unable to get a job. So, it was . . . a reverse discrimination. Footnote #2 content: Erica L. Green, Trump Says Civil Rights Led to White People Being “Very Badly Treated”, N.Y. TIMES (Jan. 11, 2026), https://www.nytimes.com/2026/01/11/us/politics/trump-interview-white-people-discrimination.html.
In the United States, federal equality law—born of robust social and labor movements which demand a more just political economy—has failed to dismantle racialized economic inequality. Footnote #3 content: NEIL BHUTTA ET AL., FED. RSRV., DISPARITIES IN WEALTH BY RACE AND ETHNICITY IN THE 2019 SURVEY OF CONSUMER FINANCES (2020), https://www.federalreserve.gov/econres/notes/feds-notes/disparities-in-wealth-by-race-and-ethnicity-in-the-2019-survey-of-consumer-finances-2020 0928.html [https://perma.cc/GNU5-K9TX] (documenting substantial racial wealth gaps, with median white household wealth nearly eight times that of Black households); U.S. BUREAU OF LAB. STAT., LABOR FORCE CHARACTERISTICS BY RACE AND ETHNICITY, 2023, https://www.bls.gov/opub/reports/race-and-ethnicity/2023/ [https://perma.cc/U7VF-B2F3](showing persistent disparities in unemployment, wages, and occupational segregation); Raj Chetty et al., Race and Economic Opportunity in the United States: An Intergenerational Perspective, 135 Q.J. ECON. 711, 737–60 (2020) (finding significant racial disparities in income mobility and life outcomes). Equality laws—the civil rights, employment, and labor regimes we have inherited in the twenty-first century—nominally offer formal guarantees of equality at work, in education, and in access to housing and goods. Footnote #4 content: Contemporary federal equality law is not a single codified category, but a cluster of statutory laws passed over more than a century that aim—at least formally—to prevent discrimination and promoting equal access. The laws that I focus on here are those most focused on structuring the economic terms and conditions of work and the distribution of power within labor markets. See, e.g., Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (codified as amended at 29 U.S.C. § 206(d)); Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621–634); Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101–12213); National Labor Relations Act, Pub. L. No. 74-198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151–169); Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201–219); Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1590 (codified as amended at 29 U.S.C. §§ 651–678) (together structuring the terms and conditions of work and the distribution of power within labor markets). Yet they remain layered onto an economic order fundamentally structured by racial hierarchy. Footnote #5 content: CEDRIC J. ROBINSON, BLACK MARXISM: THE MAKING OF THE BLACK RADICAL TRADITION 2 (3rd ed. 2020). This legal failure is not new but traces to the abandonment of Reconstruction efforts to remake the political economy through land and resource redistribution to former slaves. Footnote #6 content: See, e.g., W. E. B. DU BOIS, BLACK RECONSTRUCTION: AN ESSAY TOWARD A HISTORY OF THE PART WHICH BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN AMERICA 1860–1880, 580–84, 700–03 (Harcourt, Brace and Co. 1935) (describing the failure to redistribute land and the subsequent reconstitution of racialized labor regimes); ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877, 524–34, (1st ed. 1988) (detailing the political and economic abandonment of Reconstruction reforms); STEVEN HAHN, A NATION UNDER OUR FEET: BLACK POLITICAL STRUGGLES IN THE RURAL SOUTH FROM SLAVERY TO THE GREAT MIGRATION 266, 413 (2003) (tracing the suppression of Black political and economic power in the post-Reconstruction South). Amidst the collapse of these post-abolition efforts, systems of racialized labor exploitation were not dismantled, but reconstituted. The early- and mid-twentieth-century labor and civil rights settlements, for all their transformative aspirations, did not fundamentally disrupt this trajectory. Instead, they narrowed earlier demands for economic redistribution and worker power first into laws with de facto racialized exclusion and then into a legal regime that offered a more limited commitment to formal equality of opportunity. Footnote #7 content: See, e.g., IRA KATZNELSON, WHEN AFFIRMATIVE ACTION WAS WHITE: AN UNTOLD HISTORY OF RACIAL INEQUALITY IN TWENTIETH-CENTURY AMERICA 31–37 (2005); Barton J. Bernstein, The New Deal: The Conservative Achievements of Liberal Reform, in TOWARDS A NEW PAST: DISSENTING ESSAYS IN AMERICAN HISTORY 263, 264–65 (Barton J. Bernstein ed., 1968). By the mid-1960s, civil rights, employment, and labor laws prohibited overt exclusion from jobs, housing, and education, but they left intact the underlying organization of racialized subordination in economic and political life. Footnote #8 content: Critical race theorists and law and society scholars have made this argument empirically and theoretically for some time. See, e.g., DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW 20–22 (6th ed. 2008) (introducing the persistence of racial hierarchy and the constraints of interest convergence); Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment, 101 HARV. L. REV. 1331, 1342 (1988) (critiquing the individualistic framework of civil rights law and its failure to address structural conditions); Laura Beth Nielsen, Robert L. Nelson, & Ryon Lancaster, Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post–Civil Rights United States, 7 J. EMPIRICAL LEGAL STUD. 175, 178, 194–96 (2010) (examining how employment discrimination litigation prioritizes individualized claims over collective redress); ELLEN BERREY, ROBERT L. NELSON & LAURA BETH NIELSEN, RIGHTS ON TRIAL: HOW WORKPLACE DISCRIMINATION LAW PERPETUATES INEQUALITY 13–14 (2017) (arguing that employment discrimination law often reinscribes workplace hierarchies while challenging them).
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