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Floyd D. Weatherspoon

Permission Pending: Floyd D. Weatherspoon, Remedying Employment Discrimination Against African-American Males: Stereotypical Biases Engender a Case of Race plus Sex Discrimination, 36 Washburn Law Journal 23 (Fall 1996) (335 FootnotesOmitted)

The employment status of African-American males in the labor market and workplace is dismal. Labor statistics indicate that African-American males have one of the highest levels of unemployment. Employment opportunities for African-American males have continued to decline dramatically during the 1980s and into the 1990s. If employed at all, they are segregated into the lowest level positions and earn less than their white male counterparts.

African-American males who are successful in finding employment opportunities whether unskilled, skilled or professional are more likely to be victims of harassment and face overt discrimination in the workplace. Consequently, many qualified or qualifiable African-American males may find it less humiliating to remain unemployed, underemployed or to remain segregated in dead-end positions.

The reasons why the employment status of African-American males continues to deteriorate are numerous, but invidious employment discrimination is a major reason why their status continues to be tenuous. White Americans have negative perceptions and stereotypical biases of African-American male workers, which precipitate and fuel employment discrimination. These biases, unfortunately, overshadow any opportunity for African-American males to enter and progress in the labor market free from prejudice and hostility.

Employment discrimination against African-American males is not limited to either race or sex discrimination; it is a combination of race and sex. In other words, race is not the exclusive factor that inhibits employment opportunities for African-American males, and neither is sex. Race merged with sex forms the basis for “double-dip” discrimination. Meshed within this concept of race plus sex discrimination are negative stereotypical beliefs regarding African-American males that create a unique, and yet, challenging theory of discrimination for African-American males to prove, and for courts to analyze.

This theory of discrimination is not new to discrimination jurisprudence nor to our American legal system. However, the recognition and application of this theory by courts, employers and federal civil rights enforcement agencies to claims of discrimination against African-American males in most cases have been limited to race, without consideration of gender. This practice of pigeonholing all discrimination claims brought by African-American males on the basis of race and sex into a single and narrow legal framework has been detrimental to African-American male plaintiffs. Moreover, employers have systematically excluded African-American males from employment opportunities based upon stereotypical biases they perceive of African-American males. Without a recognition of a race plus sex model of discrimination, African-American male workers are often victims of discrimination without a legal remedy.

The purpose of this article is to explain how the deplorable status of African-American males in the labor market and in the workplace is the result of stereotypical biases and a combination of race plus sex discrimination directed at African-American male applicants and employees. This article will identify how the restrictive analysis by courts and enforcement agencies of employment claims filed by African-American males has been fatal to their claims of race plus sex discrimination. More importantly, this article proposes a number of recommendations for attacking employment discrimination against African-American males; thus, improving their employment status in the labor market.

Part II of this article describes the present status of African-American males in the labor market and factors which substantially contribute to their status, including stereotypical biases that employers consider when making decisions regarding their employment.

Part III discusses the impact of federal employment discrimination laws and the enforcement of those laws by the courts and federal civil rights enforcement agencies with respect to employment rights of African-American males.

Part IV describes and explains the application of the race plus sex theory of discrimination model. This section focuses primarily on how the courts have accepted the race plus sex model when applying it to African-American females' claims of discrimination. However, the courts have rejected or ignored the theory when African-American males present this model to prove a similar claim of race plus sex discrimination. This section also discusses how the courts, federal civil rights enforcement agencies and employers have failed to recognize and address the particular vulnerability of African-American males to discriminatory practices in the workplace.

Part V provides the courts, federal civil rights enforcement agencies and employers with recommendations for effectively identifying and remedying race plus sex stereotypical biases which result in employment discrimination directed at African-American males in the workplace. The recommendations proposed in this section are not a panacea for the multitude of issues African-American males confront in the workplace. These recommendations, however, will hopefully initiate a dialogue for addressing many of these problems. Moreover, if African-American males can find meaningful and stable employment in the labor market, it will enhance their abilities to resolve other issues related to their health, family, economic status and image.

Unlike the plight of African-American females, and similarly disenfranchised subgroups, very little legal scholarship has been written specifically on the plight of African-American males, particularly on the impact of the legal justice system. In this regard, the purpose of this article is to engender further legal research and scholarship in all other areas of the law which negatively impact the status of African-American males.