This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, compels a reconsideration of the existing enforcement scheme. The Article then theorizes a new model for combining public and private enforcement efforts and using administrative procedures under existing law more robustly to leverage the relative strengths of each part of the statutorily designed compromise. This proposed model offers both a strategic response to recent economic and legal developments that threaten effective antidiscrimination enforcement and an opportunity to more perfectly realize Congress's original enforcement vision.
Stephanie Bornstein, Rights in Recession: Toward Administrative Antidiscrimination Law, 33 Yale Law & Pol'y Rev. 119 (2014), available at http://scholarship.law.ufl.edu/facultypub/671