Volume VII

FORDHAM UNDERGRADUATE LAW REVIEW SEVENTH

EDITION

DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS: THE CASE FOR DISPARATE IMPACT Aphrodite Stamboulos

IMAGINATION MADE INACCESSIBLE: UNIVERSAL ORLANDO AND PROOF OF DISABILITY Sarah Nugiel SECULARISM OR DISCRIMINATION IN PUBLIC SCHOOLS: ANALYZING FRANCE'S BAN ON THE HIJAB IN THE CONTEXT OF RELIGIOUS FREEDOM AND SECULARISM Mehak Imran

FOR APPEARANCE'S SAKE: IS YOUR HAIR REALLY YOURS AT WORK ?

Tylese G. Rideout THE UNJUST IMPLICATIONS OF THE 'CAREER OFFENDER SENTENCING ENHANCEMENTS': EXACERBATING MASS INCARCERATION Darin D. Carlin UPDATING HIPAA'S DEFINITION OF PSYCHOTHERAPY NOTES: ENHANCING CONFIDENTIALITY TO ENHANCE PATIENT'S CONFIDENCE Elliott Lehman THE PARADOX OF PROSTITUTION: DO WE HAVE TO CHOOSE BETWEEN CIVIL LIBERTIES AND SOCIETAL WELFARE? Madeline Green LEVELING THE PLAYING FIELD: INFORMATION, PROOF AND LANGUAGE FOR PAY EQUITY Bianca Thakur VOL. 7

Editor-in-Chief

2023-24

FORDHAM UNDERGRADUATE LAW REVIEW FALL 2020 2023-24

Edited by the Undergraduates of Fordham University undergradlawreview.blog.fordham.edu

LETTER FROM THE EDITORS-IN-CHIEF VOL. 7

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March 25, 2025 Dear Reader: It is our honor to introduce Volume VII of the Fordham Undergraduate Law Review (FULR). This Volume embodies the careful scholarship sensitive to enduring and emergent social issues that has characterized this publication since its inception. We are proud of the diligence and commitment our writers have displayed in researching and analyzing thorny legal questions that bear great urgency today.

We hope that their efforts will inspire readers within our student community, as well as the broader academic sphere, to grapple with these issues and explore related avenues of inquiry.

FULR offers a unique outlet for undergraduates to develop a distinctive legal voice in the context of debates bound up with their personal passions and the changes they hope to effect as lawyers. This Volume features Notes on topics ranging from disability accommodations in amusement parks and the disparate impact standard in environmental litigation to hair discrimination in the workplace and bans on Islamic attire in French schools. We see in these Notes a fervor for protecting individual rights and rectifying social injustice that has sustained their authors through countless hours of drafting and revising. The dedication of these writers has raised the caliber of this publication and serves as a sure sign of the distinction they will display in their respective practices.

Our writers have not labored alone. We owe a debt of gratitude to our team of Senior Editors for offering meticulous feedback on drafts and for plumbing the depths of the Bluebook. We also owe many thanks to our Editorial Board members—Amy Herd, Danielle Barber, Eli Salomón, Kathryn MacMillan, Megan Ruzicka, Melina Piatti-Chayan, Nadia Blouin, and Ridhi Hora—for their devotion to and passion for FULR. We would also like to thank the Fordham University faculty, administrative staff, and student organizations that have helped bring this publication to life. Special thanks go to Dr. Robert Hume, our faculty advisor, and the rest of the Advisory Board—Professor Dennis Cappello, Dr. John Davenport, Dr. Melissa Labonte, Dr. Michael Baur, Dr. Orit Avishai, Professor McKenna Nolan, and Professor Mark Conrad—for their assistance in editing this Volume’s Notes.

Please do not hesitate to reach out to the Editorial Board at fulr@fordham.edu to share your comments and questions.

Sincerely, Anthony Vu, Co-Editor-in-Chief, 2023-2024 Olivia Lilley, Co-Editor-in-Chief, Fall 2023 Jack Hayes, Co-Editor-in-Chief, Spring 2024

TABLE OF CONTENTS VOL. 7

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DISPROPORTIONATE EFFECTS ENVRIONEMNTAL HAZARDS: THE CASE FOR DISPARATE IMPACT Aphrodite Stamboulos………………………………………………………1 IMAGINATION MADE INACCESSIBLE: UNIVERSAL ORLANDO & PROOF OF DISABILITY Sarah Nugiel……………………………………………………………….14 SECULARISM OR DISCRIMINATION IN PUBLIC SCHOOLS: ANALYZING FRANCE’S BAN ON THE HIJAB IN THE CONTEXT OF RELIGIOUS FREEDOM AND SECULARISM Mehak Imran………………………………………………………………33 FOR APPEARANCE SAKE: IS YOUR HAIR REALLY YOURS AT WORK? Tylese G. Rideout………………………………………………………….47 THE UNJUST IMPLICATIONS OF THE ‘CAREER OFFENDER SENTENCING ENHANCEMENTS’: EXACERBATING MASS INCARCERATION Darin D. Carlin……………………………………………………………62 UPDATING HIPPA’S DEFINITION OF PSYCHOTHERAPY NOTES: ENHANCING CONFIDENTIALITY TO ENHACE PATIENTS’ CONFIDENCE Elliott Lehman………………………………………………………………75 THE PARADOX OF PROSTITUTION: DO WE HAVE TO CHOOSE BETWEEN CIVIL LIBERTIES AND SOCIETAL WELFARE? Madeline Green……………………………………………………………85 LEVELING THE PLAYING FIELD: INFORMATION, PROOF, AND LANGUAGE FOR PAY EQUITY Bianca Thakur……………………………………………………………102

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FALL 2023 EDITORIAL BOARD ANTHONY VU Co-Editor-in-Chief

OLIVIA LILLEY Co-Editor-in-Chief

AMY HERD Co-Managing Editor

JACK HAYES Co-Managing Editor

RIDHI HORA Executive Notes Editor

ELI SALOMÓN Executive Online Editor

KATHRYN MACMILLIAN Executive Layout Editor

NADIA BLOUIN Business Administrator

MELINA PIATTI-CHAYAN Events Coordinator SPRING 2024 EDITORIAL BOARD JACK HAYES Co-Editor-in-Chief

ANTHONY VU Co-Editor-in-Chief

RIDHI HORA Co-Managing Editor

ELI SALOMÓN Co-Managing Editor

DANIELLE BARBER Executive Notes Editor

ELI SALOMÓN Executive Online Editor

KATHRYN MACMILLIAN Executive Layout Editor

NADIA BLOUIN Business Administrator

MEGAN RUZICKA Events Coordinator

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BUSINESS ADMINISTRATOR ASSISTANTS MEGAN RUZICKA

ANDREW PUZIO

NYLA PATEL

SOPHIA AMOZURRUTIA CAZARES SENIOR EDITORS

ABIGAIL D’ANGELO

DYLAN AYER

SAMANTHA SCOTT

AIDAN HUGHES

FATIMAH WAQAS

SARAH LARREA

BIANCA THAKUR

FRANCISCO BARROS

SOPHIA RICCI

BRIDGET SALTER

ISABELLA RABENI

SOPHIA STANIUAS

CHRISTIAN JOSEPH

JOHN SCHNEIDER

VICTORIA (YI) ZHANG

DANIELLE BARBER

MEHAK IMRAN ZACHARY BADER MOLLY GRAW

STAFF WRITERS ABIGAIL D’ANGELO

JAKE ESPOSITO

SARAH NUGIEL

AIDAN HUGHES

JOHN SCHNEIDER

SEJAL GETCHELL

ALISSA DEMIR

JORGE ALEJANDRO RIVERA

SOPHIA STANIUNAS

ANNA STIESI ANTHONY AMBROSE APHRODITE STAMBOULOS

FRANCISCO BARROS HANNAH BLACK

SOPHIA RICCI MEGAN TOPER MEGAN YERRABELLI

MASTHEAD VOL. 7

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ASHLEY HOLBROOK

HENRY CHANG

MEHAK IMRAN

ASHLEY KIMEU

ILIANA COLIE

NICOLE SIGISMONDI

BERKLEY DORSTEN

JADE GONZALEZ

NYLA PATEL

BIANCA THAKUR

JAKE ESPOSITO

PARKER SORIANO

DANIEL UKANDU

JORJA MULVIHILL

SYDNEY SMITH

DANIELLE BARBER

JULIA LAGRANGE

TYLESE RIDEOUT

DARIN CARLIN

JULIANA FERREIRA

VICTORIA (YI) ZHANG

DYLAN AYER

KATELYN MARTINS VINCENT KAZELLA

ELLIOTT LEHMAN

KATHRYNALEXANDRA ROSSI

WILLIAM NELSON

MADELINE GREEN

ZACHARY BADER

MATTHEW GRUYS

ZUHOOR ALFARDAN

EMILY JAQUEZ ERIN SANFORD FATIMAH WAQAS MEGAN RUZICKA

ROBERT J. HUME, PH.D. Faculty Advisor

HILLARY MANTIS, J.D. Faculty Mentor

MISSION VOL. 7

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The Fordham Undergraduate Law Review (FULR) is a studentrun, scholarly journal at the undergraduate level for Fordham University and the legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as they relate to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues.

These exceptional attorneys of tomorrow are given opportunities for publication and offered admission to pre-law networking events with distinguished Fordham alumni. Learn more about opportunities to join our team by emailing fulr@fordham.edu.

INSTITUTIONAL PARTNERS ROSE HILL DEAN’S OFFICE, Fordham College at Rose Hill PRE-LAW ADVISING OFFICE, Fordham College at Rose Hill & Lincoln Center OFFICE OF STRATEGIC INITIATIVES, Fordham College at Rose Hill OFFICE OF STUDENT INVOLVEMENT, Fordham College at Rose Hill PRE-LAW SOCIETY OF ROSE HILL & LINCOLN CENTER, Fordham College at Rose Hill & Lincoln Center Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this Volume would not have been possible.

The Editorial Board would like to express special gratitude for the careful efforts of the Advisory Board in providing feedback on Notes. Our writers have benefited immensely from the guidance of these accomplished scholars, whose time we know is dearly spent. We appreciate the support they have shown for student-driven legal inquiry outside of the classroom.

DENNIS CAPPELLO, J.D.

JOHN DAVENPORT, PH.D.

MARK CONRAD, J.D.

MCKENNA NOLAN, J.D.

MICHAEL BAUR, PH.D., J.D.

ROBERT HUME, PH.D.

ORIT AVISHAI, PH.D., L.L.M

MELISSA LABONTE, PH.D.,

The views expressed by the authors are not necessarily those of the Editorial Board, the Faculty Advisory Board, or the institutional partners of the Fordham Undergraduate Law Review. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, these parties cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein.

No part of this journal may be reproduced or transmitted in any form or by any means, including by photocopying, recording, or use of an information storage and retrieval system, without prior written permission from FULR. Authors retain all rights to their work.

Fordham Undergraduate Law Review Volume VII, Issues I & II, 2023-24 undergradlawreview.blog.fordham.edu.

VOLUME VII, ISSUE I (Fall 2023)

NOTE

DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS: THE CASE FOR DISPARATE IMPACT Aphrodite Stamboulos* The disparate impact standard, wherein a practice is deemed discriminatory if it causes a discriminatory effect, regardless of intent— unless it could be proven to be of some business necessity—has faced limitations since its inception in Griggs v. Duke Power Co. (1971). One major limitation is that disparate impact claims under Title VI of the Civil Rights Act can only be adjudicated by federal agencies. The Environmental Justice For All Act, which was introduced in the Senate in 2021, would reverse this limitation by codifying the disparate impact standard into Title VI of the Civil Rights Act of 1968. Research has shown that people of color disproportionately face health effects, like cancer and asthma, as a result of environmental hazards, like water and air pollution; disparate impact could be used to address this disproportionate effect. This Note will first examine these health effects as well as the disparate impact standard. Next, this Note will explore environmental suits that have attempted to fight these disproportionate health effects. Then this Note will analyze the disparate impact standard established under the Environmental Justice For All Act and how this Act resolves current weaknesses in the standard. Ultimately, this Note will argue that the disparate impact standard under the Environmental Justice For All Act could be used to tackle cases of environmental health hazards, like water and air pollution, that cause disproportionate negative health effects in communities of color.

*

B.A. Candidate for History with minors in Urban Studies and African and African American Studies, Fordham College at Rose Hill, Class of 2025. It has been an honor to be a staff writer this semester for the Fordham Undergraduate Law Review. Thank you to my editor, family, friends, and FULR, who have given me endless support and advice during the writing process.

DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS [VOL. 7

2 I. II. III. IV. V.

INTRODUCTION…………………………………………………………….2 DISPARATE IMPACT………………………………………………………..3 ENVIRONMENTAL HEALTH EFFECTS ON PEOPLE OF COLOR……………….6 PAST LITIGATION………………………………………………………….8 THE ENVIRONMENTAL JUSTICE FOR ALL ACT…………………………….9 A. Why Disparate Impact Works…………………………...…………11 VI. CONCLUSION……………………………………………………………..12 I.

INTRODUCTION

In Louisiana, there is an eighty-five-mile-long portion of the Mississippi River in Louisiana known as “Cancer Alley” because of the high incidence of cancer, miscarriages, and other health issues that residents near the “Alley” experience.1 Many residents live next to over 150 petrochemical plants and refineries, which are believed to be the root cause of the high cancer rates and disease incidence in the area.2 The population is also majority-Black and poor, with many at or below the poverty line. This phenomenon is not exclusive to this corridor of Louisiana: Across the United States, underprivileged areas of cities composed of predominantly communities of color, including south Philadelphia and southwest Detroit, suffer from higher disease incidence because of their environments. 3 Given the documented racial disparity in environmental health effects, it is worth exploring how the legal system can address these effects.

This Note will first discuss the creation and purpose of disparate impact and how the Supreme Court has interacted with the standard since its inception. Next, this Note will explore how people of color often suffer 1

Merrill Singer, Down Cancer Alley, 25 MEDICAL ANTHROPOLOGY QUARTERLY, 141, 141142 (2011); Tristan Baurick, et. al., Welcome to “Cancer Alley,” Where Toxic Air Is About to Get Worse, PROPUBLICA (Oct. 30, 2019), https://www.propublica.org/article/ welcometo-cancer-alley-where-toxic-air-is-about-to-get-worse.

2 Idna G. Castellón, Cancer Alley and the Fight Against Environmental Racism, 32 VILL. ENVTL. L. J. 15, 15-16 (2021); Singer supra note 1, at 145; Wesley James, Chunrong Jia, and Satish Kedia, Uneven Magnitude of Disparities in Cancer Risks From Air Toxics, 9 INT’L J. ENVTL. RESEARCH & PUB. HEALTH 4365, 4365 (2012).

3 Linda Villarosa, Pollution Is Killing Black Americans. This Community Fought Back, THE NEW YORK TIMES (July 28, 2020), https://www.nytimes.com/2020/07/28/magazine/pollution- philadelphia-blackamericans.html; Alexander Restum, Air Quality in Southwest Detroit, HARVARD MEDICAL SCHOOL PRIMARY HEALTH REVIEW (April 19, 2022), https://info.primarycare.hms.harvard.edu/review/air-quality-southwest-detroit.

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disproportionate adverse health effects because of the environmental hazards present in their communities. This Note will then look at past cases of health effects from environmental hazards and how disparate impact could be or has been used. Finally, this Note will examine the disparate impact standard under the Environmental Justice For All Act and what weaknesses of disparate impact the act resolves. Ultimately, this Note will argue that the disparate impact standard under the Environmental Justice For All Act could be used to tackle cases of environmental health hazards, like water and air pollution, that cause disproportionate negative health effects in communities of color.

II.

DISPARATE IMPACT

Griggs v. Duke Power Co. (1971) involved the energy company Duke Power (“Duke”) in North Carolina. At Duke, there were five divisions employees could work in: labor, coal handling, operations, maintenance, and laboratory testing.4 Despite there being ninety-five Black employees, each of them was restricted to the labor division, which paid the lowest wages, because of discriminatory policies.5 When Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, took effect, Duke Power instituted two new requirements for employees to transfer from labor to any other division: a high school diploma—which was required of all non-labor employees after 1955—and a passing score on two intelligence tests.6 Black employees, essentially unable to transfer out of the labor division because they could not meet these requirements, sued Duke for violating Title VII.7 The District and Fourth Circuit Court ruled in favor of Duke Power, arguing “there was no showing of a racial purpose or invidious intent in the adoption” in the aforementioned requirements and so allowed Duke to retain them. 8 The Supreme Court disagreed.9 According to the Court, neither an intelligence test nor a high school diploma was “shown to bear a 4

Griggs v. Duke Power Co., 401 U.S. 424, 427 (1971).

John D. Skrentny, Ironies of Affirmative Action, 167 (2018); Griggs, 401 U.S. at 427.

6 Griggs, 401 U.S. at 427-428.

7 Id. at 425-427.

8 Id. at 429.

9 Id. at 436.

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DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS [VOL. 7 demonstrable relationship to the successful performance of the jobs for which it was used,” and a history of Black Americans receiving a poor education in North Carolina put them at a disadvantage.10 Here, disparate impact theory was born.11 Under this standard, any practice, regardless of intent, would be considered discriminatory if it had a discriminatory effect, unless a business could prove it to be a business necessity. 12 In Griggs, the requirements imposed by Duke had no correlation to successful job performance, and thus, the requirements were considered discriminatory.

However, the Supreme Court has been inconsistent in its commitment to the standard. In Washington v. Davis (1976), the plaintiffs claimed the verbal skill test required by the D.C. police was discriminatory as it disproportionately excluded Black officers from promotions, violating the due process clause of the Fifth Amendment.13 Ruling against the plaintiffs, the Court stated a racially disproportionate effect was no longer enough to render a practice unconstitutional, the practice also has to have a discriminatory purpose. 14 Similarly, in Guardians Association v. Civil Service Commission (1983), the plaintiffs argued Black and Latino officers were being disproportionately laid off by the police department as a result of an exam.15 This exam, previously ruled to have been discriminatory by a district court, led to Black and Latino officers being “hired later than similarly situated whites” and thus let go first on a “‘last-hired, first-fired’ basis.”16 Although the Court ruled against the plaintiffs, disparate impact was extended to Title VI of the Civil Rights Act of 1964; now programs that received federal funding could be subject to disparate impact.17 The standard, though, was limited again under Wards Cove Packing Co. v. Atonio (1989), where “[r]espondents alleged that a variety of petitioners’ hiring/promotion practices . . . were responsible for the racial stratification” in the company.18 The Court ruled against the respondents and decided that the party bringing accusations of disparate impact must show the business practice is not 10

Id. at 430-431.

Skrentny, supra note 5, at 170.

12 Id. at 159.

13 Wash. v. Davis, 426 U.S. 229, 233-34, 245 (1976).

14 Id. at 239.

15 Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 584-585 (1983).

16 Id. 17 Id. at 584 and 593.

18 Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 647 (1989).

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necessary rather than the accused to “conform[…] with the usual method for allocating persuasion and production burdens” in federal courts.19 As a result, the standard’s burden of proof was shifted. Due to these cases, Congress passed the Civil Rights Act of 1991 a few years later, codifying the original disparate impact theory under Title VII.20 In 2001, the Court further limited the disparate impact theory in Alexander v. Sandoval (2001). Here, non-English-speaking Alabama residents, who were denied the opportunity to acquire a driver’s license as the required tests were in English, sued the Alabama Department of Safety for violating a Department of Justice rule made under section 602 of Title VI of the Civil Rights Act of 1964.21 Under Section 602, federal agencies, like the DOJ, could create rules to enforce Section 601 of the Civil Rights Act.22 Section 601 states any entity that receives federal funds cannot “exclude[…] from participation in or otherwise discriminated against on the ground of race, color, or national origin.”23 In this case, the Alabama DOS received funds from the DOJ, which had a rule that funding recipients could not engage in practices that had a discriminatory effect.24 The majority ruled against the plaintiffs, stating that section 602 of Title VI created no right to private action as there was no evidence Congress intended such a right, but that federal agencies could continue to create and enforce their own disparate impact rules under Title VI.25 The Environmental Protection Agency (EPA), along with many other federal agencies, shortly thereafter created their disparate impact rules. 26 Under the EPA, disparate impact claims are adjudicated as administrative 19

Id. at 651 and 659.

42 U.S.C. § 105 (a)(i). (“An unlawful employment practice based on disparate impact is established under this title only if– a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”)

21 Alexander v. Sandoval, 532 U.S. 275, 278-279 (2001).

22 42 U.S.C. § 602.

23 Id. § 601.

24 Sandoval, 532 U.S. 278.

25 Id. at 284-285 and 288-289.

26 40 C.F.R. § 7.35(b). (“A recipient shall not use criteria or methods of administering its program or activity which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, color, national origin, or sex.”)

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DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS [VOL. 7 cases. The process begins when someone files a complaint, which must occur within 180 days “of the alleged discriminatory acts,” with the EPA.27 Within five days the agency will acknowledge receipt of the complaint and within twenty days of this acknowledgement they will inform the complainant whether or not they will accept the complaint.28 If the complaint is accepted, the EPA will inform the entity the complaint is against and within 180 days inform the entity of their findings as well as any recommended actions “for achieving voluntary compliance.”29 In the event voluntary compliance does not occur, the EPA will hold a hearing with an Administrative Law Judge to decide if the entity will keep its EPA funding.30 III.

ENVIRONMENTAL HEALTH EFFECTS ON PEOPLE OF COLOR

Exposure to environmental hazards can cause a wide range of health issues, from respiratory diseases to cancer. 31 Due to ever-present environmental hazards in their communities, people of color tend to suffer from health issues at a higher rate than their white counterparts.32 Thus this section will demonstrate the existence of disproportionate racial impacts on environmental health effects.

Evidently, many people of color endure the worst of air pollution in America. Despite drops in “[a]mbient fine particulate matter” (pollutants 2.5 micrometers in diameter or smaller) over time, this pollution causes “85,000 to 200,000 excess deaths per year in” America.33 Despite comprising thirtyeight percent of the population, Black, Hispanic, Asian, and other communities of color suffer from a seventy-three-percent to an eight-sevenpercent exposure rate, whereas White Americans—who comprise sixty-twopercent of the population—face a forty-percent exposure rate.34 Additionally, ambient fine particulate matter (PM) “is more devastating to life expectancy 27

Id. § 7.120(b)(2).

Id. § 7.120(d)(1).

29 Id. § 7.115(c)(1).

30 Id. § 7.130(a)(b).

31 Jean D. Brender, et. al., Residential Proximity to Environmental Hazards and Adverse Health Outcomes, 101 AM. J. PUB. HEALTH 37, 37 (2011).

32 Harvey L. White, Race, Class, and Environmental Hazards, ENV’T INJUSTICES, POLITICAL STRUGGLES 61, 63 (1998).

33 Christopher W. Tessum et al., PM2.5 Polluters Disproportionately and Systemically Affect People of Color in the United States, 7 SCIENCE ADVANCES 1, 1 (2021).

34 Id. at 2.

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in U.S. states with both inequitable income distributions and larger minority populations.” 35 Similarly, non-white populations in New York City have higher hospitalization rates than their white counterparts due to the effects of ambient air pollution.36 Furthermore, people of color under sixty-five “were particularly susceptible to the effects of long-term PM2.5 [ambient fine particulate matter] exposure on COVID-19 outcomes, including mortality” compared to their white counterparts.37 Thus, communities of color suffer the most from air pollution and its adverse health effects.

Similar patterns in disproportionate exposure and health effects are present in water pollution. For example, Flint, Michigan, a majority-minority city, underwent a hazardous water crisis between 2014 and 2016 caused by high levels of lead in the water system. 38 Following the crisis, fertility decreased by roughly twelve percent, and birth weights decreased by 150 grams. 39 Meanwhile, in Los Angeles County, “[h]igher percentages of Hispanic, Black, and Asian/Pacific Islander residents . . . were associated with higher [water] contamination risk.”40 Similarly, in Texas and California, Black and Latino residents are at a greater risk of cancer due to the low quality of water where they live.41 Likewise, Legionnaires’ Disease, a respiratory disease, has been increasing in America, and new cases of the disease are about sixty percent higher in Black communities than in white ones.42 This disease is most often caused by a bacteria called Legionella, which makes its 35

Andrew K. Jorgenson et al., Power, Proximity, and Physiology, 15 ENV’T. RES. LETT. 1, 8 (2020).

36 R. Charon Gwyn and George D. Thurston, The Burden of Air Pollution, 109 ENV’T HEALTH PERSPECTIVES 501, 504 (2001).

37 Anne Bozack et al., Long-Term Air Pollution Exposure and COVID-19 Mortality, 205 AMER. J. RESPIRATORY AND CRITICAL CARE MEDICINE 651, 659 (2022).

38 Melissa Denchak, Flint Water Crisis, NRDC (Nov. 8, 2018), https://www.nrdc.org/stories/flint- water-crisis-everything-you-need-know; United States Census Bureau, Flint city, Michigan, UNITED STATES CENSUS BUREAU (July 1, 2022), https://www.census.gov/quickfacts/fact/table/flintcitymichigan/PST045222.

39 Daniel S. Grossman & David J.G. Slusky, The impact of the Flint water crisis on fertility, 56 DEMOGRAPHY 2005, 2005 (2019).

40 Alique G. Berberian et al., Race, Racism, and Drinking Water Contamination Risk From Oil and Gas Wells in Los Angeles County, 2020, AMER. J. PUB. HEALTH 1191, 1191 (2023).

41 Uloma Igara Uche et al., Community-Level Analysis of Drinking Water Data Highlights the Importance of Drinking Water Metrics for the State, Federal Environmental Health Justice Priorities in the United States, 18 LNT’L J. ENVTL. RESEARCH & PUB. HEALTH 1, 16 (2021).

42 Candis M. Hunter et al., Racial Disparities in Incidence of Legionnaires’ Disease and Social Determinants of Health, 137 PUB. HEALTH REPORTS 660, 600-661 (2022).

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DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS [VOL. 7 way into plumbing systems, where it is thereafter inhaled via water droplets.43 Thus, the increase in Legionnaires’ Disease in Black communities is in part due to the lack of access to high-quality water systems, which is a result of poverty in these communities. 44 Evidently, communities of color disproportionately endure and suffer from the effects of water pollution.

IV.

PAST LITIGATION

Before delving into the disparate impact standard under the Environmental Justice For All Act, it is worth examining how previous cases dealing with health effects resulting from environmental hazards with a racial dimension have been litigated.

Bean v. Southwestern Waste Management Corp (1979) is one of the first cases brought regarding the effects of environmental hazards in communities of color.45 Here, the plaintiffs claimed Southwestern Waste Management’s decision to place a sanitation facility in a predominantly Black community “was in part, motivated by racial discrimination” and sought an injunction to revoke the company’s permit.46 The judge did not find discriminatory intent but granted the injunction as the plaintiffs did prove that “opening of the facility will affect the entire nature of the community . . . [including] the health and safety of its inhabitants.”47 Similar cases to Bean are McCastle v. Rollins Envtl. Services of Louisiana, Inc. (1981) and Warren County v. State of North Carolina (1981). In McCastle, the plaintiffs sought monetary damages and “injunctive relief, including closure of the facility” due to the health effects48 that the Black residents near the Rollins plant experienced because of operations, including “‘burning eyes, sore throats, and upset stomachs.’”49 The case was remanded back to the district court, where the injunction was granted.50 In Warren, the 43

CDC, Legionella (Legionnaires’ Disease and Pontiac Fever), CDC (2021), https://www.cdc.gov/legionella/index.html.

44 Hunter, supra note 42, at 666.

45 Luke W. Cole, Environmental Justice Litigation, 21 FORDHAM URB. L. J. 523, 523 (1994).

46 Bean v. Southwestern Waste Management Corp., 482 F. SUPP. 673, 675 (S.D. Tex. 1979).

47 Id. at 677.

48 McCastle v. Rollins Environmental Services, 514 F. SUPP. 936, 938 (M.D. La. 1981).

49 McCastle, 514 F. SUPP. at 938; Barbara L. Allen, Uneasy Alchemy, 41 (2003).

50 McCastle, 514 F. SUPP. at 941; Allen, supra note 49, at 41.

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plaintiffs of a majority Black area tried to prevent the burial of chemicals, polychlorinated biphenyls (PCBs), in a landfill in their county. The plaintiffs argued that, among other claims, “[t]he disposal of the PCBs constitutes a public nuisance,” as it threatens human health.51 The North Carolina District Court disagreed and ruled that PCBs could be disposed of in Warren County. 52 Some years later, in Chester Residents Concerned For Quality Living v. Seif (1996), the plaintiffs alleged Chester’s Black residents bore a disproportionate burden of the pollution and negative health effects that would follow from a waste treatment facility in their community.53 However, because of an error in the plaintiff’s filing, the District Court dismissed their first claim of discriminatory intent without prejudice so that the plaintiffs could file again. Ultimately, the permit for the facility was withdrawn, making the case moot by the time it reached the Supreme Court.54 V.

THE ENVIRONMENTAL JUSTICE FOR ALL ACT

Introduced to the Senate in March of 2021, the Environmental Justice For All Act seeks to address the fact that communities of color disproportionately bear the burden of environmental hazards like “exposure to polluted air, waterways, and landscapes.” 55 Among the act’s strategies to tackle these disparities is codifying the disparate impact standard in its original form into section 601 of Title VI of the Civil Rights Act and restoring a right to private action under section 602 of the same title.56 Thus, this act would resolve a number of limitations that exist under the current EPA disparate impact rule.

51

Warren County v. North Carolina, 528 F. SUPP. 276, 280, 285 (E.D.N.C. 1981); Will Atwater, NC recognized as the birthplace of the environmental justice movement, NC HEALTH NEWS (Aug. 26, 2022), https://www.northcarolinahealthnews.org/2022/08/26/ncrecognized-as-the-birthplace-of- the-environmental-justice-movement/.

52 Warren County, 528 F. SUPP. at 296.

53 Chester Residents Concerned For Quality Living v. Seif, 944 F. SUPP. 413, 415 (E.D. Pa. 1996).

54 Id. at 418; Chester, 524 U.S. at 974; Jimmy White, Environmental Justice, 50 MERCER L. REV. 1155, 1177 (1999).

55 Environmental Justice For All Act, S.872, 117th Cong., § 2(a)(1) (2021).

56 Id. § 4(A) (“disparate impact is established under this title if—(i) an entity subject to this title (referred to in this subsection as a ‘covered entity’) has a program, policy, practice, or activity that causes a disparate impact on the basis of race, color, or national origin and the covered entity fails to demonstrate that the challenged program, policy, practice, or activity

9

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DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS [VOL. 7 Specifically, the Environmental Justice For All Act resolves two of the most major limitations: the right to private action and having to prove intent.

As stated earlier, Sandoval eliminated the right to private action under section 602 of Title VI, leaving the EPA with sole discretion over which disparate impact complaints to pursue. 57 Moreover, if the EPA decides to take on a complaint, they are rarely ever able to stick to their own timelines and so matters are usually resolved years after a complaint has been made.58 For instance, Angelita C. v. California Department of Pesticides Regulation (2011) was an administrative disparate impact case that took the EPA twelve years to resolve.59 The complainants in this case alleged that pesticides being used in a farm nearby a predominantly Latino school disproportionately exposed and, since the pesticide was “linked to lung and kidney damage,” harmed Latino school children.60 Although the EPA did find disparate impact, by the time they did, the pesticide in question was no longer in use as a new, potentially cancer-causing pesticide was in use. 61 The complainants expressed frustration with not only how slowly the matter was resolved but also with the fact that they could not give input for the resolution. 62 The Environmental Justice For All Act would put power back in the hands of private citizens facing disproportionate environmental hazards and their health effects.

It is worth noting that private action under section 602 might no longer be a useful means of relief due to Louisiana v. EPA. In response to disparate impact complaints from residents of Cancer Alley, the EPA began working

is related to and necessary to achieve the nondiscriminatory goal of the program, policy, practice, or activity alleged to have been operated in a discriminatory manner”) and § 5(B) (“Any person aggrieved by the failure to comply with this title, including any regulation promulgated pursuant to this title, may file suit in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy and without regard to the citizenship of the parties”).

57 Alexander v. Sandoval, 532 U.S. 275, 285 (2001).

58 Kirsten Williams, The Impact of Foresight, 59 HOUS. L. REV. 1231, 1243-1244 (2022).

59 Talia Buford, In California, an Unsatisfying Settlement on Pesticide-Spraying, CENTER FOR PUBLIC INTEGRITY (Aug. 11, 2015), https://publicintegrity.org/environment/pollution/environmental -justice-denied/incalifornia-an-unsatisfying-settlement-on-pesticide-spraying/.

60 Id.; Civil Rights Division, Section VII- Proving Discrimination-Disparate Impact, U.S. DEPARTMENT OF JUSTICE, https://www.justice.gov/crt/fcs/T6Manual7#20.

61 Buford, supra note 59.; Off. of Civ. Rights, U.S. Envtl. Protection Agency, 16R-99-R9, INVESTIGATIVE REPORT FOR TITLE VI ADMINISTRATIVE COMPLAINT 5 (2011).

62 Id.

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with the Louisiana EPA to address these complaints. 63 When talks broke down between the two entities in mid-2023, the Louisiana DOJ sued the EPA, claiming that they had no right to enforce their disparate impact rules on the state.64 Even though the EPA dropped its disparate impact investigations into Louisiana and asked the case to be dismissed, it has gone on.65 The judge presiding over the case placed an injunction on the EPA in January 2024, preventing them from exercising their disparate impact rules on Louisiana while the matter is being decided.66 Even if the court presiding over Louisiana v. EPA decides in favor of the plaintiffs, the Environmental Justice For All Act also eliminates the need to prove intent by codifying the disparate impact standard under Section 601 of Title VI. Currently, any disparate impact claims made under Section 601 of Title VI have to prove discriminatory intent and effect because of Guardians. 67 This means that in a successful case under section 601, the plaintiffs would be able to demonstrate a departure “from the usual procedure or that the events leading up to the act.” Needless to say, this is difficult to prove.68 The codification of the disparate impact standard as established in Griggs, nonetheless, would obviously eliminate the limitation associated with having to prove intent under section 601.

A. Why Disparate Impact Works Among the cases discussed earlier, Chester was the only one that attempted to make a disparate impact claim under Title VI of the Civil Rights Act; here though, the plaintiffs’ claim failed because of the restriction on

63

Michael Phillis, EPA retreats on Louisiana investigations that alleged Black people lived amid higher cancer risk, ASSOCIATED PRESS (June 27, 2023), https://apnews.com/article/epa-racism- cancer-justice-black-louisiana4d5d0aacba21b31f24eb92df59ef75fd.

64 Jennifer Hijazi, US Nixes Environmental Racism Probe, Sparking Advocates’ Concern, BLOOMBERG LAW (July 10, 2023), https://news.bloomberglaw.com/environment-andenergy/us -nixes-environmental-racism-probe-sparking-advocates-concern.; Maya Earls, Louisiana Judge Blocks EPA From Enforcing Civil Rights Mandates, BLOOMBERG LAW (Jan. 23, 2024), https://news.bloomberglaw.com/environment-and-energy/louisiana-judgeblocks-epa-from-enforcing-civil-rights-mandates.

65 Earls, supra note 64.

66 Id. 67 Williams, supra note 58, at 1240-1241.

68 Id. at 1243.

11

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DISPROPORTIONATE EFFECTS ENVIRONMENTAL HAZARDS [VOL. 7 disparate impact from Washington, which was applied to Title VI claims in Guardians. 69 Had Chester not needed to prove discriminatory intent alongside discriminatory effect, the case would not have faced an issue with its first claim because the claim would have satisfied the disparate impact standard. Moreover, although Bean, McCastle, and Warren do not allege disproportionate racial health effects, one can also see how they could make such a claim, as the health effects each case discusses would have or did occur in Black-majority communities.

The strength of disparate impact is that the standard under the Environmental Justice For All Act mainly relies upon proving discriminatory effect. This can be proven fairly easily through the statistical comparison of environmental hazards and subsequent diseases in minority communities to their white counterparts.70 From there, relief, like in the form of an injunction against whatever causes the hazard, can be ordered.71 The ease with which disparate impact can be demonstrated under the Environmental Justice For All Act and the relief that can be provided if a claim is proven makes it a valuable standard under the act.

VI.

CONCLUSION

Disparate impact under the Environmental Justice For All Act can be used to address the disproportionate health effects, such as cancer and asthma, that communities of color face as a result of environmental health hazards, such as water and air pollution. This is because the standard relies on discriminatory effect rather than intent, for intent is generally harder to prove.

However, since its inception, the disparate impact has not been consistently applied, as the Supreme Court has altered its use and the elements to prove the standard. A mainstay of the standard, nevertheless, has been a requirement to prove a discriminatory effect, which many studies have proven by documenting the health effects people of color face at a disproportionate rate due to the environmental hazards in their communities.

Furthermore, since the late 1970s, people of color have been using the legal 69

Chester, 944 F. SUPP. at 417; Edmund J. Postawko, Confusion Surrounding Title VI and the Discriminatory Intent Requirement, 27 WASH. U. J. URB. & CONTEMP. L. 391, 396 (1984).

70 See Section III, ENVIRONMENTAL HEALTH EFFECTS ON PEOPLE OF COLOR. 71 40 C.F.R. § 7.175(a)(2).

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system to try to mitigate the health effects they face to varying levels of success. The Environmental Justice For All Act, though, fixes the limitations of the disparate impact standard and makes it useful in environmental litigation aiming to tackle disproportionate health effects resulting from environmental hazards. At this time, given an executive order President Trump signed which seeks to end disparate impact,72 as well as the Supreme Court’s recent stance against race-based programs,73 it is unlikely that the Environmental Justice For All Act will become law and if it does, it would be unlikely to survive a challenge in the Supreme Court. ***

72

Exec. Order No. 14281, 90 C.F.R. 80, 17537-17539.

Pamela King, Supreme Court ruling entangles Biden’s environmental justice efforts, E&E NEWS by POLITICO (June 29, 2023), https://www.eenews.net/articles/supreme-courtruling-entangles-bidens-environmental-justiceefforts/#:~:text=Supreme%20Court%20ruling%20entangles%20Biden’s%20environmental %20justice,could%20complicate%20pollution%20cleanup%20in%20Black%20communiti es.

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IMAGINATION MADE INACCESSIBLE: UNIVERSAL ORLANDO & PROOF OF DISABILITY Sarah Nugiel* Whether a disabled person can enjoy goods or services from a business depends on the accommodations that business has to offer. Since July 2023, the Universal Orlando Resort in Orlando, Florida has used a system where disabled guests who cannot wait in a traditional queue for rides must apply for an Individual Accessibility Card. The entity in charge of the card—the International Board of Credentialing and Continuing Education Standards (IBCCES)—requires documented proof of disability written by the applicant’s physician. Additionally, the form that IBCCES uses provides few open-ended ways for applicants to describe their needs other than this statement. This system not only saddles applicants with the burden of proving that they are disabled, but also limits how applicant’s needs can be expressed.

Though this is one high-profile instance of businesses pushing back against accessibility regulations, this is not the first time a business has attempted this. This Note will analyze the clash between businesses and the laws pertaining to the disability rights movement. Through the lens of the Americans with Disabilities Act’s (ADA’s) objectives, this Note will ultimately argue that Universal Orlando’s practices with IBCCES tend to screen out individuals with disabilities that do not fit with IBCCES’ prompts, and thus violate the ADA.

*

B.A. Candidate for Political Science with a minor in Disability Studies, Fordham College at Rose Hill, Class of 2027. Being a part of the Fordham Undergraduate Law Review has meant so much to me. I’m thankful for my Senior Editors Sophia Ricci and Sophia Staniunas, and to all of my friends at FULR. Tremendous thanks also go to my friends and family, who have always supported my passions. I couldn’t have done this without any of you.

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I. INTRODUCTION…………………………………………………………...15 II. SOCIAL INTENTIONS: THE LEGAL PERSPECTIVE………………………….17 A. The ADA and Sutton v. United Airlines…………………………...17 B. The ADA Amendments Act of 2008……………………………….. 19 III. RIGHTS AND RESTRICTIONS: THE BUSINESS’ PERSPECTIVE………...…… 20 A. Fear of Falsification………………………………….……………20 B. Existing Standards and Equity……………………………………. 22 C. Legal Recognition of Business Difficulties: A.L. v. Walt Disney…23 D. Applications to Universal Orlando………………………………..25 IV. RESTRICTIONS AND ISSUES: UNIVERSAL AND IBCCES…………………..26 A. The ADA on Discrimination…………....…….……………………..26 B. The IBCCES Form………………………………...……...………..26 C. Universal and IBCCES in Conjunction.…………………………...28 D. The Failure to Accommodate…………………………...………… 31 V. CONCLUSION….………………………………………………………….32 I.

INTRODUCTION

In July 2023, the Universal Orlando Resort in Orlando, Florida partnered with the International Board of Credentialing and Continuing Education Standards (IBCCES) to change how accommodations are granted to disabled guests. 1 Individuals whose disabilities prevent them from waiting in traditional queue settings may secure an Attractions Assistance Pass (AAP), though a wait time is still imposed on those guests.2 However, under the new system, individuals must first register with IBCCES for an Individual Accessibility Card (IAC), which then allows for them to be considered for the AAP.3 This new condition, meant to streamline the process of requesting accommodations, requires that applicants submit an application to IBCCES at least forty-eight hours in advance of their arrival that includes documented

1

Jacob Passy, Some Travelers Abused Disability Accommodations. Now Comes the Crackdown., THE WALL STREET JOURNAL, August 23, 2023 (last visited Sep 10, 2023).

2 Passy, supra note 1; Universal Orlando: Complete Guide to Attraction Assistance for Special-Needs Families, ORLANDO INFORMER (2023), https://orlandoinformer.com/universal/guest-assistance-passes.

3 Id.

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proof of disability from a medical office, government entity, or counselor.4 The park claims to provide additional accommodations and accessibility measures that do not require this form, such as room in the traditional queues for some mobility aids and quiet rooms.5 By creating more steps in the planning process before visiting the park, this rule denies disabled individuals the pleasure of spontaneous day trips.

More concerning, however, is the fact that this process has Universal and IBCCES controlling the means by which disabled applicants communicate their needs to a concerning degree. This changes how accessible the park is to individuals whose disabilities cannot be expressed within the form’s options, or who cannot obtain the documentation necessary to apply at all.

Amusement parks such as Universal are just one of many types of public accommodation compelled under the ADA to provide accessible experiences to the general public.6 Though current discussions of disability law rightfully touch on many issues such as employment, parking access, and education, examining a broad range of public accommodations, including amusement parks, helps ensure that individuals of all abilities have a chance to enjoy equal and full participation in society. Since amusement parks in particular are often marketed towards young children and families, many of their accessibility policies have a direct impact on disabled children and their sense of belonging in society.7 However, most importantly for the purposes of this Note, Universal’s accommodation system in particular exemplifies a growing trend in the implementation of disability law across all types of public accommodations: making accessibility accommodations conditional on verification or ‘proof’ of one’s disability. The practice of placing the burden of proof on a disabled individual is not new, but it is not irrational to question how accessible policies like these actually are.8

4

Passy, supra note 1; IBCCES, IBCCES Accessibility Card, INTERNATIONAL BOARD OF CREDENTIALING AND CONTINUING EDUCATION STANDARDS (2023), https://accessibilitycard.org/.

5 Accessibility Information, UNIVERSAL STUDIOS, https://www.universalorlando.com/web/en/us/plan-your-visit/accessibility-information.

6 Americans with Disabilities Act, 42 U.S.C. § 12181 (7) (I) [hereinafter ADA].

7 See Doron Dorfman, [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, 10 U.C. IRVINE L. REV. 557, 584 (2020).

8 ADA, 42 U.S.C. § 12101 (5) (“[I]ndividuals with disabilities continually encounter various forms of discrimination, including…exclusionary qualification standards and criteria…”).

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This Note will highlight the clash between laws that push to respect the word of disabled individuals and business owners who look to protect their resources and rights, including an analysis of legal attempts to reconcile these two. With this context in mind, this Note will argue that procedures that restrict applicants’ communication of their needs to specific boxes, such as Universal Orlando’s usage of IBCCES, leave room for unpredictable or unrepresented disabilities to go unaccommodated. Thus, Universal’s IBCCES-AAP system violates the ADA by presenting a failure to ensure that disabled individuals are able to “fully and equally” enjoy the services of the amusement park.9 II.

SOCIAL INTENTIONS: THE LEGAL PERSPECTIVE

A. The ADA and Sutton v. United Airlines The ADA defines disability as the presence, record, or perception of an impairment that “substantially limits one or more major life activities of such individual.”10 First passed in 1990, the Act aimed to recognize the rights of disabled individuals in conjunction with the Rehabilitation Act of 1973.11 The Rehabilitation Act expanded federal fiscal responsibilities for disability research and rehabilitation, while also prohibiting employment discrimination in federal contractors only.12 The ADA’s provisions further protected the rights of disabled employees by requiring all U.S. businesses to provide accommodations for their employees and customers.13 Nine years later, the ruling in Sutton v. United Airlines (1999) showed flaws in how courts regarded this definition of disability in practice. Sutton’s plaintiffs were twins who were denied employment by United Airlines because their uncorrected eyesight fell below company requirements.14 The twins brought suit against the airline, arguing that they were disabled under 9

ADA, 42 U.S.C. § 12182 (2)(A)(ii); It is important to clarify that this Note does not argue for the total ignorance of business owners’ needs. Rather, this Note urges for more attention directed towards the disability rights movement, and addresses the role of businesses in making this happen.

10 ADA, 42 U.S.C. § 12102(1).

11 The Rehabilitation Act of 1973, 29 U.S.C. § 701.

12 29 U.S.C. § 701.

13 ADA, 42 U.S.C. § 12101.

14 See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).

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the ADA and had been subjected to discrimination. 15 In classifying themselves as disabled, they argued that when determining what qualifies as a disability, corrective measures should not be considered.16 In essence, it did not matter that their condition could be ameliorated, since its effects still existed in some capacity.17 However, the Court did not agree that the Sutton twins were disabled at all. Writing for the majority, Justice Sandra Day O’Connor asserted that disabilities had be assessed with corrective measures in mind. First, she pointed out that even though no agency was allowed to deviate from the explicit ADA, the Equal Employment Opportunity Commission (EEOC) had released supplemental definitions of the ADA’s terms. Among these, the EEOC’s definition of “substantially limits” stated that a person must have an impairment that rendered them “[u]nable to perform a major life activity that the average person in the general population can perform” in order to fully qualify as disabled.18 Since ameliorative effects could render a person “able” to perform these actions, O’Connor argued that not considering them would be a failure to assess the disability’s actual effect on “major life activit[ies].”19 She stated that this was what was intended by the use of present tense in the ADA’s definition of “disability.”20 O’Connor also argued that the ADA required individualized inquiry of a person’s disability needs, meaning that the presence of their disability could not be assumed to pose a difficulty at face value.21 Finally, O’Connor cited the ADA’s (now removed) estimation that roughly 43 million Americans were disabled and traced it back to a study performed by the National Council on Disability, who stated that 37.3 million Americans were disabled even with corrective measures.22 When mitigating measures were removed from consideration, the Council’s number shot up to 160 million.23 She argued that 15

Id. Id. at 477.

17 Id. 18 Id. at 480.

19 Id. at 481.

20 Id. at 482 (“Because the phrase ‘substantially limits’ appears in the Act in the present indicative verb form, we think the language is properly read as requiring that a person be presently—not potentially or hypothetically—substantially limited in order to demonstrate a disability.”).

21 Id. at 483.

22 Americans with Disabilities Act, S. 933, 101st Cong. § (2)(a)(1) (1990).

23 Sutton, 527 U.S. 471 at 483.

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Congress’ intention was to only protect those who were still unable to perform daily tasks, even with mitigating measures in place.24 Concluding, O’Connor wrote that the ADA only offered individuals protection if their ameliorated disability presented a difficulty in major life activities. If the effects of a person’s condition or impairment could be controlled, then it did not qualify as a disability. Since the Sutton twins were able to correct their visual impairment, it did not constitute a disability under this new standard.25 In fact, even if United Airlines had perceived the twins to be disabled, O’Connor argued that the only life activity that was being limited was the specific job of “global airline pilot.”26 Therefore, the Sutton twins did not demonstrate the presence, record, or perception of an impairment that limited major life activities, as required by the ADA.27 This restrictive ruling upheld a standard that required not only medical proof of disability, but also evidence of continuous difficulty, even with ameliorative measures present. Sutton was a precedent by which individuals with episodic disabilities, disabilities with correctable symptoms, and disabilities that could not be easily perceived ran a risk of not being legally recognized as such.

B. The ADA Amendments Act of 2008 Sutton’s legacy was not long-lived. Nine years after its decision, Congress stated in the ADA Amendments Act (ADAAA) (2008) that the ruling had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.”28 In other words, Congress rejects Sutton’s requirement to consider mitigating measures in disability accommodation eligibility. 29 The Act specifies for future cases that a disability could be considered “substantially limiting” even if amelioration was possible to a degree.30 Essentially, even if an individual’s disability does not present difficulties in every moment of their life, its existence alone still qualifies that person as disabled.

24

Id. Id. at 476.

26 Id. at 477.

27 ADA, 42 U.S.C. § 12102(1).

28 ADA Amendments Act of 2008 (ADAAA), 42 U.S.C. § 12101(a)(4).

29 Id. § 12101(b)(2).

30 Id. § 12102(4).

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Broadening the standard even further, the ADAAA also specifies that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and…the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”31 Essentially, the ADAAA explicitly focuses future cases on the social and physical barriers that exist around one’s disabilities, rather than the nature of the disabilities themselves.

This means that skepticism is meant to go towards the businesses responsible for accommodating disabled individuals rather than the disabled individuals themselves.

The ADAAA’s repudiation of Sutton confirms that the ADA was not meant to be read solely for its explicit textual meaning, and sets a standard which considers disabilities even if they can be ameliorated in some way.32 The Act allows disabilities with correctable symptoms or sporadic effects, including invisible disabilities—which are often only “obvious” to the person who is disabled—to be considered.33 Though public perception of disability tends to lose this sentiment, the ADA has clear intentions as a civil rights law meant to protect individuals before questioning them.34 III.

RIGHTS AND RESTRICTIONS: THE BUSINESS’ PERSPECTIVE

A. Fear of Falsification Universal Orlando’s policies are part of a larger issue that necessitates a change in broader ADA interpretation. The ADA and its amendments have been a target of skepticism that harms the disabled community. As the ADA ages, “malingerers”—nondisabled people demanding accommodations solely to abuse them—remain a constant obstacle to businesses.35 Business owners increasingly fear the falsification of disability as definitions and 31

Id. § 12101(b)(5).

See Mark C. Weber, Unreasonable Accommodation and Due Hardship, 62 FLA. L. REV. 1119, 1125-1127.

33 See Deirdre M. Smith, Who Says You’re Disabled? The Role of Medical Evidence in the ADA Definition of Disability, 82 TUL. L. REV. 1, 26 (2007).

34 See Dorfman, supra note 7, at 577, 561.

35 Smith, supra note 33, at 43; see also Erica Worth Harris, Controlled Impairments Under the Americans with Disabilities Act: A Search for the Meaning of “Disability”; 73 WASH. L. REV. 575, 600 (1998).

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public awareness of disability evolve.36 Widespread reports of “ADA fraud” have exposed the careless behavior of malingerers as a large and serious problem—while also creating a growing cultural suspicion and dismissal of ADA litigation as a whole. 37 This is because fear of malingerers often develops into an over-generalized suspicion toward anyone seeking protection under the ADA—even those whom the protection is designed for.38 Despite malingerers being the central problem, business owners’ presumptive opinions and measures against them have been harmful to the disabled community. This especially true for those whose disabilities are not apparent to the naked eye. Two different studies have found that oftentimes, the general public perceives disabled people receiving accommodations differently depending on how visible their disability is.39 In the first of these, public reactions to disabled individuals parking in handicapped parking spots was measured through an experiment.40 The results showed that observers were not concerned with the number of parking spots available—only with how “deserving” the individual using them appeared.41 This social instinct to measure “deservingness” is present in how businesses approach distributing their accommodations—in other words, business owners are anxious to see that their resources are going to the right people. 42 However, many possibilities exist in which a person needs accommodations for reasons that can limit their life functions but cannot always be perceived by other people.

Chronic pain, sensory disabilities, and some cognitive disabilities are just a few examples. In these cases, disabled people often find themselves fearing that despite their status as legitimately-disabled, their appeals for accommodations can be discredited if their level of “deservingness” is taken at face-value.43

36

Katie Eyer, Claiming Disability, 101 BOSTON UNIVERSITY LAW REVIEW 547, 603 (2021).

37 Eric Fram, QUEUE & ADA: A.L. V. WALT DISNEY PARKS & RESORTS AND HOW THE FEAR OF FRAUD MAY FUNDAMENTALLY ALTER THE ADA, 31 SOUTHERN CALIFORNIA INTERDISCIPLINARY LAW JOURNAL 591, 591-592 (2022).

38 Id. 39 Dorfman, supra note 7, at 587.

40 Id. at 577.

41 Id. at 578.

42 Id. 43 Id.

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Malingerers have long been a concern at Universal Orlando, who fear that guests will abuse the AAP for the sake of skipping long lines. 44 While Universal Orlando guests who use the AAP (under both the previous and the current system) do get to avoid a traditional queue setting, a wait time is still imposed on them, only after which they may enter the ride.45 This means that even a guest attempting to skip a line by misusing the AAP would not be successful. Nonetheless, Universal Orlando is still said to have locked their AAP behind the IAC process for the sake of “cut[ting] off avenues schemers have used.” 46 Guests are not a monolith, either, and not all of them are morally above finding workarounds in existing systems. Disney parks were forced to overhaul their Guest Access Card (GAC) system roughly a decade ago following reports of malingerers hiring disabled individuals to attend the park with them—an indicator of a broader, growing trend of accommodation abuse dating back to at least 2013. 47 It is admittedly reasonable that the broader amusement park industry feels pressure to respond in some way. The issue of malingerers is undoubtedly a legitimate source of pressure for amusement parks such as Universal Orlando, and though there is room to critique specific approaches to the issue, it is still important to recognize validity in the fear itself.

B. Existing Standards and Equity Even when individuals demonstrate a clear need for accommodations, many businesses hesitate to act.48 The text of the ADA provides business owners some autonomy by only enforcing those accommodations that are readily achievable and not fundamentally altering the nature of the service at hand.49 The readily achievable standard states that businesses are only required to provide accommodations that are “easily accomplishable and able to be carried out without much difficulty or expense.”50 A significant difficulty 44

Passy, supra note 1.

ORLANDO INFORMER, supra note 2.

46 Universal Orlando Resort, Guide for Rider Safety and Accessibility, 1-2 (2023); Passy, supra note 1.

47 Passy, supra note 1; Fram, supra note 37, at 591-592.

48 See Dorfman, supra note 7, at 561.

49 ADA, 42 U.S.C. § 12181 (9); § 12182 (2)(A)(ii).

50 Id. § 12181 (9).

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would be if a requested accommodation is found to “fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations” that a business provides.51 Whether businesses are exempt from accommodations by either of these two tests is decided on a case-bycase basis.52 Each case considers the financial burden on the business, the type of business that is operating, and the importance of the accommodation itself to the individuals who would need it. 53 This standard removes unrealistic and potentially expensive expectations off of businesses, especially smaller ones.

C. Legal Recognition of Business Difficulties: A.L. v. Walt Disney A recent decision at the circuit court level has given credence to the business difficulties facing amusement parks in particular, presenting interesting considerations when considering the standard of fundamental alteration. The 2018 decision in A.L. v. Walt Disney Parks and Resorts in the Eleventh Circuit presents an instance where the magnitude of potential accommodation abuse plays into whether or not a court finds fundamental alteration to be true. 54 Plaintiff A.L, an autistic man who depended on routines, brought suit after Disney’s transition from their GAC system to their Disability Access Service (DAS) system prevented him from enjoying park attractions the same way that he could prior to the change.55 The plaintiff’s parents alleged that A.L’s equal enjoyment of the amusement park was dependent on him being able to access a pre-made list of rides in order.56 Disney’s DAS system at the time enforced wait times on its users, albeit no longer that 10-15 minutes in most cases.57 However, A.L, as well as many other plaintiffs under similar circumstances, argued that their disabilities prevented them from waiting this duration without substantially changing

51

Id. § 12182 (2)(A)(ii).

Id. § 12181 (9); § 12182 (2)(A)(ii).

53 Id. 54 A.L. v. Walt Disney Parks & Resorts US, Inc., 469 F. SUPP. 3d 1280, 1298; Fram, supra note 37, at 601.

55 A.L. v. Walt Disney, 469 F. SUPP. 3d 1280. at 1283.

56 Id. 57 Id. at 1274.

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how they enjoyed the parks, ultimately seeking injunctive relief under Title III of the ADA.58 The Florida Middle District Court ultimately dismissed this case with partial affirmations, reversals, vacations, and remandings, providing a layered source of guidance for how district courts should approach similar cases in the future.59 Firstly, the grant of summary judgement awarded to Disney through the previous district court trial was reversed, based on the recognition that developmental disabilities and their resulting needed accommodations differed on a case-by-case basis.60 Therefore, no one ruling could fully encompass which accommodations were “necessary” in these guests’ enjoyment of the amusement park, and the district courts would have to weigh the facts of each case accordingly.61 However, while explaining the reasoning behind the case’s dismissal, Justice Frank M. Hull acknowledged Disney’s argument that reverting back to the GAC system or any similar system that struck wait times would be “...the functional equivalent of Disney’s previous system, which Disney avers was discontinued due to fraud and abuse.”62 The widespread abuse that may result from Disney providing accommodations that would strike wait times for these disabled guests was framed as a consideration that the district court must content with in future lawsuits. Essentially, as the district courts faced future lawsuits, each guest’s level of “necessity” behind the accommodations would have to be weighed against the possibility of widespread abuse and the resulting fundamental alteration before deciding whether injunctive relief can be awarded.63 Title III of the ADA never mentions fraud in any capacity as a potential defense against accommodation.64 However, though this case never reached the federal level, A.L. v. Walt Disney Parks and Resorts has laid some framework for levels of possible fraud to be considered under findings of fundamental alteration. 65 Though malingerers and ADA fraud remain a substantive and widely-reported issue, this case serves as a notable move

58

Id. at 1273.

Id. at 1300.

60 Id. at 1298.

61 Id. 62 Id. 63 Id. 64 Fram, supra note 37, at 601.

65 Id. at 592.

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against the flexible, socially-motivated text of the ADA and the ADA Amendments Act. D. Application to Universal Orlando In the case of Universal Orlando, supporters of the IBCCES accommodation system face a difficult challenge in proving fundamental alteration: proving that without this system of restriction, the resulting accommodation provision would be hindering to its theme park operations to an irreparable level without a level of necessity to justify it.66 The park had existed as a successful amusement park for 24 years without the IBCCES system. 67 An argument exists that if there is a possibility of fundamental alteration, Universal would not have been operable as a standard amusement park during that time period. In response to this line of argument alone, it is still admittedly understandable that Universal is taking heavy handed measures against malingerers. It would be Universal’s prerogative to demonstrate that the resulting ADA fraud without the IBCCES system specific to their park meets the standard of fundamental alteration.68 However, the core issue that Universal and many other theme parks are responding to cannot be discredited in of itself.

However, there is still room to critique the specific solution being used in the case of Universal and IBCCES. For starters, there is a very high level of necessity behind the accommodations in question. Organized queues are considered an essential part of Universal’s operation, and amusement parks typically need some type of queue system to operate.69 However, this means that disabled guests who cannot wait in a Universal’s queue system and have been denied an accommodating work around would find it very difficult to enjoy the amusement park at all. Furthermore, in the act of filtering out malingerers, the IBCCES system creates substantial risk of also filtering out legitimately-disabled applicants, as the next section will discuss in detail.

66

Passy, supra note 1.

History, UNIVERSAL DESTINATIONS & EXPERIENCES (2024), https://corporate.universaldestinationsandexperiences.com/history/.

68 See Fram, supra note 37, at 601 (“Rather, it was the likely unmanageable magnitude of requests for GAC-like accommodations, as demonstrated by the history of the GAC, that led the court not to require such accommodations.”).

69 Universal Orlando Resort, supra note 46, at 2 (“The queue experience at the majority of our attractions is an integral part of telling the story of the overall attraction experience.”).

67

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RESTRICTIONS AND ISSUES: UNIVERSAL AND IBCCES

A. The ADA on Discrimination Title III of the Americans with Disabilities Act states that a businesses’ practices are discriminatory if they exhibit a “failure to make reasonable modifications in policies, practices, or procedures” that allow disabled individuals to enjoy goods and services.70 Furthermore, the statute prohibits “the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods [and] services…unless such criteria can be shown to be necessary for the provision of the goods [and] services…” 71 When evaluated, if a business’ practice is not found to be providing reasonable accommodation, or found to be screening out disabled individuals from full participation in the service, then their practices are discriminatory.

The latter of the clauses listed above can aid us in breaking down Universal & IBCCES’ practices. In the case of disabled individuals trying to access the services in Universal Orlando, whether or not they are “fully and equally enjoying” the parks to the fullest extent depends heavily on whether or not they are able to access the accommodations they need.72 The following sections will discuss numerous difficulties that arise for disabled individuals that arise in the process of applying for accommodations.

B. The IBCCES Form IBCCES’ application form, despite their intended goal of promoting accessibility, does not allow applicants the ability to fully express what they need, or the level of necessity behind the accommodations that they request.

This means that the amusement park receiving information from them is not equipped with enough of it; even if they are able to offer proper 70

ADA, 42 U.S.C. § 12182 (2)(A)(ii).

Id. § 12182 (2)(A)(i).

72 Id.; see also Dorfman, supra note 7, at 584 (“There’s just no way to describe seeing your child have genuine fun . . . their face light up . . . and feel like just one of the kids . . . when you so often watch them on the sidelines . . . watching everyone else ride bikes and play baseball in the cul de sac. Disneyland is one of the absolute few places where we can all . . . every one of us . . . participate in the same way.”).

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accommodations, they may not be fully aware that the need for them exists in the first place, which could prompt a rejection.

The form requires applicants to paraphrase their needs by selecting what best matches them out of a drop-down list of descriptions, such as “Sensitivity to noise,” “[I]ndividual is not able to stand for a significant amount of time,” and “Special dietary needs: may require access to specialized menus or food options.”73 Though applicants are able to select multiple of these options, they are not able to enter anything out of this prompt in an open-ended format. 74 This prevents further specification or alternate responses entered by the applicant themselves, which means that important information could be entirely omitted from the application. For example, applicants checking off that they have a dietary restrictions and may need different menus do not have a place to specify themselves what exactly that restriction is or how strictly it must be observed. Because of this, applicants who cannot eat certain foods for religious reasons, applicants who are vegetarian or vegan, and applicants with various types and degrees of food allergies are all sorted into the same category. Distinction would be very important in this case and would undeniably affect what kinds of menus are distributed as a result. However, the structure of the form itself does not allow this level of specificity, creating a crucial gap in information.75 Applicants are then required to submit a recent photograph of themselves and a statement from an “education, healthcare, or governmental provider.”76 In a dropdown prompt to describe the title of the professional, the only options are “Physician” and “Therapist.”77 This statement is the only openended method to describe the applicant’s needs on the form, meaning that disabled individuals must rely on their physicians to provide levels of specificity that they are not able to. This is despite the fact that in many cases, such as the example of dietary restrictions used before, the applicants themselves are the best possible people to attest to their own experiences and comfort levels in the different facets of the amusement park experience.

73

Welcome to IBCCES Accessibility Card Registration, CERTIFICATION CENTER - LOGIN, https://apps.ibcces.org/cert/464406.

74 Id. 75 Id. 76 Id. 77 Id.

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This detail removes important autonomy from the disabled individual themselves. Relying on a physician exclusively for the entire verification screens out disabled individuals who cannot afford a physician who can accurately testify to their impairments, or even afford a physician at all.78 Despite this, the only portions of the form that provide any type of openended response—other than the applicant’s identification—is that one that can only be filled out by a physician.79 If a case arises in which a person’s specific needs cannot be expressed through the form’s options, either the burden to do so falls on the physician, or else the individual is at risk of not having their needs met at all. In other words, the difficulties experienced firsthand by the applicant are not relevant unless the physician involved in their application says so.80 The physician in this case is not only left alone to state the applicant’s needs—they’re also a crucial part of the planning process for the accommodations themselves. The application’s prompt for submitting documentation requests that the physician writing the statement “indicat[es] any special accommodations or supports needed.”81 The physician, despite likely not being an expert in the services an amusement park could offer, is the only medium by which an applicant could make specific requests. 82 Though it’s unclear how exactly IBCCES and/or the amusement park approach the physician’s statements, this leaves the physician with no choice but to be broad with their statements, or unknowingly list specifics that cannot be met. Both of these cases present a surplus of information that makes the entire process difficult to approach properly. From the very beginning of this application process, it’s clear that there are several pitfalls through which a disabled applicant’s needs can be neglected or misrepresented.

C. Universal and IBCCES in Conjunction Even after a disabled guest receives their IAC from IBCCES, the appealing process is far from over. Because this IBCCES process is used by

78

Katherine A. Macfarlane, Disability Without Documentation, 90 FORDHAM LAW REVIEW 60, 88 (2021).

79 Welcome to IBCCES Accessibility Card Registration, supra note 73.

80 See Macfarlane, supra note 78, at 68.

81 Id. 82 Id. at 88.

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so many amusement parks, the form itself is not tailored to specific needs that the amusement park can meet. Rather, it is up to the participating amusement park—in this case, Universal Orlando—to accommodate the guest based on the information that IBCCES has given them.83 Universal’s method of doing this is taking the information presented in an applicant’s approved IAC and reaching out regarding whether they must receive an AAP.84 IBCCES’ site contains a disclaimer that outlines this transfer of responsibility, stating, “The IAC does NOT guarantee you any benefits or accommodations. All accommodations afforded to individuals with a need are at the sole discretion of the attraction.” 85 Even after an applicant’s sensitive information is submitted and their card obtained, the question of whether they’ll be properly accommodated isn’t answered—it’s only transferred to yet another decisionmaking body.

Though this stage of the application provides applicants with more opportunities to specify their needs, it is only after those applicants pass through one round of approval for the IAC. It is also important to remember that this contact initiated by Universal is part of a second round of approval for the AAP, and that Universal only starts with the information that could be expressed on the IBCCES form. Already, Universal Orlando is working with very limited information provided through the IBCCES application, since there are very few open-ended options for disabled applicants to express their needs.86 Additionally, since Universal is applying the very broad IBCCES form for a very specified purpose—accommodating those who specifically cannot wait in queue systems—a fully filled-out application would send Universal a surplus of information they may not need and present even more difficulties.87 Operational challenges faced by employees having to acquaint themselves with the system change have only exacerbated the challenges already faced by applicants.88 One particular issue arises when applicants who use various mobility aids are considered. Universal states on their website that guests who use mobility 83

IBCCES, IBCCES Accessibility Card, INTERNATIONAL BOARD OF CREDENTIALING AND CONTINUING EDUCATION STANDARDS (2023), https://accessibilitycard.org/.

84 Accessibility Information, UNIVERSAL STUDIOS, https://www.universalorlando.com/web/en/us/plan-your-visit/accessibility-information.

85 Id. 86 Welcome to IBCCES Accessibility Card Registration, supra note 73.

87 Id. 88 Passy, supra note 1.

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aids do not need to apply, since all of the queue environments in the park are architecturally accessible according to ADA standards.89 However, a fullyfilled out IBCCES application would encompass all of an applicant’s needs, including mobility difficulties, even though Universal does not require this information.90 Universal must then sort through this information themselves in order to separate what requires an AAP from what they can already accommodate.91 Given the limited information that IBCCES provides, this system could have negative effects physically-disabled applicants with needs beyond architectural accessibility. They are at risk of having their applications ignored or rejected by Universal, on the basis of the park’s compliance with the ADA’s accessibility standards. Since the IBCCES application’s drop-down menu categorizes mobility aid users in the same few categories with little room to go into specifics, Universal receives very little indication that there is a need for further accommodations—even if the applicant does need them.

An example case of this would be a hypothetical park guest who depends on a motorized wheelchair or an ECV (Electric Convenience Vehicle).

Universal Orlando’s queue environments are wheelchair accessible, but most of them cannot accommodate ECV’s. 92 For this reason, someone who depends on an ECV may prefer to skip the queue environment, rather than attempt to transfer onto a non-electric wheelchair. While booking their trip, this guest would check off the option for a mobility aid, “Wheelchair access or options required,” on the IBCCES form.93 However, this is the same option that someone using a non-electric wheelchair would have to select, given that it’s the only option for any type of mobility aid.94 Specification on the type of wheelchair needed is even further limited by the lack of open-ended typing spaces for the guest to use themselves. 95 Placing both electric and nonelectric wheelchair users in the same category could pose issues for Universal Orlando, and could even lead to ECV users being denied Universal’s AAP, since they are automatically sorted into the same category as non-electric 89

Accessibility Information, UNIVERSAL STUDIOS, https://www.universalorlando.com/web/en/us/plan-your-visit/accessibility-information.

90 Id. 91 Id. 92 Id. 93 Welcome to IBCCES Accessibility Card Registration, supra note 73.

94 Id. 95 Id.

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wheelchair users. A more practical and careful alternative would not place both types of mobility users in this same category for Universal Orlando to sort out themselves after the fact. Instead, the applicant would be able to specify themselves that they depend on an electric wheelchair.

D. The Failure to Accommodate Each of the individual issues present in Universal Orlando’s IBCCES process contributes to an overall failure to make the reasonable modifications necessary for disabled guests to equally access the parks. IBCCES’ application restricts the means by which individuals with more specific needs can advocate for themselves. The only way an applicant can ensure their needs are accurately represented is through a physician; a piece of secondhand testimony could make the difference between proper accommodation and a lack thereof. 96 Additionally, Universal Orlando’s system uses an extremely-broad form for a very specific purpose, creating a process that’s impractical at best, detrimental and misrepresentative at worst.

For all public accommodations, including amusement parks, the ADA prohibits “the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods [and] services…unless such criteria can be shown to be necessary for the provision of the goods [and] services…”97 The IBCCES form in itself uses restrictive language and options. This could have the effect of screening out individuals who cannot express the presence of their disability or needs, especially by causing discouragement or fear of not being believed. 98 Requiring a physician could also screen out individuals who cannot acquire a physician trained to articulate their needs, or at all.99 Additionally, attempting to apply the IBCCES form (which covers many types of accommodations) to Universal Orlando (who only needs information pertaining to their AAP) provides the latter with a heavy amount of information to sift through. The inconvenience at this stage translates into a larger problem; since applicants 96

Id. ADA, 42 U.S.C. § 12182 (2)(A)(i).

98 See Doron Dorfman, Fear of the Disability Con: Perceptions of Fraud and Special Rights Discourse, 53.4 LAW & SOC’Y REV. 1051, 1079 (2019).

99 See Macfarlane, supra note 78, at 88.

97

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are not coming in with the specificity of information that Universal needs, their applications for AAPs could be prone to misinterpretation or even rejection through procedural error. Though Universal’s conviction to protect against malingerers is understandable, the IBCCES-AAP system used presents too many pitfalls to successfully accommodate the broader disabled community at the same time.

V.

CONCLUSION

Whether a disabled individual can enjoy life activities in any setting often depends on whether that setting is accessible to them or not. Universal’s usage of the IBCCES application tries to provide this accessibility while also addressing the issue of malingers. However, it creates more problems than it solves by leaving disabled individuals with more difficulties than a day trip should allow for anyone, disabled or not. Universal and IBCCES’ shared policy creates a risk of disabled individuals being screened out from their needs where there wasn’t one before, and limits the communication that the applicant shares with park staff to a ridiculous degree. is With the ADA’s protective intentions in mind, it is clear that this process is discriminatory under the law.

Universal and IBCCES’ process is proof of a struggle between businesses and the law to protect the rights of the disabled in the United States. The practice of interrogating disabled individuals for proof of their needs before accommodating them is not a new one, and leaves a lot to be hoped for in the future of disability rights. Seeing as public understanding of disability and disability rights is still low, it is crucial to respect the aspirations of the ADA and other civil rights legislation, and to give attention and credit to the word of the very people it aims to protect. ***

NOTE

SECULARISM OR DISCRIMINATION IN PUBLIC SCHOOLS: ANALYZING FRANCE’S BAN ON THE HIJAB IN THE CONTEXT OF RELIGIOUS FREEDOM AND SECUALRISM Mehak Imran* The intricate relationship between secularism and religious freedoms in French public schools has become a highly complex and contentious issue, especially due to the recently imposed ban on Islamic attire, such as the hijab and abaya. This ban reflects France’s deep-rooted commitment to secularism, where religion is separate from state affairs. Secularism is a fundamental principle of the French Republic that has evolved over time to strike a delicate balance between separating religion from government and safeguarding individual religious freedom, born out of Revolution-era principles. France grapples with maintaining these principles amid a growing diverse population, notably with a significant Muslim community.

The legal landscape surrounding this matter can be traced back to the Law on Religious Symbols in Schools (2004), which was introduced to regulate and even prohibit conspicuous religious garments within educational institutions. With the instruction of President Emmanuel Macron in 2023, the ban has been extended to include abayas, a form of Islamic dress in public settings. This Note will provide a comprehensive understanding of the legal challenges this prohibition poses, with a distinct focus on individual freedoms, religious rights, and cultural pluralism. This Note seeks to uncover the complexities and implications of this contentious issue by critically analyzing the equilibrium between state secularism and religious expression within the distinctive realm of French public education and potential future outcomes.

*

Bachelor of Science Candidate in Applied Accounting and Finance at Fordham University’s Gabelli School of Business, Class of 2027. I am grateful to my parents, whose faith in my potential has always inspired me. Also, a very special thanks to the Fordham Undergraduate Law Review Editorial Board, and particularly Ridhi Hora, for their mentorship and feedback. Additionally, I would like to thank my friends, whose support, encouragement, and insight have aided me every step of the way.

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I. INTRODUCTION…………………………………………………………..34 II. HISTORICAL AND LEGAL BACKGROUND………………………………… 36 A. Laïcité (Secularism) in France …………………………………….37 B. Relevant International and European Union Legal Frameworks…37 C. Discussion of the 2004 and 2010 French Laws and Their Implications……………………………………………………….38 III. LEGAL CHALLENGES AND CASE LAW …………………………………… 40 A. Review of Legal Challenges Brought Against the Hijab Ban…… . .40 B. Analysis of Relevant Case Law, Including Decisions from French Courts and the European Court of Human Rights……………… . 42 IV. EXAMINATION OF FINDINGS AND RECOMMENDATIONS FROM INTERNATIONAL HUMAN RIGHTS BODIES.……………………………… . 43 V. CONCLUSION.…………………………………………………………… .45 I.

INTRODUCTION

In 2004, France controversially banned “conspicuous” religious attire in schools, which directly impacted students’ ability to express their religious convictions.1 This ban, incorporated into French legislation in March of that year, specifically targeted minors who opted to wear the hijab as an emblem of their Islamic faith.2 The repercussions were evident when two girls were suspended from school in October 2004 for wearing traditional headscarves during class. 3 By January 2005, around forty-one Muslim girls had been expelled due to violations of this prohibition. 4 In September 2023, a contentious debate emerged surrounding the delicate equilibrium between secularism and religious freedom within educational institutions. Under President Emmanuel Macron’s administration, the French government announced its intention to expand the scope of this ban by including other 1

Loi n° 2004-228 du 15 mars 2004 relative à la formation professionnelle tout au long de la vie et au dialogue social [Law No. 2004-228, date du March 15, 2004, on vocational training throughout life and social dialogue], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [OFFICIAL JOURNAL OF THE FRENCH REPUBLIC] (JORF), March 17, 2004, p.

5190 (Fr.).

2 Id. 3 Reuters, France: First Students Expelled over Head Scarves, THE NEW YORK TIMES (2004), https://www.nytimes.com/2004/10/20/education/world/world-briefing-europefrance-first-students-expelled-over.html.

4 Betsy Reed, School expels girls for wearing headscarves, THE GUARDIAN (2004) https://www.theguardian.com/world/2004/oct/20/schools.france/.

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traditional Islamic garments, such as abayas and qamis.5 These garments are typically worn as both a representation of faith and as a component of the Islamic practice of veiling.6 Consequently, on the day these new measures took effect, approximately three hundred young girls were sent home from educational institutions, thereby disrupting their studies.7 The abaya ban in France has sparked increased concerns regarding religious freedom, with individuals seeing it as an infringement on human rights under the overarching pretense of secularism. By extending bans on religious clothing, particularly within schools, the government risks becoming discriminatory.8 It is crucial to carefully examine the French government’s position and assess how these prohibitions affect individuals’ freedom to practice religion. While upholding secular principles in education may be a priority for the authorities, they must navigate this issue sensitively so as not to violate individuals’ right to express their faith. 9 Therefore, France’s decision to entirely prohibit religious attire in public schools under the banner of secularism poses significant legal challenges concerning personal freedoms, religious rights, and cultural diversity. This necessitates a critical analysis of whether statemandated secularity can coexist with expressions of faith in a multicultural society. This Note examines the legal challenges of the hijab ban in French public education, specifically focusing on Islamic garments. It critically analyzes and substantiates the delicate equilibrium between state secularism and religious expression within this distinct realm.

5

France’s top court rejects appeal against ban on wearing abaya in schools, AL JAZEERA (Sept. 8 2023), https://www.aljazeera.com/news/2023/9/8/frances-top-court-rejects-appeal-against-ban-onwearing-abaya-in-schools/.

6 Elizabeth D. Shimek, The Abaya: Fashion, Religion, and Identity in a Globalized World, LAWRENCE UNIVERSITY HONORS PROJECTS (2012), https://lux.lawrence.edu/luhp/12/.

7 Betsy Reed, French schools send home dozens of girls wearing Muslim abayas, THE GUARDIAN (2023) https://www.theguardian.com/world/2023/sep/05/french-schools-send-home-dozens-ofgirls-wearing-muslim-abayas/.

8 Arcot Krishaswani, Study of Discrimination in the Matter of Religious Rights and Practices, 5-6, U.N. DOC. E/CN.4/SUB.2/200/REV.1 (1960).

9 Ronan McCrea, Rights as a Basis for the Religious Neutrality of the State: Lessons from Europe for American Defenders of Non-Establishment, 14 INT’L J. CONST. L. 1009, 1011 (2016).

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II.

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HISTORICAL AND LEGAL BACKGROUND

In France, the relationship between secularism and religious freedom is deeply rooted in the nation’s history and legal framework.10 The concept of secularism in France emerged as a response to centuries of religious conflict, with the French Revolution of 1789 being a driving factor in the separation of the state from the Catholic Church and the establishment of secular principles.11 In attempting to maintain a secular state, the government has historically aimed to avoid religious conflicts and divisions within society.12 This deeply rooted religious history has been pivotal in France’s current and firm adherence to secularism. However, this commitment has come at the expense of religious freedom, specifically, the wearing of Islamic garments in public. Through laws introduced in the early 2000s, such as the ban on the hijab, then the niqab, and most recently on the abaya, France has attempted to enforce its view on secularism onto its citizens.

The discourse around the hijab first arose in 1989 when three Muslim schoolgirls were suspended from a public institution for wearing the hijab. In response to this burgeoning debate, France’s preeminent administrative court, the Conseil d’Etat, issued a landmark decree.13 The decree stated that while the principles of secularism should prevail within educational institutions, students may be permitted to display religious symbols as long as those displays are discrete and do not disrupt the educational environment or promote religious or political agendas.14 However, the law gave schools the power to individually identify which objects were considered discreet or nondiscreet, resulting in an inconsistency within the application of the law.15 As a result, many educational institutions began to expel Muslim girls who chose to wear hijab. These institutions asserted that the headscarf was an

10

Raphael Cohen-Almagor, Indivisibilité, Sécurité, Laïcité: The French ban on the burqa and the niqab, 20 FR. POL., 3, 20 (2022).

11 Gino Raymond, Historical Dictionary of France, 23 (1998).

12 Roger Finke, Origins and Consequences of Religious Restrictions: A Global Overview, 74 SOCIO. RELIGION 297, 300 (2013).

13 Stephanie Walterick, The Prohibition of Muslim Headscarves from French Public Schools and Controversies Surrounding the Hijab in the Western World, 20 TEMP. INT’L & COMP. L. J. 251, 251 (2006).

14 Id. at 256.

15 Id.

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unsettling presence, one that disrupted the educational process and advanced religious and political ideologies.16 A. Laïcité (Secularism) in France Secularism, or laïcité, is described as a “core value of the French Republic” and is the belief that religion should not play a role in the organization of society, education, and other state functions.17 The constitution prescribes a very specific form of secularism that insists on a strict separation between religious institutions and the state.18 The question whether secularism and religious freedom can co-exist has thus become central to the French legal landscape. As a result, the French government has aimed to pass laws to maintain secularism, providing context to the hijab ban of 2004.

B. Relevant International and European Union Frameworks The French Constitution vows to “ensure the equality of all citizens before the law, without distinction of origins, race or religion. 19 It shall respect all beliefs and shall be organized on a decentralized basis.”20 Article 9 of the European Convention of Human Rights, which all forty-seven European Union members, including France, have signed, affirms that “everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.”21 France’s ban on religious attire raises profound questions about the intersection of secularism and religious freedom, highlighting the broader ramifications for

16

Id. at 251.

T. Jeremy Gunn, Religion and Law in France: Secularism, Separation, and State Intervention, 57 DRAKE L. REV. 958, 958 (2009).

18 András Sajó, Preliminaries to a concept of constitutional secularism, 6 INT’L J. CONST. L. 605, 629 (2008).

19 French Constitution, Declaration of the Rights of Man and of the Citizen of 1789, art. 1.

20 Id. 21 European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 66 (Sept. 3, 1953).

17

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human rights in the EU as well as France. 22 This ban prompts a crucial examination of its alignment with the aforementioned constitutional and international commitments. Specifically, delving into whether such restrictions comply with the guarantee of equal treatment and respect for diverse beliefs becomes imperative to explore how this ban may intersect with European Union law, possibly conflicting with the broader human rights framework. Analyzing these intricate legal dynamics offers insights into the broader human rights discourse both in France and the European Union as a whole.

C. Discussion of the 2004 and 2010 French Laws and Their Implications The hijab is a fard, or requirement, according to the Quran, the book that defines Islam. Specifically, the Quran commands Muslim women to “…cast down their looks and guard their private parts and do not display their ornaments except what appears thereof, and let them wear their headcoverings over their bosoms.”23 Some Muslim women also wear niqabs, or face coverings, which are another interpretation of Islamic attire.24 According to Islamic law, which is ordained by the Quran, the hijab is a very important aspect of practice for Muslim women. 25 It represents their dedication to upholding high moral standards and putting intellect and spirituality over physical looks. Nonetheless, the French legal system has yet to completely recognize the significance of the hijab to Muslim women, which is evident through its attempts to limit these women’s freedom of religious expression26 The hijab dispute peaked in 2003 when political officials urged for an outright ban on the headscarf in public schools, citing the critical significance

22

France: Headscarf Ban Violates Religious Freedom, HUMAN RIGHTS WATCH (Feb. 26, 2004). https://www.hrw.org/news/2004/02/26/france-headscarf-ban-violates-religious-freedom/.

23 AL-QUR’AN 24:31.

24 Aliah Abdo, The Legal Status of Hijab in the United States: A Look at the Sociopolitical Influences on the Legal Right to Wear the Muslim Headscarf, 5 HASTINGS RACE & POVERTY L. J. 441, 441 (2008).

25 AL-QUR’AN 24:31.

26 Rhys H. Williams and Gira Vashi, “Hijab” and American Muslim Women: Creating the Space for Autonomous Selves, 68 SOCIO. RELIGION 269, 271 (2007).

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of maintaining secularism within public education.27 As a result, in March 2004, France passed the Law of Religious Symbols. 28 This law aimed to uphold and federalize the principles of secularism in public education by prohibiting the wearing of “ostentatious” religious symbols in public schools.29 The items that fell under this ban include “large” Christian crosses, Sikh turbans, Jewish yarmulkes, and the Muslim hijab.30 In the context of the law, the term “ostentatious” has been used to describe religious symbols that are highly visible and could be perceived as disruptive to the educational and religious environment; however, the law does not target small Christian crosses, leading to debates and challenges over the law’s application.31 While the ban that the hijab falls under also targets other religions and is therefore neutral in nature, the law imposed in 2010 disproportionately targets Muslim women. A minority of Muslim women veil everything but their eyes by wearing the niqab.32 In 2010, France passed the Law Prohibiting the Concealment of the Face in Public Space. 33 This law prohibits the wearing of face-covering veils, such as the niqab, in public spaces, including “streets, public transportation, and government buildings, specifically schools.”34 In the context of public schools, the ban on face coverings applies to both students and visitors, impacting both students and adults. 35 These bans have raised legitimate concerns about their implications on religious expressions, as they restrict the wearing of religious attire, which is an

27

Talal Asad, French Secularism and the “Islamic Veil Affair” THE HEDGEHOG REVIEW (2006), https://hedgehogreview.com/issues/after-secularization-special-doubleissue/articles/french-secularism-and-the-islamic-veil-affair/.

28 Loi n° 2004-228 du 15 mars 2004 [Law No. 2004-228, dated March 15, 2004], JORF, March 17, 2004, p. 5553.

29 Id. 30 Cynthia DeBula Baines, L’Affaire des Foulards - Discrimination, or the Price of a Secular Public Education System?, 29 VAND. J. TRANSNAT’L L. 303, 304 (1996).

31 Id. 32 Anita L. Allen, Veiled Women in the Courtroom: Is the Niqab a Barrier to Justice?, 10 U. PENN. PUB. L. & LEGAL THEORY 1, 1 (2015).

33 Loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law 2010-1192 of Oct. 11, 2010 Banning the Concealment of the Face in the Public Space] arts. 2–4, JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [OFFICIAL JOURNAL OF THE FRENCH REPUBLIC], Oct. 12, 2010, p. 1.

34 Id. 35 Cassandra M. Vogel, An Unveiling: Exploring the Constitutionality of a Ban on Face Coverings in Public Schools, 78 BROOKLYN L. REV. 741, 774 (2013).

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integral part of certain Muslim women’s religious practices.36 These bans, because they specifically and disproportionately target Muslim women, reveal a deeper implication of religious freedoms being curbed under the guise of secularism.

III.

LEGAL CHALLENGES AND CASE LAW

The fundamental concern in the realm of public education—where these bans have a direct impact as students have the right to determine their own attire—revolves around the inconsistency with the human rights principles established by the United Nations. The United Nations Universal Declaration of Human Rights (UDHR), of which France is a signatory, emphasizes the importance of protecting individual liberties, including the freedom of thought, conscience, religion, and expression. 37 Additionally, the French Constitution states that the country “shall ensure the equality of all citizens before the law.”38 The nature of the hijab ban, therefore, prompts a critical examination of its compatibility with the human rights standards and constitutional provisions that France has pledged to uphold. Such scrutiny is crucial in ensuring that the pursuit of secularism does not compromise the fundamental rights and equal treatment guaranteed to all citizens within the educational realm.

A. Review of Legal Challenges Brought Against the Hijab Ban Critics argue that the ban violates many legal frameworks, including Article 1 of the French Constitution, which vows to “...ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.”39 Additionally, many have cited the hijab ban as violating the UDHR articles 1 and 2, which stress the importance of equality for all citizens without distinction.40 These articles hold status as a source of international rights law, and while they are not binding per se, they represent

36

Golseen Samari, Islamophobia and Public Health in the United States, 106 AM. J. PUB. HEALTH 11, 106 (2016).

37 Universal Declaration of Human Rights, G.A. RES. 217A (III), U.N. Doc. A/810 (1948).

38 French Constitution, art. I. 39 Id. 40 Universal Declaration of Human Rights, G.A. RES. 217 (1948), art. 2.

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generalized human rights principles. Article 2 of the French Constitution also states, “[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other status.” 41 Many have argued that the hijab bans disproportionately discriminate against Muslim women. 42 This argument centers on the idea that the ban potentially violates the fundamental principle of equality and non-discrimination, which the Constitution protects.43 Article 2 of the Convention emphasizes that “everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind.” 44 Furthermore, Article 9 of the European Convention on Human Rights (ECHR) states that “[e]veryone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief.”45 However, the hijab and abaya bans are fundamentally distinct in nature, disproportionately targeting Muslim women, which raises questions about it violating both article 2 and 9 of the ECHR. The ban on the hijab in France has sparked legal challenges with profound implications, revealing potential inconsistencies between French legislation and global human rights standards, raising concerns about discrimination. As a member of international bodies such as the United Nations and the European Union, France is expected to uphold both the UDHR and the ECHR, which safeguard religious freedom and prohibit discrimination.46 Moreover, these legal battles have triggered a nationwide discourse about the delicate line between secularism and individual liberties. The impact extends far beyond courtroom proceedings, as it fuels ongoing discussions throughout France about whether secularism can intersect with religious freedoms and human rights. Ultimately, the outcomes of these legal challenges will play a 41

Id. Stanford Scholars report French headscarf ban adversely impacts Muslim girls, STANFORD SCHOOL OF HUMANITIES AND SCIENCE (Aug. 25, 2020), https://humsci.stanford.edu/feature/stanford-scholars-report-french-headscarf-banadversely-impacts-muslim-girls/.

43 Id. 44 European Convention on Human Rights, (Nov. 4, 1950), 213 U.N.T.S. 222, art. 2.

45 Id. art. 9.

46 France Diplomacy, MINISTÈRE DE L’EUROPE ET DES AFFAIRES ÉTRANGÈRES, (Mar. 2013), https://www.diplomatie.gouv.fr/en/french-foreign-policy/human-rights/france-and-theinstitutions/.

42

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pivotal role in determining whether French laws governing public education’s regulations on religious attire align with international human rights standards outlined in documents such as Article 1 of the Constitution, Article 9 of ECHR, and UDHR principles.

B. Analysis of Sahin v. Turkey and Dogru v. France In Europe Within the Context of Education There have been many legal challenges regarding the hijab ban brought forth into legal settings. One notable case is Sahin v. Turkey, in which Leyla Sahin, a Turkish university student who wore the hijab as an extension of her religious beliefs, was prohibited from entering the university premises due to her wearing it.47 The case eventually reached the European Court of Human Rights, which concluded that the ban on wearing the headscarf did not violate Article 9 of the Convention. The court also determined that there were no additional concerns under any other articles.48 The Court ultimately ruled that the limitations placed on wearing hijab were justified as “necessary” for protecting the “public order, health or morals, or the protection of the rights and freedoms of others because it interfered with public order..”49 However, the court did not go into depth on the exact grounds that Sahin’s choice had on the freedoms of others. The arguments presented by the European Court of Human Rights in Sahin v. Turkey subsequently served as a basis for justifying the prohibition of the hijab and other religious articles in educational settings in various European nations.50 This ruling provided the basis for the ruling in Dogru v. France (2009),51 where a French minor wearing the hijab was expelled from her school on the grounds of not removing it during physical education. With the precedent of Sahin v. Turkey, the court found that secularism was of fundamental constitutional value for public order, and the court confirmed that the freedom to manifest one’s religion could be restricted to defend such imperative values.52

47

Sahin v. Turkey, App. No. 44774/98 (Eur. Ct. H.R. 2005).

Id. 49 Id. 50 Dogru v. France, App. No. 27058/05 (Eur. Ct. H.R. 2008).

51 Id. 52 Id. 48

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These cases illuminate the intricate relationship between religious expression, secularism, and human rights within the context of education.

The legal challenges and court decisions have contributed to ongoing debates regarding the right of individuals to express their religious beliefs and the state’s commitment to secularism, particularly in the context of educational institutions.

IV.

EXAMINATION OF FINDINGS AND RECOMMENDATIONS FROM INTERNATIONAL HUMAN RIGHTS BODIES

International human rights bodies have consistently addressed the complex issue of hijab bans, offering insights and recommendations that provide nuanced views and solutions to the French hijab ban. The UN Human Rights Council, a subsidiary organ of the United Nations General Assembly, has consistently emphasized the importance of protecting freedom of religion or belief.53 “The acknowledgment of an individual’s freedom to express their religious beliefs by wearing attire that represents their faith,” such as the hijab, is a crucial aspect highlighted by the council. 54 The importance of safeguarding these fundamental rights has been emphasized repeatedly. 55 The Council has emphasized “[t]he right to manifest one’s religion or beliefs, either alone or in community with others and in public or private includes the freedom to wear religious attire as an expression of one’s belief.”56 Upon analyzing the French ban on the hijab in light of these conclusions and suggestions, it becomes apparent that this ban could be perceived as infringing upon one’s right to practice their religion openly—a principle supported by the UN Human Rights Council.57 This prompts individuals to question whether this ban truly aligns with universally recognized human rights principles at an intergovernmental level. The Organization of Islamic Cooperation (OIC), which represents numerous Muslim-majority countries, 53

U.N Charter art. 18, para. 1.

France: Banning the niqab violated two Muslim women’s freedom of religion- UN experts, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER (Oct. 23, 2018), https://www.ohchr.org/en/press-releases/2018/10/france-banning-niqab-violated-twomuslim-womens-freedom-religion-un-experts/.

55 U.N Declaration of the General Assembly art. 1, ¶ 1 (1981).

56 Id. 57 Id. 54

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has also consistently expressed concern about hijab bans and similar restrictions on religious attire.58 This reflects a global concern regarding such bans and their impact on religious freedoms and individual rights. 59 The organization has emphasized that “restrictions on religious attire, such as the hijab, raise concerns about the protection of religious freedom and individual rights, with significant implications.”60 By hindering an individual’s right to dress and express their religious freedom, the government is violating many counts of human rights that are supposed to be protected. This further highlights the failure of the French government to adequately protect its citizens’ rights, passing laws that are inconsistent with basic human rights principles.

Various other human rights non-governmental organizations (NGOs), including Human Rights Watch, closely monitor and document cases of hijab bans and religious discrimination. 61 It has noted that bans of this nature, whether formulated in neutral terms, still “have a disproportionate impact on Muslim women, violating the right not to be discriminated against on the basis of religion and gender.”62 The global conversation surrounding hijab bans and their impact on religious freedom and non-discrimination is enriched by the insights provided by international human rights bodies and various human rights organizations. This raises significant concerns regarding the compatibility between France’s approach to banning hijabs and its adherence to universal human rights standards.

Additionally, many countries, such as the United States, have recently called out the ban since its extension to the abaya. 63 Nancy Turkel, the 58

Marie Juul Petersen and Turan Kayaoglu, The Organization of Islamic Cooperation and Human Rights, UNIVERSITY OF PENNSYLVANIA PRESS (2019), http://www.jstor.org/stable/j.ctv16t6hcd./.

59 A Closer Look at How Religious Restrictions Have Risen Around the World, PEW RESEARCH CENTER (Jul. 15 2019), https://www.pewresearch.org/religion/2019/07/15/acloser-look-at-how-religious-restrictions-have-risen-around-the-world/.

60 Mohammad Mazher Idriss, Laïcité and the banning of the ‘hijab’ in France, 25 CAMBRIDGE UNIVERSITY LEGAL STUDIES 260, 285 (2005).

61 About Us, HUMAN RIGHTS WATCH (2024), https://www.hrw.org/about/about-us/.

62 Judith Sunderland, Banning the Muslim Veil Denies Women Choice, Too, HUMAN RIGHTS WATCH, (Sept. 23 2012), https://www.hrw.org/news/2012/09/23/banning-muslimveil-denies-women-choice-too/.

63 USCIRF Concerned by France’s Expanding Interpretation of Ban on Religious Outfits in Public Schools, U.S COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM (Sept. 8, 2023), https://www.uscirf.gov/news-room/releases-statements/uscirf-concerned-francesexpanding-interpretation-ban-religious/.

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commissioner at the United States Commission on International Freedom, issued a direct statement condemning the actions of the government, stating that “Muslim girls in France should not have to put aside their religious beliefs and practices when stepping into a classroom, nor should they have to compromise their basic human rights, including their right to an education, in order to uphold their beliefs.” 64 Additionally, the United States Commission on International Religious Freedom (USCIRF) Chairman Abraham Cooper stated that “While no government should use its authority to impose a specific religion on its population, it is equally condemnable to restrict the peaceful practice of individuals’ religious beliefs to promote secularism.”65 With the pressure of international bodies, changes in judicial interpretations—particularly those made by the European Court of Human Rights—have had a profound impact on how these bans are enforced or limited. 66 In 2016, the State Council of France, after such discourse, overturned a ban in a French Riviera resort over a civilian wearing the burkini, a modest Muslim swim dress, stating that officials had failed to prove that it faced a threat to the public.67 These laws are guised under secularism but are closely linked to public order and national security, which this note chooses not to focus on because of a deeper examination into the religious aspect of the issue. This incident highlights the ever-evolving nature of this contentious ban regarding Islamic garments and indicates that legal bodies, when assessing bans or limitations, must establish a clear and justifiable basis, especially when it involves religious practices.

V.

CONCLUSION

The landscape of secularism, religious freedom, and human rights in France constantly evolves due to a complex interplay of legal frameworks, international standards, and deeply ingrained historical principles. The French government’s decision to enforce bans on the public display of religious symbols such as the hijab and abaya in schools under the guise of secularism has sparked considerable debate and legal battles. Although these 64

Id. Id. 66 Lauren Said-Moorhouse, Burkini ban in Nice overturned by French court, CNN (Sept. 2, 2016), https://www.cnn.com/2016/09/02/europe/france-burkini-ban/index.html/.

67 Id. 65

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bans reflect France’s dedication to preserving its national identity through secular values, they face challenges concerning individual liberties, religious entitlements, and cultural pluralism. Ongoing legal disputes have emerged as individuals and advocacy groups persistently contest these prohibitions by citing violations against their right to practice religion freely while alleging breaches of human rights. 68 Ultimately, determining the future trajectory regarding these bans relies on an intricate interplay of factors such as societal attitudes, dynamics, political considerations, and international influences— an affirmation emphasizing society’s ongoing obligation towards safeguarding human rights. Imposing such restrictions significantly affects any nation’s religious freedom, equality, and social harmony. However, it is important to recognize that this restriction disproportionately targets Muslim students specifically, raising questions over the constitutionality of such a ban.

Consequently, concerns arise regarding discrimination and inequality, which undermine the principle of equal treatment within the democratic state of France. Such measures perpetuate marginalization among affected individuals rather than fostering inclusivity or unity—ideals France strives towards as it attempts to combine religious diversity with secular ideals. ***

68

France: Banning the niqab violated two Muslim women’s freedom of religion - UN experts, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER (Oct. 23, 2018), https://www.ohchr.org/en/press-releases/2018/10/france-banning-niqab-violated-twomuslim-womens-freedom-religion-un-experts/.

NOTE

FOR APPEARANCE’S SAKE: IS YOUR HAIR REALLY YOURS AT WORK? Tylese G. Rideout* Black women are often the targets of workplace discrimination on the basis of their hairstyles. Black hairstyles, such as locs and box braids, hold cultural significance and are often ridiculed in the workplace for not complying with eurocentric grooming policies. Hair discrimination is used as a proxy for racial discrimination by employers and corporations’ human resource departments. The relationship between race and hair has prevented women of color—Black women specifically—from succeeding in the workplace both socially and financially. This Note begins by examining existing discrimination laws and how the absence of hair protection impacted past cases. Cases such as Rogers v. American Airlines (1981) and Equal Employment Opportunity Commission v. Catastrophe Solutions (2014) exemplify an existing issue of hair discrimination that has yet to be resolved.

This Note argues that leaving the issue of hair discrimination to states leads to inconsistency across state lines and perpetuates the wealth gap that exists for marginalized populations. This Note examines legislation from Florida and New Jersey to highlight discrepancies between states. Finally, this Note will argue for the necessity of passing the Create a Respectful and Open World for Natural Hair (CROWN) Act at the federal level to protect all individuals from hair discrimination. This Act will increase employment accessibility and contribute to closing the wealth gap between Black women and their white counterparts.

*

B.A. Candidate for English with a minor in African and African American Studies, Fordham College at Rose Hill, Class of 2025. I would like to especially thank Caroline Morris, whose contributions were immeasurable, for taking the time to provide detailed feedback on this Note. Last, but certainly not least, I would like to thank the FULR Editorial Board, my Senior Editor Dylan Ayer, and my friends and family for their continued support—I appreciate you all greatly.

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I. INTRODUCTION…………………………………………………………...48 II. THE HISTORY OF ANTI-DISCRIMINATION LAWS………………………….50 A. The Civil Rights Act of 1964……………………………………….51 B. Civil Rights Act of 1991……………………………………………51 III. WHAT THE PAST TELLS US.…...………………………………………… 52 A. Rogers v. American Airlines (1981)………………………………53 B. EEOC v. Catastrophe Management Solutions (2014)…….……….54 IV. STATE’S INCONSISTENT APPROACHES: LOOKING AT NEW JERSEY AND FLORIDA………………………………………………………………….56 A. Florida Senate’s CS/HB 7— Individual Freedom Bill (2022) ……. 56 B. New Jersey’s Anti-Hair Discrimination Bill (2019)……………….58 V. FOR THE SAKE OF RIGHT NOW: WHY A FEDERAL LAW? ……………..….58 VI. CONCLUSION………………………………………………………….….60 I.

INTRODUCTION

Locs, cornrows, box braids, and twists are only a few examples of traditional hairstyles commonly worn by Black women in the United States and around the world. The significance of these styles traces back to preenslavement in the U.S. and represents the interconnection between descendants of the African Diaspora and the African continent.1 Not only are these hairstyles significant to the Black population globally, but they are also a form of art: 2 These traditional styles have been utilized as forms of resistance and celebration. Black women wear these styles to both to commemorate their ancestors and stand against Western standards of beauty,3 which include the proximity to whiteness that was deemed socially acceptable in European societies during colonization.4 Black women have worn these styles as a means of survival and communication with one another.5 They used such hairstyles to communicate messages to one another through various braiding patterns and braided food into their hair during the Transatlantic Slave Route.6 These styles deviate from the cultural norms of 1

Rianna Wilson, The History of Black Hair, BLAM UK CIC (Sept. 15, 2022), https://blamuk.org/2022/09/15/the-history-of-black-hair/.

2 Id. 3 Id. 4 Id. 5 Id. 6 Id.

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Western society and are consequently condemned by Eurocentric standards of beauty into which many women of color do not fit. Thus, the practice of forcing Black women to alter their hair textures and styles for employment positions is not just an attempt to create uniformity, but also represents an attempt to minimize a culturally significant aspect of their identity in the workspace. It further insinuates that there is no room for non-white hair, or even non-white women, in the professional world.

While all women face discrimination, Black women aare the most vulnerable to being discriminated against because of hair in the workplace, critically impacting their “employment opportunities and professional advancement.” 7 Recently, U.S-based companies LinkedIn and Dove conducted the 2023 CROWN Workplace Research Study to assess hair discrimination within the workplace. which consisted of women who work both part-time and full-time and identify as Black, Hispanic, white, or multiracial/multiethnic.8 Of each demographic, the study found that Black women faced the most hair discrimination and hair insecurity with respect to job interviews and employment opportunities.9 The study also produced the startling statistic that Black women are fifty-four percent more likely to feel pressured to style their hair to fit Eurocentric standards of professionalism.10 This feeling stems from ideologies of Eurocentric beauty standards and how proximity to white features equates to professionalism and readiness for the workplace. Arguably, the study’s most alarming finding was that one-quarter of the Black women surveyed believed they were denied a job because of their hair.11 Yet hair should not be a factor in the hiring process. Employers fail to understand that different hairstyles and textures are often connected to race and ethnicity—which is one of the many reasons why Black women’s hair must be protected within the workplace.12 Although various companies and organizations have suggested ways of mitigating hair bias in the workplace, such as obtaining employee feedback 7

Dove, Hair Discrimination Research: Dove Crown Studies, THE CROWN ACT (2023), https://www.thecrownact.com/research-studies.

8 Id. 9 Id. 10 Id. 11 Id. 12 Brittany Whitley & Jill Barnas, Racial Discrimination Based on Hair and Texture, MOST POLICY INITIATIVE (Feb. 24, 2022), https://mostpolicyinitiative.org/science-note/racialdiscrimination-based-on-hair-texture-style/.

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and awareness, no federal legislation explicitly protects Black women or women of color from hair discrimination in the United States.13 This Note will argue that the discrimination Black women face in the workplace because of their hair violates Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991. It will further argue that because of the loopholes created by current state employment discrimination laws, California’s Create a Respectful and Open World for Natural Hair (CROWN) Act should be implemented at the federal level to protect Black women from hair-based workplace discrimination.

II.

HISTORY OF ANTI-DISCRIMINATION LAWS

During the 1950s and 1960s—a time of struggle for racial justice in the United States—Jim Crow and anti-Black sentiments perpetuated a high unemployment rate among Black individuals. 14 Jim Crow laws enforced legal separation between Black and white individuals within the American South; hence, the passing of the Civil Rights Act of 1964—which outlawed segregation in public establishments15—was monumental for marginalized groups.16 The Equal Employment Opportunity Commission (EEOC), which followed Title VII of the Civil Rights Act, eliminated preliminary characteristics that could be susceptible to discrimination within American society and provided administrative remedies for individuals claiming workplace discrimination.17 The Act has been revised numerous times since its enactment. Furthermore, the Civil Rights Act of 1991 fortified the previous acts and disregarded elements of identity that discriminate against marginalized groups—one being hair and its connection to race and ethnicity.

13

Janice Gassam Asare, How Hair Discrimination Affects Black Women at Work, HARVARD BUSINESS REVIEW (May 10, 2023), https://hbr.org/2023/05/how-hairdiscrimination-affects-black-women-at-work.

14 See LIBRARY OF CONGRESS, The Civil Rights Act of 1964: A Long Struggle for Freedom, https://www.loc.gov/exhibits/civil-rights-act/epilogue.html.

15 Id. 16 Jeff Bridgers, Signs of Their Times: “Jim Crow” Was Here, LIBRARY OF CONGRESS (Feb. 18, 2016).

17 Id.

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A. The Civil Rights Act of 1964 Title VII of the Civil Rights Act of 1964 ensures “[e]qual employment opportunities for Federal employees without discrimination because of race, color, religion, sex or national origin.”18 However, while section 701(a) of the Act incorporates race, it does not acknowledge physical characteristics commonly associated with it,19 such as hair textures and hairstyles worn by employees. Yet hair is a characteristic frequently tied to Black women and their physical presentation. In order to achieve “equal employment opportunities,” it is thus essential to acknowledge hair’s importance and how it is used to racialize American citizens. Black individuals and people of African descent are often racialized because of their hair type and hairstyle.

In order for a federal statute to properly outlaw racial discrimination, it must consider all factors of racialization. Although Black women are most commonly impacted by the failure to include hair as a discriminatory factor, this gap impacts all individuals. The Civil Rights Act of 1964 does not adequately cover all characteristics that are vulnerable to discrimination, especially regarding grooming policies and workplace discrimination.

B. The Civil Rights Act of 1991 The Civil Rights Act of 1991—signed by President George H.W. Bush— sought to amend Title VII of the Civil Rights Act of 1964 for the purpose of refining federal civil rights laws, specifically with respect to employment discrimination.20 While the Act provides employees with more substantive rights regarding recovering compensation for damages in instances of discrimination, it does not mitigate the issue of hair discrimination in grooming policies and hiring practices.21 Specifically, section 102(a) of the Act emphasizes “intentional discrimination,” characterized as “not an employment practice that is unlawful because of its disparate impact.”22 In the workplace, intersectionality is often overlooked, but procedural questions

18

Id. Id. 20 See Civil Rights Act of 1991, PUB. L. NO. 102-166, § 102, 105 STAT. 1071, 1072.

21 Id. 22 Id. 19

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are. 23 Intentional discrimination exists beyond the confines of race and gender. This intersection of racism and misogyny is clearly exemplified by workplace hair discrimination targeting Black women. The 2023 CROWN Workplace Research Study found that twenty percent of Black women between the ages of twenty-five and thirty-four had been sent home from work because of their hair. 24 This statistic illustrates how companies’ grooming policies directly target Black women’s hairstyles. Although the Civil Rights Act of 1991 permits employees to seek damages for intentional discrimination, the Act only revises the issue of addressing broad elements of identity that exist within the Civil Rights Act of 1964—particularly as it relates to hair.25 The Civil Rights Act of 1991 sought to “respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination,” but addresses the rulings of state courts to be equally relevant.26 III.

WHAT THE PAST TELLS US

Black women’s hairstyles have long been a topic among the courts and human resource departments. Grooming policies are not only criticized because of their ethical implications, but also because they impose a standard into which many people of color are unable to fit. Frequently, these policies center around Eurocentric expectations as to what is deemed “professional” and appropriate in a working environment. Black individuals throughout history have taken pride in their hair and its cultural significance. Grooming policies and expectations imposed on Black employees display challenges for activists, like Malcolm X, who advocated for the importance of hair as a symbol of racial alignment and cultural identity: There can be little doubt that, if America adopted a policy which foreclosed Black women/all women from wearing hair styled as an `Afro/bush,’ that policy would have very pointedly racial dynamics and consequences reflecting a vestige of slavery unwilling to die (that is, a master mandate that one wear hair divorced from ones

23

Id. CROWN ACT (2023) supra note 7.

25 See Civil Rights Act of 1964, PUB. L. NO. 88-352, 78 STAT. 241.

26 See Civil Rights Act of 1991, 105 STAT. 1071.

24

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FORDHAM UNDERGRADUATE LAW REVIEW historical and cultural perspective and otherwise consistent with the `white master’ dominated society and preference thereof).27

A. Rogers v. American Airlines (1981) One of the most significant hair discrimination cases is Rogers v.

American Airlines. 28 Here, Renee Rogers claimed that her employer, American Airlines, discriminated against her and thereby violated the Thirteenth Amendment—which outlawed the practice of enslavement—and Title VII of the Civil Rights Act of 1964. 29 Rogers wore her hair in the cornrow hairstyle, and her supervisor told her to put her hair in a bun while in the workplace.30 Rogers argued she was being discriminated against as a woman, but more notably, as a Black woman.31 The U.S. District Court for the Southern District of New York acknowledged that the style “sometimes referred to as cornrows, has been and continues to be part of the cultural and historical essence of Black American women.” 32 Though the court considered hair’s cultural significance in the Black community, it nonetheless ruled the braids not to be an “immutable characteristic of the employees involved,” and are therefore easily removable.33 The court cited Malcolm X’s quote above about the racial dynamic between the “Afro/Bush” and its significance to the Black women.34 The mention of Malcolm X’s quote is important because it explains why the court ruled that Rogers had not been discriminated against, even with the acknowledgment of the hairstyle’s cultural and racial significance.35 Furthermore, the court ruled that Rogers was not discriminated against on the basis of sex “as [t]he policy is addressed to both men and women, black and white.”36 However, the court did not examine how Black women’s hair has been viewed as inferior to white women’s hair since enslavement.

Although cornrows are “easily changeable” and removable, they hold 27

Rogers v. Am. Airlines Inc., 527 F. SUPP. 229 (S.D.N.Y. 1981).

Id. 29 Id. at 231.

30 Id. 31 Id. 32 Id. at 232.

33 Id. at 231.

34 Id. at 232.

35 Id. at 232.

36 Id. at 231.

28

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significant cultural weight. 37 To disregard cornrows as less culturally significant because they are not “immutable” still demeans the importance of Black hair to a racial identity.38 It is evident that racialization in the United States concerns more than skin color, which is why hair should be considered as an element of discrimination.39 Rogers’ argument that the cornrow style is especially significant to Black women is underscored by the style’s recent popularization by actress Cicely Tyson.40 The argument that the hairstyle was popularized by the mainstream public perpetuates the notion that Black hair is only relevant when it has been introduced to mainstream media. This concept returns to the issue of white grooming standards determining the ideal image of professionalism. Without legislation that protects hair regardless of hair type, women of color will always exist beyond these standards.

B. EEOC v. Catastrophe Management Solutions (2014) EEOC v. Catastrophe Management Solutions further demonstrated how Black women’s hairstyles defied the grooming policies of an American corporation. In 2014, Chastity Jones wore short “dreadlocks” to her in-person interview with Catastrophe Management Solutions (CMS). 41 During her interview, the human resources manager informed her she could not be hired after her refusal to cut off her dreadlocks, because “they tend to get messy.”42 The company’s grooming policy states: “hairstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” 43 The court argued it would not be possible to distinguish

37

See Aaron Roberson, White Hair Only: Why the Concept of Immutability Must Be Expanded to Address Hair Discrimination Against Black Women in the Workplace, 99 U. DETROIT MERCY L. REV. 223 (2022).

38 Id. 39 See, e.g., Grayson Moronta, Why Do You Care About My Hair?: A Proposal For Remedying Hair Discrimination in the Workplace on a Federal Level, 43 CARDOZO L. REV. 1715 (2022).

40 Rogers, 527 F. SUPP. at 232.

41 See EEOC v. Catastrophe Management Solutions, 11 F. SUPP. 3d 1139, 1139 (S. Dist.

Ala. 2014).

42 Id. 43 Id.

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whether characteristics are to be associated with race, and thus decided that Jones was not racially discriminated against.44 EEOC v. Catastrophe Management Solutions addresses racial bias and profiling and whether Title VII of the Civil Rights Act of 1964 protects marginalized groups from these practices. Title VII protects employees against racism; nonetheless, there are concerns regarding the Act being enforced neither thoroughly nor holistically. The Legal Defense Fund (LDF), a non-profit legal organization connected to the National Association for the Advancement of Colored People (NAACP), filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in favor of Jones. 45 The LDF argued that CMS “used a facially neutral grooming policy to give effect to its preference for hairstyles that suit white hair texture better than Black hair texture.”46 Furthermore, the LDF urged the court to grant review because Catastrophe Management Solutions’ ban on dreadlocks is a direct reflection of racial stereotyping. 47 The LDF also argued that the panel did not acknowledge grooming policies and the burden that they place on Black individuals in the workplace.”48 Lastly, the Legal Defense Fund believes: “[t]he panel organized its analysis around the discredited notion that race is a rigid biological concept (as opposed to a social construct with fluid delineations) and, therefore, racial traits can be neatly categorized as mutable or immutable.”49 The argument that individuals are able to place racial traits and attributes into categorical boxes negates the theory that race is a social construct. The court attempted to address which hairstyles are immutable or mutable but failed to address that each of these are tied to a racial group and its associated culture. Although cornrows can be taken out, an Afro cannot, and both hairstyles are of equal cultural significance to the Black community.

Hair should be protected under federal law, as there is a direct relationship between hair and its racial and ethnic significance.

44

EEOC, 11 F. SUPP. 3d at 1143.

LEGAL DEFENSE FUND, Economic Justice: EEOC v. Catastrophe Management Solutions (Nov. 18, 2016), https://www.naacpldf.org/case-issue/eeoc-v-catastrophe-managementsolutions/.

46 Id. 47 Id. 48 Id. 49 Id. 45

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STATE’S INCONSISTENT APPROACHES: LOOKING AT NEW JERSEY AND FLORIDA

Currently, the CROWN Act is legislated in twenty-four states. 50 Supervisor Holly J. Mitchell of Los Angeles County was the first congressional member to introduce the Act during her term as California’s state legislator.51 Governor Gavin Newsom of California signed it into law in 2019;52 numerous states have followed suit, including Colorado, New York, Washington, and New Jersey.53 Although many states have been receptive to the CROWN Act, some legislators have been reluctant to sign it into law, believing that existing legislation protects against employment discrimination more broadly. 54 However, to create continuity amongst discrimination laws, the CROWN Act must be implemented at the federal level to protect all individuals across the nation from hair discrimination. This section will analyze Florida’s Stop “Wrong to our Kids and Employees” Act and New Jersey’s Anti-Hair Discrimination Bill that contrast in values. States individually passing the CROWN Act will lead to inconsistency in workplace discrimination policy across the nation; as such, the Act should instead be implemented on a federal level.

A. Florida’s Stop W.O.K.E Act In 2022, the Florida Legislature and Governor Ron Desantis passed the Stop “Wrong to our Kids and Employees” Act (The “Stop W.O.K.E. Act”), also known as the Individual Freedom Act.55 This Act was created to limit the teachings of Critical Race Theory in Florida’s public institutions, as well as to regulate Diversity, Equity, and Inclusion (DEI) programs. 56 Critical Race Theory “critiques how the social construction of race and institutionalized racism perpetuate a racial caste system that relegates people 50

Jasmine Payne-Patterson, The CROWN Act: A jewel for combating racial discrimination in the workplace and classroom, ECONOMIC POLICY INSTITUTE (July 26, 2023), https://www.epi.org/publication/crown-act/.

51 Id. 52 Id. 53 Id. 54 Id. 55 Fla. Stat. § 760.10 (2022).

56 Id.

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of color to the bottom tiers.”57 The Stop W.O.K.E. Act allowed for topics such as prejudice, racism, and stereotyping to be taught, but “classroom instruction and curriculum may not be used to indoctrinate or persuade students to a particular point of view.”58 This Act has been under scrutiny for its attempts to prohibit certain DEI initiatives and for censorship of information being taught to children.59 One primary point of contention here is that the Act limits conversations about systemic racism and its impacts on American society.

The Stop W.O.K.E Act, the first of its kind in the United States, drastically changes the educational curriculum of students enrolled in Florida public schools, particularly because it impacts the way youth will understand racism.60 As one of the “strongest” bills to pass in Florida’s senate and across the nation,61 this Act may exacerbate systemic racism and prejudice—thus potentially restricting conversations regarding hair discrimination in the future. In response, the NAACP imposed a travel advisory for African Americans and other marginalized groups because of this Act’s passage, as it is expected to significantly impact the state’s workplace environment and schools. Based on the passage of the Stop W.O.K.E Act, one may assume that Florida will be unwilling to pass legislation to protect Black women against hair discrimination. As such, the Stop W.O.K.E Act has led to concern over the rights of Black individuals within the state of Florida.62 Florida’s Stop W.O.K.E Act legislation differs from legislation of any other states regarding DEI initiatives and education. The NAACP believes that the

57

Janel George, A Lesson on Critical Race Theory, AMERICAN BAR ASSOCIATION (Jan. 11, 2021), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil -rights-reimagining-policing/a-lesson-on-critical-race-theory/.

58 Id. at 16.

59 Sarah Mervosh, DeSantis Faces Swell of Criticism Over Florida’s New Standards for Black History, THE NEW YORK TIMES (July 21, 2023), https://www.nytimes.com/2023/07/21/us/desantis-florida-black-history-standards.html.

60 Press Release, Governor DeSantis Announces Legislative Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and Corporations, OFFICE OF FLORIDA GOVERNOR RON DESANTIS (Dec. 15, 2021), https://www.flgov.com/2021/12/15/governordesantis-announces-legislative-proposal-to-stop-w-o-k-e-activism-and-critical-race-theoryin-schools-and-corporations/.

61 Id. 62 NAACP, NAACP Travel Advisory for the State of Florida, https://naacp.org/resources/naacp-travel-advisory-state-florida/.

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Act will lead to discrimination against Black Americans, which may adversely affect their hair. 63 B. New Jersey’s Anti-Hair Discrimination Bill On December 19, 2019, New Jersey Governor Phil Murphy signed the CROWN Act.64 This decision was influenced by Andrew Johnson, a Black wrestler, who was forced to cut off his dreadlocks to be eligible to compete in a match.65 In regards to the passing of the Act, Democratic Senator Cory Booker stated: “Discrimination against black hair is discrimination against black people and no one should be denied a job, an education, or face discrimination because of their hairstyle.” 66 New Jersey has been a trailblazing state regarding anti-hair discrimination law, in contrast to states like Florida, which do not have hair mentioned within their antidiscrimination policies. New Jersey was one of the first states after California to sign the CROWN Act into law; numerous senators have been extremely vocal about its importance, specifically for Black individuals in the state.67 While there has been progress in individual states, the same cannot be said of Congress. In 2020, Bonnie Watson Coleman (D-NJ) first introduced the CROWN Act to the 116th Congress, but it was blocked by senators.68 The CROWN Act was reintroduced in 2022 and was again blocked in the U.S Senate.69 V.

FOR THE SAKE OF RIGHT NOW: WHY A FEDERAL LAW?

Many federal and state lawmakers existing legislation already protects people from hair discrimination. After the U.S Senate blocked the CROWN 63

Id. Press Release, Governor Murphy Signs Legislation Clarifying that Discrimination Based on Hairstyles Associated with Race is Illegal, OFFICE OF NEW JERSEY GOVERNOR PHIL MURPHY (Dec. 19, 2019) https://www.nj.gov/governor/news/news/562019/20191219c.shtml.

65 Id. 66 Id. 67 Id. 68 Jayla Whitfield-Anderson, Senate Republicans block CROWN legislation again. But advocates aren’t deterred, YAHOO NEWS! (Dec. 21, 2022), https://news.yahoo.com/senaterepublicans-block-crown-legislation-again-but-advocates-arent-deterred-200840509.html.

69 Id. 64

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Act in 2020, Senator Rand Paul (R-KY) stated: “The Supreme Court found in the 1973 case, McDonnell Douglas Corp v. Green, that using a pretextual reason as a cover for discrimination is a violation of federal civil rights law and subsequently, the protections sought by this bill are already provided for in federal law.”70 However, McDonnell Douglas Corporation v. Green (1973) establishes discrimination protections, but does not mention hair as a physical characteristic within the case. 71 It is important that hair receives its own protections, as it is culturally tied to race and disproportionately affects Black women in the workplace. Black women’s discrimination surrounding employment because of their hair may exacerbate socioeconomic disparities between minorities and white individuals within the United States, thus preventing minorities from obtaining socioeconomic mobility.72 If women are sent home because of their hair by employers, they lose income, thus negatively affecting their economic prospects. Federal legislation like the CROWN Act can close the racial wealth gap specifically for women of color in the U.S. According to the Goldman Sachs’ “Black Womenomics Report”, Black women face a ninety percent wealth gap, and the earnings gap drives two-thirds of this divide.73 Increasing accessibility to job security has the potential to close this wealth gap by enhancing Black women’s sense of belonging in the workplace. Women who feel protected within the workplace will benefit employers as well as their employees. They will feel comfortable to perform without the pressure and possibility of job insecurity. Self-esteem will improve for these employees, which will lead to a greater outcome in work productivity. Ultimately, protection through legislation is essential for protecting all individuals within the workplace, but most specifically the most vulnerable in this instance: Black women. By passing the CROWN Act on a federal level, the United States will be working toward achieving a more inclusive society within the workplace, and outside of it as well.

70

Id. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

72 See Daan Struyven, Gizelle George-Joseph & Daniel Milo, Black Womenomics: Investing In The Underinvested, GOLDMAN SACHS (Mar. 9, 2021), https://www.goldmansachs.com/intelligence/pages/black-womenomics-f/blackwomenomics-report.pdf.

73 Id. 71

59

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CONCLUSION

To envision a world of inclusion is to envision a world of freedom. Black children style their hair to honor their ancestors and wear these hairstyles proudly as they participate in schools. Black adults parade their cornrow styles and dreadlocks to work, where they not only feel a sense of inclusion, but also belonging. Black elders smile with pride at the progression of our society. The CROWN Act is not only about protecting individuals within the workplace, but also provides individuals with the confidence in their hair and culture needed to promote their success. Passing the CROWN Act at the federal level will not only improve Black women’s well-being within the workplace and function as a step toward socioeconomic mobility and equality.

Implementing the CROWN Act at the federal level will work in conjunction with the Civil Rights Acts of 1964 and 1991 to protect against hair discrimination in the United States. This legislation may further eliminate racial profiling within the workplace through the regulation of Eurocentric grooming policies. Cases such as Rogers v. American Airlines and EEOC v. Catastrophe Management Solutions exemplify the implications of not addressing hair explicitly within employment discrimination laws.

Eurocentric standards and grooming policies that prevent individuals, regardless of race/ethnicity, from feeling comfortable and thriving within the workplace will be held accountable. More broadly, the implementation of the CROWN Act will mediate the socioeconomic disparity that exists between Black women and their employed counterparts. Not only would it be one step closer to society becoming more equitable, but it would allow us to be united. ***

VOLUME VII, ISSUE II (Spring 2024)

NOTE

THE UNJUST IMPLICATIONS OF THE ‘CAREER OFFENDER SENTENCING ENHANCEMENTS’: EXACERBATING MASS INCARCERATION Darin D. Carlin* The ‘Career Offender Sentencing Enhancement’ statute, drafted by the United States Sentencing Commission (U.S.S.C.), intends to deter violent crime and drug possession by imposing lofty penalties and extended sentences on individuals considered career criminal offenders. However, the effects of this statute have not decreased the number of repeat offenders perpetrating violent crimes, nor have they decreased non-violent drug possession. In fact, the primary consequence of this statute is more Americans imprisoned for longer periods, further negatively impacting their families, communities, and personal rehabilitation. The primary point of contention among those who scrutinize the statute is the discrepancy between its intended goal of reducing overall violent crime and invoking the use of the statute primarily in charges related to drug possession charges. These charges are often brought forth in situations where neither violent crime nor any discernible intent to distribute is evident. The effects of this widespread misapplication are severe, as they contribute to the ever-growing blight of mass incarceration, particularly in low-income communities where the consequences of mass incarceration are most apparent and pronounced. This Note will argue that the negative consequences, which result from the harsh penalties associated with this statute, fail to provide value or aid for both the convicted and their communities plagued by mass incarceration.

Furthermore, this Note asserts that the best way to decrease crime and promote the welfare of the public is to amend the statute such that it omits drug possession and instead primarily concerns itself with violent crimes.

*

B.A. Candidate for Economics, Fordham College at Rose Hill, Class of 2025. I would like to express my appreciation to everyone who helped me make this Note a reality, including the Senior Editors and the Editorial Board of the Fordham Undergraduate Law Review, who guided me toward a final product I could take great pride in. Thank you to those who sparked my interest in law and policy, namely my high school debate coach, Eric DiMichele, and my inspiring mother, Rosemary Kindelan-Carlin, Esq., for teaching me how important critical thought and civil discourse can be in shaping a more just future.

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I. INTRODUCTION…………………………………………………………...63 II. ISSUES WITH THE U.S.S.C SENTENCING GUIDELINES…………………….65 A. Sentencing Reform Act of 1984 ……………………………………66 B. Career Offender Enhancement…………………………………….66 III. LEGAL CHALLENGES AND CASE LAW……………………………………..67 A. United States v. Booker……….……….…….………….…………68 B. United States v. Ruth and Shular v. United States…….…………..69 IV. DISPARITY IN POPULATIONS IMPACTED BY THE CAREER OFFENDER ENHANCEMENT…………………………………………….…………….70 A. Establishing Statistical Disproportionality…..……………………71 B. Impacts of Mass Incarceration………………………….…………71 C. Promoting Rehabilitation for Public Good…………….………….72 V. CONCLUSION…………………………….……………………………….73 I.

INTRODUCTION

The United States Sentencing Commission (U.S.S.C.) defines a career offender as someone who “commits a crime of violence or a controlled substance offense after two prior felony convictions for those crimes.”1 The sentencing guidelines elevate all career offenders to Criminal History Category (CHC) VI and increase penalties to those “at or near the statutory maximum penalty of the offense of conviction.”2 An individual’s CHC plays a crucial role in their sentencing outcome; if they commit another crime in the future, they will likely receive a significantly higher sentence than an individual with a lower CHC. Despite the statute’s goal of deterring violent crime and decreasing the rate of repeat offenders, it has proved unsuccessful.

In addition, the statute has increased the sentences of primarily non-violent offenders as well as the number of so-called “career criminals.”3 This is for a few reasons: first, the statute unjustly implies that violent crimes, and nonviolent drug possession warrants the same penalty. This is a crucial error, as it unfairly implies that the crimes are roughly equal in severity, at least as they pertain to repeat offenses. Considering the overwhelming majority of career offenders committed crimes of drug possession, the efficacy of 1

United States Sentencing Commission, FY 2018 through FY 2022 Datafiles (2022), https://www.ussc.gov/research/quick-facts/career-offenders.

2 Id. 3 Id.

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employing a statute that is equally applied to objectively more severe crimes, like those with firearms or robbery, is called into question. The second reason this statute has proved unsuccessful is the inconsistency of its application in the legal system. Cases including United States v. Booker (2005) and United States v. Ruth (2020) illustrate clear discrepancies between state and federal application of career offender statutes, emphasizing the inconsistency in decisions for these cases.4 The third rationale pertains to the disproportionate impact of the statute, which has resulted in the widespread imprisonment of Black males in the United States.5 This exacerbates trends of weak economic growth among affected communities, forcing these typically low-income neighborhoods to develop a culture of mass incarceration. 6 The normalization of these disparities could be another contributing factor to the increase in the number of repeat offenders. Given that the issue of overpolicing underprivileged communities indirectly leads to more drug possession convictions, it is hard to ignore this correlation.7 The government should restrict the statute’s application to violent crimes to adequately support these communities.

This Note will examine the general issues and logical discrepancies within the U.S.S.C. guidelines as they relate to the ‘Career Offender Enhancement’ and analyze how its effects contradict the stated objectives of the U.S.S.C. It will further explain why equating drug possession with violent crime leads to disproportionate and unjust punishment among offenders. This Note will then review cases such as United States v. Booker (2005), United States v. Ruth (2020), and Shular v. United States (2020) to demonstrate the inconsistent manner in which this statute has been applied in the past and the importance of unvarying sentencing outcomes. Finally, this Note will address the demographic inconsistencies in the application of the Career Offender Enhancement, highlighting statistical imbalances among affected groups. As such, this Note argues that the United States Sentencing Guidelines warrant 4

Marisa Chamberland, The Judicial War on Drugs: Deciding Whether to Apply the State or Federal Definition of Controlled Substance Offenses for Career Offender Sentencing Enhancements, 28 SUFFOLK J. TRIAL & APP. ADVOC. 377, 382 (2023).

5 U.S.S.C., supra note 1.

6 Melanie Reid, The Culture of Mass Incarceration: Why Locking Them up and Throwing away the Key Isn’t a Humane or Workable Solution for Society, and How Prison Conditions and Diet Can Be Improved, 15 U. MD. L.J. RACE RELIG. GENDER & CLASS 251, 254 (2015).

7 Id. at 256.

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amendment concerning career offender enhancements to preclude nonviolent offenders from facing unduly severe sentences based on prior drug possession charges, a practice that not only violates constitutional principles but also contributes to the escalating problem of mass incarceration.

II.

ISSUES WITH THE U.S.S.C. SENTENCING GUIDELINES

Before examining the fundamental issues pertaining to the U.S.S.C.’s Career Offender Enhancement, it is important to evaluate the statute’s harsh penalties and consequences. Overall, the enhancement—which was initially designed to decrease violent crime rates and minimize repeat offenders—has elicited the opposite effect. While it is true that the number of career offenders decreased substantially from 2019 to 2020, the COVID-19 pandemic serves as a confounding explanation for this result. The pandemic led to widespread mandates forcing people to stay indoors and businesses to shut down, resulting in a temporary decrease in crime. Subsequent to the year 2020, there was a discernible upward trend of career offender rates, eventually returning to the status quo. In addition, one may assume that the statute led to an overall increase in violent crimes, as the Final Offense Levels (FOL) of 76.7% of repeat offenders rose substantially, meaning that those individuals went on to commit more serious crimes after receiving a ‘career offender’ status.8 This implies that over three-quarters of career offenders are likely to progress from drug possession to more severe crimes with harsher penalties, many of which are violent. When examining the societal utility of this statute, this concerning reality serves to dismantle any moral counter arguments advocating for the severe punishment of those who introduce, or traffic, illicit substances into American communities since regardless of one’s thoughts relating to the destruction illegal drugs can impart domestically, the fact remains that the impacts of the Career Offender Enhancement introduce more violent crime into those same neighborhoods the criminals return to, post incarceration. Considering that the statute contributes to the exacerbation of an issue it wishes to alleviate, it must be understood that the Career Offender Enhancement statute is inherently flawed and, therefore, ought to be reexamined.

8

U.S.S.C., supra note 1.

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A. Sentencing Reform Act of 1984 The Sentencing Reform Act of 1984 established the U.S.S.C. as an independent agency in the judicial branch responsible for creating sentencing policies for federal courts. Through this Act, Congress allowed the U.S.S.C. to act unilaterally when effectuating its sentencing policies, meaning there is little legislative or judicial oversight when creating policies determining the severity of punishments for incarcerated Americans. The purpose of creating the Act was to instill greater uniformity in sentencing outcomes. It sought to accomplish this by “decreasing disparities among similarly situated defendants” through a rigid set of guidelines.”9 The commission’s policies and practices require a sentence to meet various requirements, the first being that the punishment is proportionate to the seriousness of the offense.10 This is intended to promote respect for the law and provide just punishment for the offense in question. 11 Secondly, the guidelines for sentencing must “afford adequate deterrence” for criminal conduct. 12 The third rule emphasizes protecting the public from “further crimes of the defendant.”13 Finally, the guidelines seek to ensure the defendant’s access to needed “educational or vocational training, medical care, or other correctional treatment in the most effective manner.”14 These are the standards by which the ‘Career Offender Enhancement’ statute should be judged, as they are a prerequisite for the legitimacy and authority of the U.S.S.C. In the event that the statute fails to fulfill these criteria, compelling the need for its modification to align with these fundamental, core principles.

B. ‘Career Offender Enhancement’ Upon assessing the effects of the ‘Career Offender Enhancement’ statute with respect to its intended objectives, it is evident that the statute fails to embody any of the aforementioned enumerated values. Firstly, the penalties do not reflect the seriousness of the crimes committed. While the sentence

9

Chamberland, supra note 4, at 173.

Federal Sentencing Statute, 18 U.S.C. § 3553(a).

11 Id. 12 Id. 13 Id. 14 Id. 10

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extensions are proportionate to the type of crime committed (violent versus non-violent), the other penalties, such as an elevated Criminal History Category (CHC), are not. Every offender’s CHC level to whom this statute applies is elevated to IV (the third highest level), regardless of what their level was previously or the nature of the offense.15 The statute also does not provide adequate deterrence for future crimes, as the FOL of these career offenders increase, translating to higher recidivism rates—demonstrating how the statute has the opposite effect on crime deterrence.16 Furthermore, imposing harsher minimum and maximum sentences does not prioritize the rehabilitation of career offenders; instead, it serves to institutionalize them.

Nonetheless, many offenders who receive enhancement may have their sentences reduced by 38%, with an average reduction of 49.2% of the extension. 17 The issue lies in the fact that this represents a temporary or superficial solution to a problem that could be more effectively addressed by revising sentencing guidelines pertinent to non-violent career offenders.

III.

INCONSISTENCIES IN THE APPLICATION OF ‘CAREER OFFENDER ENHANCEMENT’

Because sentencing guidelines are federal policies, they are oftentimes inconsistently applied when the offender’s conviction, or prior convictions, are considered state convictions.18 As it stands, there is a circuit split on the question of whether a defendant’s prior drug conviction[s] at the state level constitutes a predicate offense for enhancement under the guidelines.19 It is worth noting that the U.S.S.C has amended its own definition of “controlled substances” five times since its inception in 1987.20 The U.S.S.C. narrowed the definition by removing all “cross-references to identified federal statutes,” and most recently, the Commission added “five offenses that several courts had previously held not to be predicate offenses.”21 This is significant, as it reveals a clear lack of cohesion pertaining to adjudicating these offenses, depending on which circuit the case falls under. Furthermore, the 15

U.S.S.C., supra note 1.

Id. 17 Id. 18 Chamberland, supra note 5, at 171.

19 Id. 20 Id. at 175.

21 Id. at 176.

16

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Commission’s changing definitions show that its solution for determining which crimes constitute a predicate offense lies in habitually expanding the scope of crimes to which sentencing enhancement may be applied, demonstrating a lack of uniformity, stability, and flexibility in sentencing outcomes for defendants as a result of the statute. It is thus necessary to amend the statute, for defendants are unfairly receiving disparate sentences solely due to the interpretations of the various courts on the given offense.22 This phenomenon is evident in cases such as United States v. Booker, United States v. Ruth, and Shular v. United States.

A. United States v. Booker United States v. Booker exemplifies the inconsistency in how the Career Offender Enhancement statute is applied at the state level, depending on which circuit the case falls under. Here, Freddie Booker was initially convicted and sentenced to 210 to 262 months—by jury recommendation under the Federal Sentencing Guidelines—for possessing at least fifty grams of crack cocaine.23 However, at Booker’s sentencing hearing, the judge found evidence that he was in possession of an additional 566 grams, which increased his sentence to 360 months and up to life in prison; instead of the initial 22-year sentence, he was now to receive a 30-year sentence.24 The sentencing disparity arose from the Career Offender Enhancement statute, as it allowed the judge to extend Booker’s sentence based on a preponderance of evidence that was not presented to the jury. In turn, the sentencing guidelines violated Booker’s Sixth Amendment right, allowing judges to exceed jury-prescribed sentences without the usual step of presenting the additional findings to the jury and justifying it beyond a reasonable doubt.25 Moreover, while it is certain that the judge played an influential role in the severe increase to Booker’s sentence, it is essential to understand that regardless of one’s individual culpability, the fundamental truth that this statute allowed a judge to manufacture an unjust sentence for the crime Booker stood accused of, especially when compared to contemporary standards, signifies that the real problem to be corrected, lies with the Career 22

Id. at 174.

United States v. Booker, 375 U.S. 508 (2005).

24 Id. 25 Id. 23

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Offender Enhancement directly. Beyond all the other negative consequences of the statute, it also unintentionally facilitated the creation of a paradigm by which judges are given the right to unilaterally extend a defendant’s sentence independent of any input from a jury. Eventually, this decision was overturned, as it violated Booker’s Sixth Amendment right to receive an impartial verdict from a jury of his peers, but while the system of appeals provided justice for Booker, the fact remains that this error should never have occurred, and many others who have suffered similarly unjust fates in their sentencing did not receive that same justice as a result. Fortunately, the Court ruled that the “mandatory use of sentencing guidelines” was unconstitutional. 26 Despite this victory, the problem of disparities in sentencing outcomes persists as a result of the Career Offender Enhancement.

B. United States v. Ruth and Shular v. United States Besides the lack of uniformity in sentencing outcomes, other discrepancies exist because of debates over the definition of ‘controlled substances.’ 27 In United States v. Ruth, this discrepancy becomes more obvious as, following the Fourth and Sixth Circuits, the Seventh Circuit accepted a definition that extends beyond the scope of the U.S.S.C.’s sentencing guidelines.28 Here, a grand jury indicted Nathaniel Ruth on two separate charges. The first was for illegal possession of a firearm by a felon, and the second was for possession of cocaine with the intent to distribute.29 Additionally, the government used a prior conviction, for drug possession in 2006, to apply the Career Offender Enhancement to his case, extending his maximum sentence by ten years (from twenty to thirty years).30 The main source of confusion was over whether a prior state conviction constitutes a predicate offense—meaning that the statute’s application depends upon which circuit hears the case. Naturally, varying interpretations of this statute, resulting in different outcomes depending on which court tries a defendant, is intrinsically problematic since it indicates that there is no true uniformity in sentencing outcomes that permit the utilization of the Career Offender 26

Id. at 542.

Chamberland, supra note 4, at 176–177.

28 United States v. Ruth, 966 F. 3d 642 (7th Cir. 2020).

29 Id. 30 Id. 27

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Enhancement. This split again gained prominence in Shular v. United States, where the Supreme Court aimed to resolve this difference in interpretation.

Unfortunately, this resolution did not come to fruition, as it focused primarily on “the interpretation of the terms in the Armed Career Criminal Act (ACCA) rather than the terms of the Career Offender Guidelines.”31 However, this case exemplifies that there is no direct path to reconciliation among the varying circuit courts, and thus, those affected will likely gain no remedy.

Consequently, a divide persists between the legal interpretations of the Fourth, Sixth, and Seventh Circuits and those of the Second, Fifth, Eighth, and Ninth Circuits on this matter, resulting in an absence of effective solutions for individuals affected by inconsistent sentencing outcomes.

IV.

DISPARITY IN POPULATIONS IMPACTED BY ‘CAREER OFFENDER ENHANCEMENT’

The information and data reported by the U.S.S.C. indicates that a plurality of individuals subject to sentence extensions under the ‘Career Offender Enhancement’ statute are Black. Because the majority of the incarcerations of Black men and women are for non-violent drug possession convictions, it’s necessary to weigh the extension of their sentences with the interests of the public good. This trend leaves low-income neighborhoods in ruin, providing little escape or opportunities for those impacted to climb the socioeconomic ladder. These communities become locked in a cycle of poverty, limiting their employment and stunting their access to educational, economic, and healthcare opportunities.32 The only realistic way to provide a remedy for these communities is to address the problem at its source: eliminating the blight of mass incarceration. An important first step in accomplishing this is amending the Career Offender Enhancement statute such that the U.S.S.C. does not include non-violent drug possession convictions in its sentencing guidelines.

31

Shular v. United States, 140 S. Ct. 779 (2020).

Becky Pettit & Carmen Gutierrez, Mass Incarceration and Racial Inequality, 77 AM. J. ECON. & SOCIAL. 1153, 1154 (2018).

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A. Establishing Statistical Disproportionality It is crucial to establish the statistical disproportionality between the groups who have the Career Offender Enhancement applied to their sentences to properly assess the effects of mass incarceration. Of the 1,356 career offenders sentenced in the fiscal year of 2022, roughly 57.7% of these individuals were Black.33 Additionally, of those career offenders, 1,083 of them were convicted on the grounds of “drug trafficking,” while only 124 received convictions for firearm possession (seventy-seven for robbery; seventy-one for other related crimes). 34 These statistics demonstrate the abundance of non-violent offenses in a statute intended to deter violent crime.

The over-incarceration of Black men is the largest and most significant negative externality arising from the U.S.S.C.’s sentencing guidelines.

Communities characterized by over-policing yield higher rates of drugrelated arrests, leading to an increased number of drug-related convictions.

Unsurprisingly, a substantial portion of these over-policed communities consist of predominantly Black and Latino populations. This phenomenon serves as a mechanism for the subjugation and marginalization of these neighborhoods, thereby undermining the public good, whether due to indifference or deliberate inaction by those who fail to rectify this systemic inequality. 35 It is important to note that the issue of disproportionality is distinct, even if interrelated, from the issues concerning the constitutionality, or justness, of the Career Offender Enhancement itself; however, in illustrating a more complete picture of the pervasive negative impacts, characterized by higher rates of incarceration without accompanying decreases in violent crime, reveal why there must be urgency in amending the Career Offender Enhancement.

B. Impacts of Mass Incarceration The consequences of mass incarceration in the United States are widespread and severe. Often, those indirectly impacted also suffer despite being law-abiding citizens. As a byproduct of these widespread consequences, “[m]ass incarceration has generated not only direct implications for 33

U.S.S.C., supra note 1.

Id. 35 Pettit & Gutierrez, supra note 32, at 1153.

34

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inequality through the systematic removal of young Black men from free society but also indirect consequences for inequality as a result of its impacts on children, families, and communities that simultaneously suffer.” 36 For those who have been incarcerated in the past, there are both short-term and long-term impacts of their previous convictions. Convictions negatively impact previously incarcerated people’s employment opportunities and, subsequently, earnings and wage growth; furthermore, they decrease future political engagement—especially if convicted as a felon—and harm their overall health and well-being.37 These negative externalities depict a trend of disenfranchisement among those who have been previously incarcerated.

Due to a lack of rehabilitative efforts and fervent institutionalization, these individuals often fail to successfully integrate back into society, likely contributing to why previously imprisoned individuals become repeat offenders.

C. Promoting Rehabilitation for Public Good The widespread incarceration of Black men in America contradicts the concept of rehabilitation. Instead, the incarceration of Black individuals strips many minority communities of their power. The disenfranchisement experienced by these communities decreases voter participation, allowing elites to “operate relatively free of public debate.” 38 As the United States publicly promotes the ideals of freedom for all, characterized by equal opportunities among all groups to participate in government, it is inexcusable that this inequality persists in the twenty-first century. While originally “targeted incarceration” primarily entailed imprisoning drug dealers, drug users, and violent criminals, it was not met with harsh backlash by the ruling class.39 The initial acceptance of rhetoric surrounding “embrac[ing] harsher criminal punishments as essential to public safety” led the nation down a path of normalizing the incarceration of more people under the guise of promoting the public’s interests.40 Now, after examining many of the consequences of

36

Id. Id. 38 Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 OHIO ST. J. CRIM. L. 133, 140 (2011).

39 Id. at 145.

40 Id. 37

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the Career Offender Enhancement, particularly as it relates to non-violent drug possession, it becomes exceedingly difficult to make an argument for its utility or constitutionality. If, as a collective, the public can observe and understand that extending the sentences of these ‘career offenders’ does not promote their family or their community rehabilitation, the U.S.S.C.’s sentencing guidelines as they pertain to the ‘Career Offender Enhancement’ ought to be amended such that it omits non-violent drug possession for the good of the public.

V.

CONCLUSION

It is imperative that the United States Sentencing Guidelines concerning ‘Career Offender Enhancements’ are re-examined. The guidelines should preclude non-violent offenders from facing constitutionally untenable and excessively severe sentences because of prior drug possession charges, which would address the pressing concern of mass incarceration. As noted, the Career Offender Enhancement statute not only fails to accomplish the stated objectives of the U.S.S.C. but rather achieves the complete opposite. Due to increased CHC levels and harsh sentence extensions, the statute does not ensure that the seriousness of the penalty is proportionate to the crime. The statute neither deters future crime nor ensures public safety from a repeat offender’s future crimes. The elevated FOLs of those repeat offenders demonstrate that their conviction is inadequate as they are more likely to commit crimes, both violent and non-violent, in the future.

The statute does not promote the rehabilitation of these individuals; instead, it keeps them in a cycle of incarceration, leading to institutionalization and difficulty reintegrating into society. Furthermore, the Career Offender Enhancement lacks consistency and uniformity in its application. This Note’s examination of cases exposes unintentional loopholes in sentencing guidelines for the relevant statute, allowing judges to impose punishments beyond their authority. Additionally, there are notable disparities among circuit courts’ interpretation of the guidelines regarding the nature of predicate offenses. It is also clear that this statute has imparted upon low-income communities suffering from mass incarceration with numerous negative outcomes. Therefore, the lack of utility of this enhancement as it pertains to the overall public good is clear. Thus, the most just solution to the problems created by the Career Offender Enhancement, providing solvency

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for the incarcerated and those indirectly impacted by mass incarceration, is to amend the statute such that it omits crimes of non-violent drug possession from the scope of its applications.

***

NOTE

UPDATING HIPAA’S DEFINITION OF PSYCHOTHERAPY NOTES: ENHANCING CONFIDENTIALITY TO ENHANCE PATIENTS’ CONFIDENCE Elliott Lehman* This Note briefly outlines the Health Insurance Portability and Accountability Act, or HIPAA, as it pertains to psychotherapy notes. It then explains the definition of psychotherapy notes under HIPAA and discusses the Jaffee Court’s recognition of a federal psychotherapist-patient privilege.

This Note advocates for amending HIPAA to require psychotherapists to file psychotherapy notes separately from the patient’s general medical record and include modalities furnished, results of clinical tests, diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date within the domain of protected psychotherapy notes. These changes more closely approximate the U.S. Supreme Court’s demand in Jaffee for a federal psychotherapist-patient privilege

*

B.S. Candidate for Psychology and B.A. Candidate for Theology Religious Studies at Fordham College at Lincoln Center. My research interests include the use of analytical psychological and theological frameworks to facilitate trauma recovery. After my undergraduate education, I intend to pursue a Ph. D in Psychology. Thank you to the FULR Editorial Board, Professor Stout, family, and friends for their inspiration and support while I wrote this Note!

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I. INTRODUCTION.………….……………….………………………………76 II. WHERE SHOULD PSYCHOTHERAPISTS STORE PSYCHOTHERAPY NOTES?…78 A. Notes Presently Filed in the Patient’s General Medical Record…..79 B. Psychotherapy Notes Filed Separately from the Patient’s General Medical Record…………………………………………………...80 III. SHOULD HIPAA CONTINUE TO SEPARATE MEDICATION INFORMATION AND COUNSELING SESSION SPECIFICS FROM PSYCHOTHERAPY NOTES?………81 A. Medication Prescription and Monitoring………………………….81 B. Other Particulars Presently Excluded……………………………..82 IV. CONCLUSION……………………………………………………………..84 I.

INTRODUCTION

Congress passed the Health Insurance Portability and Accountability Act (HIPAA) on August 21, 1996. 1 While HIPAA expanded Americans’ healthcare coverage, the Act also increased healthcare insurers’ expenses.2 Given this costly consequence, Congress integrated tight security regulations into HIPAA to avert healthcare fraud. 3 One of these heightened security protocols involves the open sharing of psychotherapy notes between psychotherapists and healthcare insurers.4 Section 164.501 of the most recent edition of HIPAA regulations, authorized in March 2013, defines psychotherapy notes as notes a psychotherapist records during a therapy session that are stored separately from the patient’s general medical record.

Since psychotherapy notes are filed separately from the patient’s medical record, a psychotherapist may disclose psychotherapy notes under three conditions: with the patient’s consent, if the psychotherapist deems the patient to be an imminent danger to themself and/or others, or pursuant to a lawful process, like a court order or subpoena.5 However, section 164.501 does not require a psychotherapist to write or store psychotherapy notes. Therefore, a psychotherapist may store the notes they wrote during their patient’s sessions in the patient’s general medical

1

Steve Adler, HIPAA History, THE HIPAA JOURNAL (2023), https://www.hipaajournal.com/hipaa-history/.

2 Id. 3 Id. 4 45 C.F.R. § 164.501 (2013).

5 Id. § 164.512(a), (f).

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record. 6 Notes stored in the patient’s general record are not considered psychotherapy notes and thus do not have psychotherapy notes’ protective label. 7 A psychotherapist may disclose these notes without their patient’s consent for a wider array of reasons, including treatment, payment, and healthcare operations and research purposes.8 Further, under HIPAA’s current definition, psychotherapy notes do not need to include counseling session start and stop times, modalities furnished, results of clinical tests, diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date. All this information can be included in the patient’s general medical record and faces fewer barriers to release than psychotherapy notes filed separately from the patient’s general medical record.9 Including this information in the patient’s general medical record means that healthcare and insurance administration workers who know the patient may learn these intimate details about the patient’s inner life. 10 The release of this personal information can be stigmatizing, embarrassing, and damaging for patients who do not wish for anyone other than their psychotherapist to see and know the intimate details they reveal in psychotherapy sessions.11 The unnecessary release of such personal details hinders the patient’s belief in the confidentiality of their disclosures, clinical test results, and treatments.

The U.S. Supreme Court’s majority opinion in Jaffee v. Redmond (1966), however, highlights the need for a federal psychotherapist-patient privilege.12 A federal psychotherapist-patient privilege demands an atmosphere of confidence and trust between patient and psychotherapist regarding the information a patient tells their psychotherapist. 13 When HIPAA leads a patient to mistrust the confidentiality of their psychotherapy notes, the Jaffee Court’s demand for a federal psychotherapist-patient privilege is unfulfilled.

This Note evaluates whether HIPAA’s definition of psychotherapy notes satisfies the Court’s recognition of a federal psychotherapist-patient privilege.

This Note argues that Congress should amend HIPAA to require 6

Id. § 164.501.

Id. 8 Id. § 164.508(a)(2)(i), § 164.512(b)(1)(i).

9 Id. § 164.501.

10 Id. 11 Jaffee v. Redmond, 518 U.S. 1, 10 (1996).

12 Id at 2.

13 Id. 7

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psychotherapists to file psychotherapy notes separately from the patient’s general medical record and include modalities furnished, results of clinical tests, diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date within the domain of protected psychotherapy notes.

These changes more closely approximate the Jaffee Court’s demand for a federal psychotherapist-patient privilege.

II.

WHERE SHOULD PSYCHOTHERAPISTS STORE PSYCHOTHERAPY NOTES?

HIPAA aims to resolve the tension implicated by the Fourth Amendment between an individual’s interest in the privacy of their healthcare information and the need to disclose their healthcare information so that providers, administrators, insurance agents, and law enforcement can perform their jobs. 14 If the release of notes recorded during a patient’s psychotherapy sessions does not reasonably help these professionals perform their duties, then the release constitutes an unlawful search and seizure.15 The Jaffee Court recognized the need for a patient to trust the confidentiality of information they share with their psychotherapist if psychotherapy treatment is to be effective.16 Effective psychotherapy relies on a psychotherapist-patient privilege, which, the Jaffee Court explains, “depends upon an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede the development of the relationship necessary for successful treatment.” 17 A patient may be less likely to disclose such sensitive information if they do not believe their disclosures are confidential. 18 Privacy is paramount, and the consequences of breaches are significant. A patient’s disclosure of personal information to their psychotherapist is “essential for accurate diagnosis and effective treatment.”19 14

Id. at 18.

Id. 16 Id. at 2.

17 Id. 18 Luana Bossolo, APA Raises Privacy Concerns on Mental Health Records, AMERICAN PSYCHOLOGICAL ASSOCIATION (2005), https://www.apa.org/news/press/releases/2005/03/patient-privacy.

19 Paul S. Appelbaum, Privacy in Psychiatric Treatment: Threats and Responses, 159 AM. J. PSYCHIATRY 1809, 1809 (2002).

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A. Notes Presently Filed in the Patient’s General Medical Record HIPAA grants psychotherapists unilateral discretion concerning where they file the notes they record during a patient’s psychotherapy session: in the patient’s general medical record or separately.20 Information contained within a patient’s general medical record is more easily accessible by third parties.21 Under current law, these notes can be disclosed to legal government authorities for the purpose of sharing information about abuse, neglect, and domestic violence and also for purposes of treatment, payment, healthcare operations, or research.22 Disclosure required by law and to government authorities regarding abuse, neglect, and domestic violence is warranted to maintain public order and safety. By contrast, disclosure for treatment, payment, and healthcare operations or research purposes is nonessential. First, the release of psychotherapy notes to healthcare workers is unnecessary since these notes do not concern the chemical and biological processes relevant to healthcare work.23 Releasing these notes to insurance administrators is also unwarranted.

Though insurance companies ensure that covered patients obtain the treatment they need, insurance agents lacking an advanced education in psychology are not qualified to use notes taken during psychotherapy to assess a treatment plan’s validity. 24 Further, psychotherapists have wide latitude in the treatments they provide to patients, so the bar for malpractice or improper treatment is high.25 Lastly, disclosure for research purposes may violate the American Psychological Association’s (APA) research ethics code. The APA research ethics code asserts that obtaining informed consent from research participants is a requirement during research.26 The benefits of releasing psychotherapy notes to researchers so that they may analyze their 20

45 C.F.R. § 164.512.

Id. 22 Id. § 164.508(2)(i), § 164.512(a), (c), (f), (i).

23 See Michael J. Seminerio & Mark J. Ratain, Preventing Adverse Drug-Drug Interactions: A Need for Improved Data and Logistics, 88 MAYO CLINIC PROCEEDINGS 126 (2013).

24 See Nicky Hayes, What Makes a Psychology Graduate Distinctive?, 1 EUROPEAN PSYCHOLOGIST 130, 130 (1996).

25 AMERICAN PSYCHOLOGICAL ASSOCIATION, Understanding psychotherapy and how it works, APA (2012), https://www.apa.org/topics/psychotherapy/understanding.

26 AMERICAN PSYCHOLOGICAL ASSOCIATION, Ethical Principles of Psychologists and Code of Conduct 3.10 (2017), https://www.apa.org/ethics/code.

21

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contents and the impacts of various therapeutic modalities do not outweigh the harms of breaching psychotherapist-patient confidentiality. In fact, breaching confidentiality impairs the atmosphere of trust that the Jaffee Court holds is required for the very effective psychotherapy these researchers purportedly try to enhance via their research.27 These breaches do not only reduce the atmosphere of trust necessary for effective psychotherapy. These breaches also may, in turn, inflict psychological and financial harm on patients. Receiving psychotherapy can be stigmatizing. People with mental disorders are often labeled dangerous, weak, and even sinful and evil.28 The Jaffee Court recognizes this stigma, attesting that sensitive confessions may be embarrassing or disgraceful for the patient.29 Nonessential release increases the likelihood that psychotherapy patients experience stigmatization merely for being patients. A patient’s condition may even be a financial liability if made public: employers are less likely to hire an applicant whom they know has a mental disorder.30 B. Psychotherapy Notes Filed Separately from the Patient’s General Medical Record Under HIPAA, fewer circumstances authorize the release of psychotherapy notes filed separately from the patient’s medical record. With a patient’s consent, a psychotherapist may disclose psychotherapy notes.

Without their permission, the U.S. Department of Health and Human Services (HHS) can access the notes to help law enforcement prevent an imminent threat to public safety, and a psychotherapist may use psychotherapy notes without their patient’s consent to aid their legal defense if sued for malpractice or prosecuted.31 These limited reasons for disclosure are practical. Since psychotherapy notes concern the intimate details of a patient’s life, requiring consent for disclosure is sensible and promotes a patient’s agency. Second, the mission 27

Jaffee, 518 U.S. at 2.

See Brian K. Ahmedani, Mental Health Stigma: Society, Individuals, and the Profession, 8 THE INTERNATIONAL JOURNAL OF SOCIAL WORK, VALUES, AND ETHICS 1 (2011).

29 Jaffee, 518 U.S. at 10.

30 Richard E. Nelson & Jaewhan Kim, The Impact of Mental Illness on the Risk of Employment Termination, 14 JOURNAL OF MENTAL HEALTH POLICY AND ECONOMICS 39, 39 (2011).

31 45 C.F.R. § 164.512.

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of the HHS is “to ensure the health and well-being of all Americans,” so establishing HIPAA compliance among therapists lies within the department’s jurisdiction.32 The circumstances that permit the disclosure of separately filed psychotherapy notes also adequately balance an individual’s right to privacy with public safety interests. Law enforcement should be able to secure a subpoena for a patient’s psychotherapy notes if there is probable cause to believe that the public’s safety is threatened and that the notes will help authorities neutralize the threat.33 Likewise, if a psychotherapist is sued or charged with a crime, I argue that a psychotherapist’s right to defend themself against a devastating lawsuit or indictment overrides the patient’s desire for privacy in their psychotherapy notes. Still, a judge should only subpoena these notes or admit them against the patient’s will if they appear relevant to the psychotherapist’s defense.

III.

SHOULD HIPAA CONTINUE TO SEPARATE MEDICATION INFORMATION AND COUNSELING SESSION SPECIFICS FROM PSYCHOTHERAPY NOTES?

The second half of HIPAA’s definition of psychotherapy notes lists the information excluded from the scope of these notes. Psychotherapy notes exclude “medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: [d]iagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.”34 This definition places a mountain of personal information within the patient’s general medical record, where it is susceptible to greater third-party access.35 A. Medication Prescription and Monitoring Congress should not expand HIPAA’s definition of psychotherapy notes so as include medication prescription and monitoring within the less 32

U.S. Department of Health and Human Services, Introduction: About HHS, HHS (2024), https://www.hhs.gov/about/strategic-plan/2022-2026/introduction/index.html.

33 Cf. Maryland v. Buie, 494 U.S. 325, 335 (1990).

34 45 C.F.R § 164.501.

35 45 C.F.R § 164.501, 164.508(2)(i), 164.512(i).

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accessible domain of psychotherapy notes. An individual looking at medications listed in a patient’s general medical may be able to deduce that patient’s mental disorder or symptomatology based on these medications. For example, doctors prescribe lithium almost exclusively to treat mania and bipolar disorder.36 The advantages of separating medication prescription and monitoring from psychotherapy notes’ scope, however, outweigh the disadvantages of separation. Specific drug interactions can produce adverse effects.37 Approximately 7,000 to 9,000 people die every year in the United States alone due to medication errors.38 Continuing to exclude medication prescriptions and monitoring from psychotherapy notes allows medical professionals to discover potential adverse interactions between a drug a patient is taking and a drug the doctor might prescribe. Excluding medication from the scope of psychotherapy notes can save lives.

B. Other Particulars Presently Excluded Like medication prescription and monitoring, counseling session times and treatment frequencies should remain in a patient’s general medical record.

Though receiving psychotherapy can be stigmatizing, this information does facilitate smooth healthcare and insurance operations. 39 Maintaining counseling session times and treatment frequencies in the patient’s general medical file allows healthcare and insurance workers to do their jobs and provides patients with insurance coverage.

Conversely, no potentially life-saving benefits warrant excluding modalities furnished, results of clinical tests, diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress from the scope of psychotherapy notes. Lack of access to this information does not carry the same immediate risk as not knowing what medications a patient is taking: this information reflects only a patient’s psychological state, whereas 36

Mayo Clinic, Lithium (Oral Route), MAYO CLINIC (2024), https://www.mayoclinic.org/drugs-supplements/lithium-oral-route/description/drg20064603.

37 Seminerio & Ratain, supra note 23, at 88.

38 Hui-Ning Tu et al., Reducing Medication Errors by Adopting Automatic Dispensing Cabinets in Critical Care Units, 47 THE JOURNAL OF MEDICAL SYSTEMS, 51, 51 (2023).

39 See Matthew S. Kendra et al., The Stigma of Having Psychological Problems: Relations With Engagement, Working Alliance, and Depression in Psychotherapy, 51, AMERICAN PSYCHOLOGICAL ASSOCIATION 563, 563 (2014).

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medications have a more significant chemical and biological impact on a patient.40 Medical doctors can provide sound medical treatment without this information, though perhaps not as compassionately as they can with it.41 Now, the exclusion of all this information from the definition of psychotherapy notes may increase the chances that someone will notice a psychotherapist’s negligent or haphazard psychotherapy plan and alert the proper authorities. Such an occurrence may save lives, but, again, psychotherapists have wide latitude in the treatments they provide to patients.42 The bar for malpractice is high, so a mental health professional deducing malpractice in another professional’s work via this channel is unlikely. 43 In effect, excluding this information from the protections of psychotherapy notes’ scope is unlikely to prevent harm. Releasing this information for research purposes is also unnecessary, and it reduces the atmosphere of trust integral to effective psychotherapy.44 While excluding prescription medication from the definition of psychotherapy notes is necessary, excluding modalities furnished, results of clinical tests, diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date from its scope is unjustifiable. Excluding this information does not reasonably operate to save lives. The Jaffee principle demands that effective psychotherapy cultivate “an atmosphere of confidence and trust.” 45 The Court even acknowledged that the disclosure of psychological problems to unintended recipients can be harmful, stigmatizing, and embarrassing to an individual. 46 HIPAA’s current definition does not cultivate such an atmosphere, for a plethora of personal information is at risk of unnecessary exposure to healthcare, insurance, and law enforcement personnel without justifiable cause to view this information. If, in addition to the prescription and medication monitoring, HIPAA excluded only counseling session start and stop times, and treatment frequencies from the definition of psychotherapy notes, hospitals and insurance companies could still carry out health care, invoicing, and reimbursement operations. As long 40

See Seminerio & Ratain, supra note 23, at 88.

Id. 42 American Psychological Association, Understanding psychotherapy and how it works, APA (2012), https://www.apa.org/topics/psychotherapy/understanding.

43 Id. 44 Jaffee, 518 U.S. at 2.

45 Id. 46 Id. at 10.

41

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as litigation is still available to victims of psychotherapeutic wrongdoing, patients can still have legal recourse if their psychotherapist provides improper or illegal care.

IV.

CONCLUSION

To more closely approximate the Jaffee Court’s call for a federal psychotherapist-patient privilege, I propose that Congress amend HIPAA’s present definition of psychotherapy notes to require psychotherapists to record and store them separately from the rest of the patient’s general medical file. I also propose that psychotherapy notes include modalities provided, diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date to enhance this information’s protection from third-party access. However, medication prescription and monitoring, counseling session start and stop times, and the frequencies of treatments furnished should not be included within the scope of psychotherapy notes.

The definition I am proposing will enhance confidentiality in the psychotherapy room and will increase patients’ trust in the privacy of the disclosures they make for their well-being during psychotherapy sessions. It will also serve the public good. The Jaffee Court notes that a federal psychotherapist-patient privilege “serves the public interest, since the mental health of the Nation’s citizenry, no less than its physical health, is a public good of transcendent importance.”47 In an era where “90% of Americans feel [the country is] in a mental health crisis,” 48 mental health is critical.

Amending HIPAA’s definition to heighten patients’ confidence in the confidentiality of their disclosures can facilitate the maximum disclosure of their personal information to their psychotherapists. Maximum disclosure, in turn, can help patients bring their psychological shadows into the light of consciousness and thereby cultivate psychological well-being and wholeness.

***

47

Id. Thomas Insel, America’s Mental Health Crisis, PEW CHARITABLE TRUSTS (2023), https://www.pewtrusts.org/en/trend/archive/fall-2023/americas-mental-health-crisis.

48

NOTE

THE PARADOX OF PROSTITUTION: DO WE HAVE TO CHOOSE BETWEEN CIVIL LIBERTIES AND SOCIETAL WELFARE? Madeline Green*402 The repeal of New York Penal Law Section 240.37, dubbed by its critics as the “Walking While Trans” Ban, marked a significant victory for civil rights, particularly for transgender and cisgender women of color. However, this repeal has reignited discussions about the necessity of laws targeting loitering for prostitution in New York. This Note provides a comprehensive examination of the history, enforcement flaws, and eventual repeal of section 240.37. It highlights past court decisions, such as People v. Smith and Fenster v. Leary, to argue for the relevance of a prostitution-based loitering law. Drawing on legal analysis and historical context, this Note proposes amendments for the reimplementation of a similar statute, emphasizing the importance of balancing civil liberties with public safety concerns. Key suggestions include strengthening probable cause requirements, defining specific behaviors indicative of prostitution, and involving sex worker advocacy organizations in policy design and law enforcement training. By addressing the shortcomings of section 240.37 while prioritizing the protection of New York communities, New York lawmakers can and should craft a new statute that effectively deters loitering for prostitution while safeguarding civil liberties and promoting societal welfare.

*

B.A. Candidate for Political Science and Philosophy Studies, Pre-Law Track, Fordham College at Rose Hill, Class of 2026. It has been a pleasure and honor to be a part of the Fordham Undergraduate Law Review as a first-year writer. The conceptualization of this Note would not have been possible without the insightful conversations brought to light by the Honorable Marybeth Richroath and her class on Human Trafficking and the Law. This note is dedicated to my father, who inspires and encourages me to pursue a career in the law.

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I. INTRODUCTION……………………………………………………………86 A. A Brief History of Prostitution in N.Y.C. ………………………….86 B. N.Y. P.L. § 240.37………………………………….………………88 C. The Unconstitutional Vagueness of N.Y. P.L. § 240.37 and the N.Y.P.D. Patrol Guide …………………………………………… 89 D. The Abuses of N.Y. P.L § 240.37 by Law Enforcement...………….91 E. The 2021 Repeal of N.Y. P.L. § 240.37…………………………… 92 II. RATIONALE FOR REIMPLEMENTATION: N.Y. P.L. § 240.37………………93 A. People v. Smith…………………………….………………………93 B. Fenster v. Leary…………………………………………………… 95 III. REAPPRAISAL, REIMPLEMENTATION, AND ENFORCEMENT……………….97 A. Reappraisal…………….………………….……………………….97 B. Reimplementation………….……………………………………….98 C. Enforcement ………………………………….……………………100 IV. CONCLUSION……………………………………………….……………100 I.

INTRODUCTION

A. The History of Prostitution in NYC Known as the “devil’s playground,” the sex business in New York City has a long history of being extremely pervasive. Prostitution, the world’s oldest profession, is defined at its most basic level by New York State Penal Law section 230.00. A person is guilty of prostitution when said person “engages, or agrees or offers to engage in sexual conduct with another person in return for a fee.”1 Written in 1976, New York Times journalist Maurice Carroll describes a stroll along Eighth Avenue as one which provides sights such as “the Show World Center (Adult XXX Movies, 69 Raw Films, plus LIVE NUDE Girls), Adult Mini-Movies (the Best XXX-Rated Peep Films in New York), the Sensitivity Meeting Place (6 Lovely Girls), and the Cameo, which was showing ‘Les Bordello Girls’ and ‘House of Kinky Pleasure.’”2 Others have cited the New York City sex industry as “aggressively tawdry,” or sleazy, degrading, and often menacing.3 Those who live in the vicinity of 1

NY. PENAL CODE § 230.00 (1967).

Maurice Carroll, Times Square Cleanup: Breach of Civil Liberties?, THE NEW YORK TIMES, Nov. 15, 1967, at 35.

3 Id. 2

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outwardly sexual women and sights have taken the initiative to clean up their city. On Monday, November 15, 1976, those who lived or worked in areas affected by the presence of prostitution gathered together and held a rally on Eighth Avenue.4 Present at the rally was the reverend of the Church of the Holy Cross, Robert Rappleyea, who noted how the children who live in such neighborhoods are affected, showing that “this stuff is not victimless.” 5 Furthermore, these residents and children yelled, “Give us back our neighborhood,” pointing to the devastation prostitution had caused in their area.6 Although prostitution has always been prevalent, its effects on New York City have been particularly rampant. The solicitation of sex workers creates an environment of harassing conduct that “interferes with the use and enjoyment by other persons of public places.”7 This Note puts forth that prostitution policing is necessary to ensure the public’s general welfare, especially for children. To address this concern, New York enacted Penal Law section 240.37 in 1976.8 However, in 2021, section 240.37 was repealed, reigniting fears about public safety and the risk of becoming an unwilling victim.9 After sufficiently setting the scene, this Note will analyze past court decisions to illustrate the necessity and relevance of a statute like or similar to section 240.37 to exist in New York. This Note will then propose potential alterations to section 240.37, which will transform the statute to eradicate the injustices that have occurred against transgender and cisgender women of color while ensuring the continued protection of public welfare. This will be accomplished by examining the language and historic enforcement of section 240.37. Ultimately, this Note will produce various suggestions to achieve this goal, suggesting that the best course of action is revision and subsequent reimplementation.

4

Neighbors Protest 8th Ave. Pornography, THE NEW YORK TIMES, Nov. 15, 1967, at 35.

Id. 6 Id. 7 Carl E. Heastie, Memorandum in Support of Legislation, THE NEW YORK STATE ASSEMBLY, https://nyassembly.gov/leg/?bn=A00654&term=2019&Summary=Y&Memo=Y#:~:text=T he%201976%20legislature%20justified%20this,and%20its%20potential%20for%20abuse %20%2D. 8 Karen Struening, Rounding Up the Undesirables: The Making of a Prostitution-Targeted Loitering Law in New York City, 47 SOCIAL JUSTICE 39, 53 (2020).

9 States News Service, GOVERNOR CUOMO SIGNS LEGISLATION REPEALING THE ‘WALKING WHILE TRANS’ BAN (Feb. 2, 2021), https://advance-lexiscom.avoserv2.library.fordham.edu/api/document?collection=news&id=urn:contentItem:61 XB-3NM1-JCBF-S0M4-00000-00&context=1516831.

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B. N.Y. P.L. § 240.37 To “curtail the proliferation of prostitution” and other “maladies” in New York, section 240.37 was passed in 1976 by an Assembly vote of 100 to 20 and a Senate vote of 54 to 5.10 The codification of section 240.37 was entitled “loitering for the purpose of engaging in a prostitution offense,” and the statute read as follows: Any person who remains or wanders about in a public place and repeatedly beckons to, or repeatedly stops, or repeatedly attempts to stop, or repeatedly attempts to engage passers-by in conversation, or repeatedly stops or attempts to stop motor vehicles, or repeatedly interferes with the free passage of other persons, for the purpose of prostitution as that term is defined in article two hundred thirty of this part, shall be guilty of a violation and is guilty of a class B misdemeanor if such person has previously been convicted of a violation of this section or of section 230.00 of this part.11

Under section 240.37, “public place” meant “any street, sidewalk, bridge, alley or alleyway, plaza, park, driveway, parking lot, or transportation facility or the doorways and entranceways to any building which fronts on any of the aforesaid places, or a motor vehicle in or on any such place.”12 The Assembly sponsor of the bill, Albert H. Blumenthal, majority leader, said that the “measure was necessary to combat aggressive street solicitation, which makes strolling on many Manhattan streets unpleasant.”13 Likewise, Senator Ohrenstein argued that the bill was a response to the complaints of the residents in the area, who he said were “constantly being accosted and solicited by prostitutes in the streets.”14 As such, Ohrenstein said what was at stake was “the right of other individuals to be able to use the streets without being subjected to those who traffic in this pernicious trade.”15 Loitering for the purposes of prostitution can readily escalate into harassment, particularly

10

Struening, supra note 8, at page 53.

New York Consolidated Laws, Penal Law - PEN § 240.37 Loitering for the purpose of engaging in a prostitution offense, FINDLAW (2021), https://codes.findlaw.com/ny/penallaw/pen-sect-240-37/.

12 Id. 13 Ronald Smothers, Prostitution Loitering Bill Passes Albany Legislature, THE NEW YORK TIMES, Jun. 11, 1976, at 28.

14 Steven Weisman, Senate in Albany Votes a Loitering Bill Aimed at Curbing Rise in Prostitution, THE NEW YORK TIMES, May. 20, 1976, at 39.

15 Id. 11

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when it involves non-consensual interactions such as repeated catcalling or unwanted physical contact. This type of conduct will be further examined in the context of People v. Smith (1978), where such behaviors are central to the case.

Section 240.37 was implemented during a period when several comparable statutes were also being enacted. Examples include California’s section 653.22, Ohio’s section 533.095, and New Jersey’s section 2C:34-1.1, all of which were specifically aimed at addressing prostitution-related loitering issues.16 The introduction of such targeted loitering laws delineates a distinction between those who adhere to societal norms and those who deviate from them, portraying offenders of the regulation not merely as individuals but as a threat to the welfare of society. In all, the New York State legislature recognized complaints by “unwilling victims” and generally considered the trend in comparable statutes being passed in other states as progressive, ultimately leading to the creation and codification of section 240.37.17 C. The Unconstitutional Vagueness of N.Y. P.L. § 240.37 and the NYPD Patrol Guide Despite its potential, there are strong reasons to believe that section 240.37 was unconstitutionally vague. Just a day after it took effect, the Legal Aid Society filed a complaint in the United States District Court of the Southern District of New York. The complaint stated that section 240.37 criminalizes many forms of constitutionally protected activities. 18 One example occurs when it criminalizes “engaging passers-by in conversation.”19 Following this, there is no language delineating what type of conversation would constitute a violation of section 240.37. Consequently, determining a conversation’s means is left to law enforcement. Here, it can be seen that if a police officer believes that a conversation was for the purpose of prostitution, then it would be legally constituted as such.

16

Maya Campbel, “Perceived to be Deviant”: Social Norms, Social Change, and New York State’s “Walking While Trans” Ban, 110 CALIFORNIA LAW REVIEW 1065, 1081 (2022).

17 Id. 18 Complaint and Demand for a Jury Trial at 2, Plaintiffs v. the City of New York, No. 16 cv 7698 (U.S.D.C. S.D. N.Y. Sep. 30, 2016).

19 Id.

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Likewise, section 240.37 lacks language that clearly delineates the criteria and guidelines that would make it possible to determine what conduct is “for the purpose of prostitution.”20 Without guidance, the New York Police Department is given immense discretion to assume an individual’s “purpose.”21 As a result, a police officer can serve as the sole arbiter when deciding whether or not a conversation or act was carried out “for the purpose of prostitution.” 22 When granting police officers such unfettered discretion, section 240.37 takes away the public’s ability to know and understand what conduct of theirs could be deemed criminal. Consequently, the general public cannot discern if their conduct is at risk of penalization. As evident here, when a law is ambiguous, police and other law enforcement officials interpret and enforce it according to their personal discretion—rendering section 240.37 a detrimental piece of legislation capable of functioning in unintended and volatile ways.

Furthermore, the guidance provided to police officers within the N.Y.P.D. Patrol Guide is equally as vague and flawed, thereby serving as a catalyst to exacerbate the flaws of the statute. For instance, the Patrol Guide instructs officers “that an arrestee’s ‘clothing’ is ‘pertinent’ to the probable cause inquiry.”23 However, similar to section 240.37, the Patrol Guide lacks clear criteria regarding what attire might raise suspicion, depriving citizens of the ability to foresee how their clothing choices could lead to their arrest.24 It is this lack of criteria that allows and encourages officers to make arrests based on “individual, subjective opinions regarding what clothing someone who might be ‘loitering for the purpose of prostitution’ would wear.”25 Arresting officers are often provided with pre-printed affidavits to fill out after the initial arrest and prior to the defendant’s first court appearance. Such affidavits prompt arresting officers to describe clothing as “revealing” or “provocative.” However, officers frequently cite ordinary clothing items such as jeans or leggings as justification for invoking section 240.37, despite these items having no connection to the intent of prostitution. As said by the New 20

Id. Plaintiffs v. the City of New York, supra note 18 at 2.

22 Id. 23 The City of New York Police Department, Patrol Guide, (2019), https://www.nyc.gov/html/nypd/downloads/pdf/public_information/public-pguide1.pdf.

24 Id. 25 Id. 21

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York Civil Liberties Union, “Officers look for people wearing clothing they perceive as both feminine and immodest.”26 Furthermore, as said by the New York City Bar, “Women have been arrested under § 240.37 for wearing jeans and a tank top, or a dress with the bra strap showing, or a hoodie with tight pants.”27 Police officers should not be permitted to establish probable cause based on attire. In this case, the difference between being innocent and a criminal boils down to “how a person looks.”28 D. The Abuses of N.Y. P.L. § 240.37 by Law Enforcement The highly ambiguous phrasing of section 240.37 gave police officers the discretion to subjectively assess whether the behavior or appearance of an individual constituted an offender status. As delineated in Queer (In)Justice, police and other law enforcement authorities wield significant influence akin to lawmakers themselves, especially in determining which laws to apply, how to use them, and whom to target for enforcement actions. 29 In practice, section 240.37 has allowed widespread law enforcement practices like “unlawful surveillance, stops, questioning, frisks, searches, seizures, and/or arrests of women engaged in wholly innocent conduct.”30 Section 240.37 became a tool to project officers’ homophobia or misogyny, repeatedly resulting in the unlawful prosecution of citizens whose intentions were entirely unrelated to prostitution. Arrests under the provision “disproportionately impacted women, particularly cisgender and transgender women of color.” 31 For example, “[e]ighty-five percent of the individuals arrested under [s]ection 240.37 between 2012-2015 were Black or Latina.”32 As such, section 240.37 has recently been colloquially known as the “Walking While Trans” Ban. 33 Additionally, as said by Monroe County District Attorney Sandra Doorley, section 240.37 was used to wrongfully 26

New York Civil Liberties Union, 2019-2020 Legislative Memorandum (2019), https://www.nyclu.org/uploads/2019/07/loitering_repeal_2019_1.pdf.

27 New York City Bar, Repeal the “Walking While Trans” Ban (2021), https://www.nycbar.org/reports/repeal-the-walking-while-trans-ban/#_edn4.

28 Campbel, supra note 16, at 1084.

29 Joey Mogul, et al., Queer (In)Justice: The Criminalization of LGBT People in the United States (2011).

30 Plaintiffs v. the City of New York, supra note 18, at 13.

31 Heastie, supra note 7.

32 Id. 33 Campbel, supra note 16, at 1065.

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profile based on “gender expression or appearance.”34 One example of this injustice occurred on June 6, 2015, when an “African-American woman who is transgender was arrested [under section 240.37] in her neighborhood on her way home from buying food and cigarettes at a nearby store.”35 This case exemplifies a situation of utmost clarity that highlights the injustices perpetrated by the unconstitutionally vague language of the statute, suggesting a significant issue in its enforcement.

As said by author and New York University Professor Pamela A. Roby, “Persons are not ‘criminals’ unless a law defines their behavior as a ‘crime.’”36 Section 240.37 does not define transgender and cisgender women of color as criminals, yet they are being treated as such. The systematic removal of innocent individuals, arguably stemming from a desire to uphold traditional norms that historically shaped the nation’s identity, like the preservation of whiteness and cis-heteronormativity, represents a civil injustice that formed the foundation for repealing section 240.37.37 E. The 2021 Repeal of N.Y. P.L. § 240.37 On February 2, 2021, section 240.37 was formally repealed on the grounds that it had been formulated with an extremely broad definition of loitering that led to the disproportionate arrest of law-abiding transgender and cisgender women of color.38 On this, the governor of New York at the time, Andrew Cuomo, said that “trans people have been unfairly targeted and disproportionately policed for innocent, lawful conduct based solely on their appearance. Repealing the archaic ‘walking while trans’ ban is a critical step toward reforming our policing system and reducing the harassment and criminalization transgender people face simply for being themselves.”39 Similarly, Assembly member Amy Paulin supported the decision to repeal the statute by asserting that “[t]he arbitrary and discriminatory enforcement of the ‘walking while trans’ law has become an unbearable 34

Carl E. Heastie, Assembly Passes Repeal of the Walking While Trans Ban, NEW YORK ASSEMBLY (2021), https://nyassembly.gov/Press/?sec=story&story=9525.

35 Plaintiffs v. the City of New York, supra note 18, at 8.

36 Pamela Roby, Politics and Criminal Law: Revision of the New York State Penal Law on Prostitution, 83 (1969).

37 Campbel, supra note 16, at 1068.

38 States News Service, supra note 9.

39 Id.

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affront to justice and has led to the disproportionate targeting of some of the most marginalized people in our society, including women of color and members of the transgender community.”40 The justification for repeal that garnered the most support argued that the law’s premises had changed over the last four decades, rendering it no longer relevant or necessary.41 When the legislature first enacted this statute in 1976, they did so on the grounds that the harassing conduct of sex workers prevented others from accessing and enjoying public spaces.42 The repeal of section 240.37 brings to light such arguments, as it prioritizes civil rights protections, thereby neglecting the protection of public health and safety.

This imbalance tilts the scale in favor of civil rights while overlooking essential public well-being considerations. Allowing loitering for prostitution enhances the possibility of neighborhoods regressing to an occupation of “aggressively tawdry,” or sleazy, degrading, and often menacing sight of the sex industry.43 In the 1970s and 1990s, sex workers were often viewed and labeled as innately aggressive and harmful to pedestrians.44 The notion that individuals deserve pleasant surroundings within public spaces is not one to be overlooked. While it is crucial to recognize any progress in civil rights as a positive step forward, it becomes problematic when such advancements risk undermining overall social welfare. The current lawfulness of prostitution on the streets of New York highlights the need to delicately re-criminalize loitering for the purposes of prostitution in a manner that both prohibits the discriminatory violations of civil rights which corrupted section 240.37 and also negates a rise in prostitution that may jeopardize the welfare of New York’s citizens. Can New York lawmakers institute adequate language to strike a balance between these two contentions?

40

Id. Heastie, supra note 7.

42 Hendrick Wagenaar, Why Prostitution Policy (Usually) Fails and What to Do about It?, 6 SOCIAL SCIENCES 1, 9 (2017).

43 Carroll, supra note 2, at 35.

44 Struening, supra note 8, at 53.

41

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RATIONALE FOR REIMPLEMENTATION: N.Y. P.L. §240.37

A. People v. Smith (1978) During the initial scrutiny of section 240.37, the deliberations in People v. Smith (1978) shed light on why the fundamental principles embodied in such a statute must remain in place. This case considered the constitutionality of the statute, ultimately upholding it on appeal. Defendant Toni Smith had been arrested and charged with violating section 240.37—notably just 26 hours after the new loitering law went into effect. A police officer present as an eyewitness stated that on Eighth Avenue between 40th and 41st Streets, the defendant “approached three men who walked past, touched each man’s arm, and said something.”45 Simply put, Smith’s actions serve to exemplify how the loitering of sex workers fosters an environment where harassment and unseemly conduct prevail against unwilling victims. As the police officer continued to observe, he noted that the “third man accompanied the defendant into the building, emerging five or six minutes later.”46 It was at this point that the officer rightly arrested and charged Smith with violating section 240.37.47 Smith challenged the constitutionality of section 240.37. The lower court ruled that the statute was unconstitutional because it “granted unfettered discretion to the police in making arrests based solely on circumstantial evidence.”48Accordingly, the lower court dismissed the criminal complaint and declared the statute unconstitutional. 49 On appeal, the appellate court determined that the statute was constitutional despite disputes of vagueness since it “detailed the prohibited conduct and limited itself to one crime.”50 More importantly, it was found that loitering for the purpose of prostitution is “disruptive of the public peace in that certain persons engaged in such conduct in public places harass and interfere with the use and enjoyment by other persons of such public places, thereby constituting a danger to the public health and safety.”51 Similarly, it was stated that persons who engaged in loitering for the intents and purposes of prostitution had caused persons 45

People v. Smith, 407 N.Y.S.2d 462, 467 (N.Y. 1978).

Id. 47 Id. at Outcome Section.

48 Id. at 463.

49 Id. at 464.

50 Id. at Outcome Section.

51 Id. at 464.

46

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who venture into public places to be the unwilling victims of “repeated harassment, interference and assault upon their individual privacy.” 52 Allowing loitering for the intent and purpose of prostitution under the law also fosters the creation of unsafe public places. Likewise, “ordinary communities and commercial life of certain neighborhoods have become disrupted and have deteriorated.” 53 Following these points, the Appellate Division reversed and reinstated the case. Accordingly, the charges against Smith were reinstated.54 Similar findings in other jurisdictions corroborate Smith, showing that loitering by sex workers fosters harassment and unseemly conduct against unwilling victims. For example, in People v. Pulliam (1998), a case brought on appeal in San Diego County, California, a jury found defendant Sherrie Lynn Pulliam guilty of loitering in a public place with intent to commit an act of prostitution in violation of California Penal Code § 653.22. 55 Ms. Pulliam was described by the arresting officer as waving and yelling at cars.

After observing such obviously outward conduct, the arresting officer asked Ms. Pulliam what she was doing there, and she immediately confessed and was arrested.56 Both Smith and Pulliam permit us to further understand the potential ramifications to come if section 240.37 is not amended and reimplemented.

B. Fenster v. Leary (1967) Fenster v. Leary (1967) appears to support the repeal of section 240.37 but ultimately showcases a trend suggesting a new anti-prostitution law will eventually come about. For 179 years, New York State prosecuted sex workers by categorizing them as vagrants under N.Y. Code of Criminal Procedure section 887, colloquially known as a vagrancy law. Section 887 facilitated the swift round-up of ‘alleged prostitutes’ by police officers – strikingly similar to how the N.Y.P.D. unlawfully surveilled, stopped, questioned, frisked, searched, seized, and/or arrested individuals engaged in 52

Id. Id. 54 Id. 55 Karen Stuening, Walking While Wearing a Dress: Prostitution Loitering Ordinances and the Policing of Christopher Street, 3:16 STANFORD JOURNAL OF CRIMINAL LAW AND POLICY 16, 33 (2016).

56 Id. 53

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wholly innocent conduct under section 240.37. 57 Arrestee and petitioner Charles Fenster was arrested three times for vagrancy despite minimal factual evidence. The district court remarked that “[o]n each of the first two occasions plaintiff was, on the day of arrest, acquitted (emphasis added) on the ground that the prosecution failed to establish sufficient facts to support a conviction (emphasis added) of the plaintiff under the statute.” 58 Also reminiscent of section 240.37, the statute was found to be unconstitutional.

On July 7, 1967, the New York Court of Appeals declared section 887 unconstitutional by a vote of five to two on the grounds that the prohibited behavior “in no way impinges on the rights or interests of others” – that is, a statute proscribing such harmless conduct as a penal offense bears no substantial relationship to the prevention of crime or the preservation of public order.59 Yet interestingly enough, within the same year that section 887 was repealed, a new and stricter anti-prostitution law was implemented.60 As such, a new anti-prostitution law, under N.Y. P.L. section 230.00, went into effect on September 1, 1969.61 In order for a defendant to be found guilty under section 230.00, “the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, the following elements: That on or about (date), in the County of (County), the defendant, (defendant’s name), engaged, or agreed or offered to engage, in sexual conduct with another person in return for a fee.”62 In contrast to the utilization of sections 788 and 240.37, this new anti-prostitution statute establishes a notably high threshold for criminal prosecution. Implementing the requirement to prove an engagement, agreement, or offer to exchange a sexual favor in return for a fee safeguards against unconstitutional arrests by requiring concrete evidence. The repeal of section 788, coupled with its immediate replacement, underscores a compelling indication that a more stringent alternative should be implemented in lieu of the now-defunct section 240.37.

57

Struening, supra note 8, at 39.

Fenster v. Leary, 264 F. SUPP. 153, 154 (S.D.N.Y. 1966).

59 John Murtagh, Status Offenses and Due Process of Law, 36 FORDHAM LAW REVIEW 51, 52 (1967).

60 Struening, supra note 8, at 39.

61 Id. 62 N.Y. PEN. CODE § 230, supra note 1.

58

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REAPPRAISAL, REIMPLEMENTATION, AND ENFORCEMENT

A. Reappraisal Smith and Fenster suggest that a prostitution-based loitering law should be in operation. With Smith elucidating the consequences of its absence and Leary highlighting the legal precedent for reinstatement, it becomes evident that amending and reinstating section 240.37 is a compelling and logical course of action. However, many choose to believe that a prostitution-based loitering law is no longer relevant or necessary. 63 Firstly, the repeated attempts and successes of passing prostitutionrelated legislation – such as § 788 of the N.Y. Code of Criminal Procedure, as well as § 230.00 and § 240.37 of the N. Y. Penal Law– suggests that their existence is important and thus relevant. Even more significant is the perpetual prevalence of loitering for the purposes of prostitution in modern times. On March 16, 2024, a story detailing the troubling effects that spur from the presence of prostitution in Queens Borough was published. Within, it is stated that “The neighborhood has become so renowned for its prostitution that it has garnered the nickname ‘the market of sweethearts.’”64 Today, Roosevelt Avenue in Queens boasts a plethora of sex workers who “operate during all hours of the day, even as families walk by with their children in strollers, and often hang out in front of area supermarkets.”65 The article additionally cites that they “openly solicit sex from passersby.”66 In another article published by the City Journal, it is made clear that there has been a sharp rise in “the numbers and visibility of women openly offering sex for money.”67 As New York City-based reporter and editor Seth Barron stated on March 14, 2025, the repeal of section 240.37 represents “an abandonment

63

Heastie, supra note 7.

Michael Dorgan, AOC district neighborhood labeled ‘Third World’ as migrants clog streets and prostitutes overrun every block, FOX NEWS (2024), https://www.foxnews.com/politics/aoc-district-neighborhood-labeled-third-world-migrantsclog-streets-prostitutes-overrun-every-block.

65 Id. 66 Id. 67 Seth Barron, New York’s Prostitution Problem, CITY JOURNAL (2025), https://www.cityjournal.org/article/new-york-prostitution-decriminalization.

64

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of quality-of-life policing.” 68 To summarize, the argument that the phenomena of loitering for prostitution has decreased and, therefore, no longer warrants criminalization is empirically unfounded, as the repeal of 240.37 has made New York residents more vulnerable to disorder.

Permanently repealing section 240.37 grants sex workers the freedom to decide whether or not to loiter without fear of legal repercussions. As the sex industry increasingly moves online, loitering for prostitution has naturally declined in comparison to historic rates, creating the false illusion that it is no longer a relevant issue. Proactive prostitution-based loitering legislation is necessary to serve as a deterrent measure against the feasible ‘resurgence’ of street prostitution. Additionally, when taking into account the impact on unwilling passersby, an active prostitution-based loitering law would foster a feeling of safety and security in communities. Consequently, the welfare and quality of life of the general population would be vastly improved. However, as manifested from the previous version of section 240.37, the welfare of sex workers who are people of color or among the LGBTQIA+ population would disproportionately diminish. In order to reconcile the welfare of both communities, the amended version of section 240.37 must establish a stricter threshold to implicate an individual’s conduct as loitering for the purposes of prostitution. The appropriate revision of the statute would effectively deter loitering for the purposes of prostitution while ensuring the utmost accuracy in the prosecution of individuals engaged in lawless behavior, thus safeguarding the rights of all New Yorkers.

B. Reimplementation The contents of this Note serve to suggest what the proper amendments of section 240.37 should be. To protect transgender and cisgender women of color, among others, the potentiality for a violation of section 230.00 must be founded upon an accurate establishment of probable cause. As such, the first and most important suggestion is to fortify the requirements to prove probable cause. In assessing section 240.37, the Court of Appeals in Smith was on the right track when it emphasized that “it requires loitering plus 68

Seth Barron, How the radical left makes it hard to clear hookers from areas like Roosevelt Ave. in Queens, NEW YORK POST (March 14, 2021), https://nypost.com/2025/03/14/opinion/the-radical-left-is-making-it-hard-to-clear-hookersfrom-areas-like-roosevelt-ave-in-queens/.

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additional objective conduct evincing that the observed activities are for the [proscribed] purpose.”69 From here, it becomes apparent that there must be a higher legal standard of probable cause in order to establish sufficient evidence supporting a conviction.

The vagueness of section 240.37 enabled civil rights injustices to be carried out upon transgender and cisgender women of color. One of the primary objections from the NYPD notes that officers struggled to differentiate sex workers from others who are dressed promiscuously.

Distinguishing a sex worker from a non-sex worker on the mere basis of their clothing is clearly ineffective and suggests that officers should have stricter legal guidelines to follow when making a decision about the implications of an individual’s conduct.

Implementing more specific language on what “engaging passers-by in conversation” means is one amendment heeded from the aforementioned suggestions. 70 As it previously stood, this element of section 240.37 was vague, as it did not describe what type of conversation must be had to constitute a violation of the Statute. The main concern here is that, at the discretion of a police officer, a case can be built that deems nearly any conversation a violation of section 240.37. Although it is challenging to pinpoint specific conversational topics implicatory of prostitution, certain discussions unquestionably point to acts of prostitution and inform the establishment of probable cause—take conversations about money, for example. One may say, “I only have cash,” or inquire about how much something costs. Conversations regarding scheduling also raise suspicion.

Phrases such as “what about tonight” or talking about availability are some examples of how this may be expressed. Additionally, descriptions of sexual services offered would point towards a potential act of prostitution. An amendment to section 240.37 in regard to specifying what exact type of conversation indicates intent to engage in prostitution could read as follows: “Any person who… repeatedly attempts to engage passers-by in conversation regarding money, scheduling, sexual services, or any negotiations of the former.”

69 70

People v. Shelton, 519 N.Y.S.2d 102, 105 (Crim. Ct. N.Y. City. 1987).

New York Consolidated Laws, Penal Law - PEN § 240.37, supra note 11.

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C. Enforcement Amending the NYPD Patrol guide is a key step in addressing the systematic issues that rendered § 240.37 unconstitutional. The NYPD Patrol Guide currently lacks clear criteria regarding suggestive attire, as it informs officers “that an arrestee’s ‘clothing’ is ‘pertinent’ to the probable cause inquiry.” 71 Officers should not establish probable cause based solely on clothing choices. Firstly, this language should be removed from the NYPD Patrol guide. Training programs should then be instituted for NYPD officers that involve collaborating with sex worker advocacy organizations to enhance officers’ understanding of the indications of solicitation in order to promote just enforcement practices. Furthermore, surveillance techniques and the incorporation of specific information on behaviors indicative of solicitation can aid officers in making more informed judgments, minimizing reliance on subjective assessments. Without these changes, there is a risk of reverting to past practices and disproportionately targeting marginalized communities.

IV.

CONCLUSION

Loitering laws like section 240.37 have historically been riddled with issues. However, this does not imply that a new one should be problematic as well. The amendment and reimplementation of section 240.37 is the optimal solution to minimize prostitution-based loitering, balancing societal welfare with civil liberties. While past injustices highlight the need for reform, the complete repeal of section 240.37 risks the resurgence of societal disruptions associated with prostitution. By implementing precise legal language and stringent enforcement measures, lawmakers can mitigate civil rights violations while safeguarding societal welfare and public spaces.

Collaborative governance with sex worker advocacy organizations aimed at addressing the inadequacies of the N.Y.P.D. Patrol Guide ensures informed policy design and effective implementation. Reimplementing a statute akin to section 240.37, with careful attention to its language and enforcement,

71

The City of New York Police Department, supra note 22.

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holds the potential to address societal concerns while upholding civil liberties.

Reimplementation, with precise language and stringent enforcement, offers a path forward. ***

101

NOTE

LEVELING THE PLAYING FIELD: INFORMATION, PROOF, AND LANGUAGE FOR PAY EQUITY Bianca Thakur* This legal note examines the persistent issue of the gender pay gap in the United States, tracing its history from the enactment of the Equal Pay Act in 1963 to the present day. Despite legislative efforts to address pay inequity, significant wage disparities continue to exist, particularly affecting women of color. The note analyzes key legislation, including the Equal Pay Act, Title VII of the Civil Rights Act (1964), and the Bennett Amendment (1974), highlighting their strengths and limitations in addressing pay discrimination.

Three pivotal measures are proposed to mitigate the gender pay gap: implementing Salary Disclosure Laws, shifting the Burden of Proof to employers, and expanding language parameters in pay equity legislation.

These initiatives aim to rectify informational imbalances, promote transparency, and establish a more equitable framework for identifying and rectifying gender-based pay differentials. While progress has been made, the gender pay gap remains a pressing issue requiring continued advocacy and reform. The note also explores the concept of pay equity governance, emphasizing the importance of mandatory reporting and sustainable privatepublic partnerships. It advocates for a new governance approach that encourages collaboration among stakeholders and leverages technological breakthroughs to drive meaningful change beyond mere compliance. The proposed solutions offer a comprehensive strategy to combat wage discrimination and move closer to achieving pay equity for all individuals, regardless of gender.

*

B.A. Candidate in Economics and English, Fordham College at Rose Hill, Class of 2025.

I would like to thank my family and friends for their endless support throughout the process of writing my first note. I am grateful to the FULR Editorial Board for all of their valuable feedback, suggestions, and insights.

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I. II. III. IV.

INTRODUCTION………………………………………………………….103 HISTORY…………………………………………………………………106 RECENT DEVELOPMENTS IN LAW.………………………………………107 CURRENT LAWS…………………………………………………………109 A. Equal Pay Act of 1963 ……………………………………………109 B. Title VII of the Civil Rights Act of 1964…….…………………….110 C. Bennett Amendment………………………………………………111 V. SOLUTION: CHANGE IN LAW ……………………………………………112 A. Salary Disclosure Laws……………………………………………112 B. Shift in Burden of Proof……………………………………………113 C. Expansion of Language Parameters .………….…………………114 VI. PAY EQUITY GOVERNANCE: ACCOUNTABILITY BEYOND LITIGATION ….116 A. Hidden Figures and Mandatory Reporting ………………………116 B. Sustainable Private-Public Pay Equity Partnerships…………….117 VII. CONCLUSION……………………………………………………………118 I.

INTRODUCTION

Congress began its efforts to address the gender pay gap with the enactment of the Equal Pay Act in 1963 (“EPA”). 1 The EPA prohibits discriminating “on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work on jobs.”2 The objective of this act was to gradually dismantle workplace salary structures built on the principle that women should be paid less than men. However, sixty years later, gender pay differentials remain a salient concern across numerous industries on a global scale.3 According to the U.S. Census Bureau, women who work full-time in the United States are paid 82 cents for every dollar that men are paid, with the disparity being most pronounced among women of color.4 Black women receive compensation equivalent to 64 cents for every dollar earned by white 1

29 U.S.C. § 206 (2018) Id. § 206(d)(1).

3 History.com Editors, Equal Pay Act, HISTORY.COM, https://www.history.com/topics/womens-history/equal-payact#:~:text=The%20Equal%20Pay%20Act%20was%20among%20the%20first%20federal %20laws,of%20economic%20opportunity%E2%80%9D%20for%20women.

4 Earlene K.P. Dowell, Women Consistently Earn Less Than Men, U.S. CENSUS BUREAU (2023), https://www.census.gov/library/stories/2022/01/gender-pay-gap-widens-as-womenage.html.

2

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men, while Hispanic women receive 57 cents for each dollar earned by white men.5 Historically, occupational shifts have highlighted these disparities. In 1950, the majority of biologists, designers, ticket agents, and recreation workers (such as park rangers and camp leaders) were men.6 By 2000, these occupations were predominantly filled by women, and their median hourly wages, adjusted for inflation, had fallen by 18% for biologists, 34% for designers, 43% for ticket agents, and 57% for recreation workers. 7 Conversely, the role of the computer programmer, which was mostly held by women in 1950 and was previously seen as a glorified typing job, gained prestige and saw an increase in real median wages as more men entered the field.8 In the U.S. economy, many occupations are “gendered,” meaning they are strongly associated with one gender and predominantly performed by either men or women. For example, women mostly work as nurses, teachers, and social workers, while men mainly hold positions as engineers, firefighters, and electricians.9 Research has revealed significant gender segregation in the U.S. workforce, showing that nearly half of all women or men would need to switch occupations to achieve gender balance. Jobs requiring the same level of education and experience often exhibit pay disparities, with those typically held by men offering higher wages than those typically held by women.10 Of the thirty highest-paying jobs in the country, twenty-six are primarily occupied by men, whereas twenty-three of the thirty lowest-paying jobs are mostly held by women.11 Additionally, historical wage data for biologists, designers, ticket agents, and recreation workers demonstrate that when 5

Id. Claire Cain Miller, As Women Take Over a Male-Dominated Field, the Pay Drops, THE NEW YORK TIMES (2016), https://www.nytimes.com/2016/03/20/upshot/as-women-takeover-a-male-dominated-field-the-pay-drops.html.

7 Asaf Levanon, Paula England, and Paul Allison, Occupational Feminization and Pay: Assessing causal Dynamics Using 1950-2000 U.S. Census Data, UNIVERSITY OF NORTH CAROLINA (2009), https://statisticalhorizons.com/wpcontent/uploads/2012/01/88.2.levanon.pdf.

8 Miller, supra note 6.

9 U.S. Bureau of Labor Statistics, Women in the Labor Force: A Databook (2022), https://www.bls.gov/opub/reports/womens-databook/2022/.

10 Francine D. Blau and Lawrence M. Kahn, The Gender Wage Gap: Extent, Trends, and Explanations, NAT’L BUERAU OF ECON. RESEARCH (2016), https://www.nber.org/system/files/working_papers/w21913/w21913.pdf.

11 Emily Liner, A Dollar Short: What’s Holding Women Back from Equal Pay?, THIRD WAY (2016), http://thirdway.imgix.net/pdfs/a-dollar-short-whats-holding-women-backfrom-equal-pay.pdf.

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women enter occupations previously dominated by men, wages in those fields tend to decline. This phenomenon, known as the “polluting” effect, highlights how an increase in the proportion of women in an occupational category leads to decreased wages for that particular position.12 Although the gender pay gap’s size may vary depending on the criteria used, economic data consistently shows that a gender pay gap exists even when all relevant factors are considered.13 Matters concerning employer-employee relationships have been significant throughout history, often prompting new social movements and policy reforms. Despite these legislative and organizational efforts, they have not produced substantial results and have failed to adequately address the gender pay gap. This issue has profoundly influenced employment practices for over sixty years and remains a persistent challenge.14 Previous measures to address this problem have proven ineffective, pointing to the urgent need for legislative reforms to combat gender-based compensation discrimination.

Women experiencing pay discrimination, along with others in support, must advocate for changes in employer practices by asserting their rights and voicing shared concerns. While challenges persist, the current climate still offers meaningful opportunities for continued advocacy and progress..15 This note argues that an effective strategy for mitigating the gender pay gap and working towards just pay equity involves addressing knowledge disparities through three pivotal measures: implementing Salary Disclosure Laws, a Shift in the Burden of Proof, and expanding language parameters.

These proposed initiatives are posited to rectify informational imbalances, promote transparency in compensation structures, and establish a more equitable framework for identifying and rectifying gender-based pay differentials.

12

Lisa Catanzarite, Race-Gender Composition and Occupational Pay Degradation, OUP ACADEMIC (2014), https://academic.oup.com/socpro/article-abstract/50/1/14/2277567.

13 Elise Gould, Jessica Schieder, and Kathleen Geier, What is the Gender Pay Gap and is it Real?, ECON. POLICY INSTITUTE (2016), https://www.epi.org/publication/what-is-thegender-pay-gap-and-is-it-real/.

14 Sara Estep, What to Know About the Gender Wage Gap as the Equal PayAact Turns 60, CENTER FOR AMERICAN PROGRESS (2023), https://www.americanprogress.org/article/whatto-know-about-the-gender-wage-gap-as-the-equal-pay-act-turns-60/.

15 Shengwei Sun & Ariane Hegewisch, Equal Pay Policies and the Gender Wage Gap, INSTITUTE FOR WOMEN’S POLICY RESEARCH (2022), https://iwpr.org/wpcontent/uploads/2022/01/Equal-Pay-Policies-and-the-Gender-WageGap_Compilation_20220125_FINAL.pdf.

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HISTORY

Before the enactment of the Equal Pay Act (EPA), women’s participation in the workforce significantly lagged behind that of men.16 In the early 20th century, women constituted only approximately twenty percent of the American workforce. 17 During this period, the Supreme Court contended with balancing protective policies for women in employment against their contractual freedoms with employers, often yielding conflicting court decisions. 18 For instance, in Muller v. Oregon, the Court assessed the constitutionality of an Oregon law mandating shorter work hours for women.19 The Court upheld the law, asserting it was permissible under the Fourteenth Amendment, citing the state’s interest in preserving women’s physical well-being.20 Conversely, in Adkins v. Children’s Hospital of the District of Columbia, the Court invalidated a law setting minimum wages for women and minors, emphasizing that it infringed upon the freedom of contract, or the right of individuals to freely negotiate and enter into agreements without government interference, for those capable of negotiating such agreements.21 However, in West Coast Hotel Co. v. Parrish, the Court, faced with similar issues as in Adkins, upheld a minimum wage law for women, stressing the state’s interest in protecting their health and morals.22 During World War II, women’s involvement in the workforce surged, with approximately six million women joining to support the economy and war effort.23 Despite performing jobs traditionally held by men, women were paid significantly less.24 This led to demands for equal pay and labor disputes, prompting President Franklin D. Roosevelt to establish the National War Labor Board, which advocated for equal pay for women replacing male workers.25 16

Equal Pay Act of 1963, 29 U.S.C. § 206(d).

Stanford Gender Research, A Historical View of the American Workplace, https://gender.stanford.edu/news/historical-view-american-workplace 18 Id. 19 Muller v. Oregon, 208 U.S. 412, 416 (1908).

20 Id. at 417-18.

21 Adkins v. Children’s Hospital of D.C., 261 U.S. 525, 539-40 (1923).

22 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

23 Nat’l Archives & Records Admin., Women in Work Force During World War II, NAT’L ARCHIVES & RECORDS ADMIN. (2016), https://www.archives.gov/education/lessons/wwiiwomen.html.

24 Id. 25 Id. 17

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Post-war, women faced displacement and wage reductions as men returned to the workforce. Although labor unions and women’s groups made concerted efforts, bills advocating for equal pay failed until the passage of the EPA in 1963.26 Subsequent legislation, such as the Civil Rights Act of 1964 further bolstered gender equality laws.27 Congress continued to enact laws protecting women in the workplace, including the Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act of 1991, in order to further ensure gender equality and workplace fairness.28 III.

RECENT DEVELOPMENTS IN LAW

In 2007, the U.S. Supreme Court granted certiorari to review the Eleventh Circuit’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc.29 The plaintiff, Lilly Ledbetter, was among a minority of female supervisors at the Goodyear plant in Gadsden, Alabama. Following two decades of employment and facing repeated instances of sexual harassment, Ledbetter discovered significant pay differentials between herself and her male counterparts after receiving an anonymous note detailing their salaries. 30 Despite consistent raises based on performance evaluations, Ledbetter’s salary remained markedly lower than that of male employees in similar positions.31 In July 1998, Ledbetter filed a formal charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging sex-based salary disparity. Following an early retirement later that year, Ledbetter filed a lawsuit under Title VII of the Civil Rights Act of 1964 and the Equal Pay 26

Women Workers in World War II, METROPOLITAN STATE UNIVERSITY OF DENVER, archived at https://web.archive.org/web/20210401000000/https://msudenver.edu/camphale/thewomens armycorps/womenwwii/ (citing Susan M. Hartmann, The Home Front and Beyond: American Women in the 1940s (1982)).

27 Id. 28 Issuing Authority – This guidance document was issued upon approval by vote of the U.S. Equal Employment Opportunity Commission; this guidance document was issued upon approval by vote of the U.S. Equal Employment Opportunity Commission, Enforcement guidance on pregnancy discrimination and related issues, US EEOC, https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-andrelated-issues.

29 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

30 Id. 31 Id.

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Act (EPA), claiming sex discrimination.32 While the jury found no evidence of involuntary transfer or retaliation, they awarded Ledbetter substantial damages for the Title VII pay claim. However, the Eleventh Circuit reversed the decision, citing Ledbetter’s failure to file her Title VII claim within the statutory 180-day period preceding her EEOC complaint. 33 The court concluded that Ledbetter could only recover for disparate pay if she proved intentional discrimination in the specific pay decision made within the limitations period. 34 As Ledbetter failed to provide sufficient evidence of pretextual discrimination, the court directed the dismissal of her complaint.

The Supreme Court, in a 5-4 decision, upheld the Eleventh Circuit’s ruling, emphasizing the difficulty in identifying concealed compensation disparities.35 Despite this decision, it acknowledged employees’ challenges in recognizing and addressing such discrimination, particularly concerning hidden salary information.36 The decision highlighted a gap in existing civil rights legislation, prompting legislative action to address workplace discrimination. Subsequently, President Barack Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law.37 This legislation amended the Civil Rights Act of 1964, allowing employees to file equal-pay lawsuits within 180 days of each discriminatory paycheck. 38 The Act directly overturned the Ledbetter decision, enabling individuals like Ledbetter to challenge unequal pay effectively.39 IV.

CURRENT LAWS

In the ongoing efforts to combat gender-based wage disparities, several key federal laws play crucial roles. Among them are the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, and the Bennett Amendment.

Each of these statutes addresses different aspects of wage discrimination and sets out specific frameworks for addressing and resolving claims of unequal pay.

32

Id. Id. 34 Id. 35 Id. 36 Id. 37 Lilly Ledbetter Fair Pay Act of 2009, PUB. L. NO. 111-2, 123 STAT. 5 (2009).

38 Id. 39 Id. 33

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A. Equal Pay Act of 1963 Congress enacted the Equal Pay Act of 1963 to address widespread employment discrimination in the private industry, particularly the entrenched belief that men should be paid more than women despite performing the same duties.40 To establish a prima facie case under the Act, an employee must demonstrate, at first glance, that an employer pays different wages to opposite sexes for substantially equal work requiring equal skill, effort, and responsibility under similar conditions. This means that the employee must present sufficient initial evidence of wage disparity based on sex for the case to move forward without needing further proof at that stage.41 Notably, the Act is silent on the Burden of Proof, though legislative history suggests it falls on the employee. Moreover, proof of discriminatory intent is not required for the plaintiff to prevail under the Equal Pay Act, triggering a presumption of discrimination upon establishing a prima facie case.42 An employer can justify unequal compensation between genders by citing a “legitimate business reason.” 43 The Act provides four court-approved exceptions, including seniority, merit, productivity-based systems, or differentials based on factors other than sex. Once the employee demonstrates that the employer pays one sex more than the other, the burden shifts to the employer to prove that the pay difference is warranted under one or more of the Act’s exceptions. 44 The plaintiff can rebut the employer’s affirmative defense by showing that the stated reasons are a pretext for discrimination.45 The United States Court of Appeals for the Second Circuit has recognized that Congress enacted the Equal Pay Act to address the disadvantaged bargaining position of many women and combat unfair employer exploitation of cheap labor. At the core of the Act lies the fundamental policy goal of ensuring equal pay for equal work.46 The objective of equal pay legislation is not to lower men’s wages to women’s levels but to elevate women to the 40

Facts About Equal Pay and Compensation Discrimination, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/eeoc/publications/fs-epa.cfm.

41 Id. 42 Id. 43 Bentivegna v. People’s United Bank, No. 2:14-cv-599 (ADS)(GRB), 2017 WL 3394601, at *16 (E.D.N.Y. 2017).

44 90 Corning, 417 U.S. at 196.

45 Id. 46 Id.

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same pay scale as men where discrimination persists. Remedies under the Equal Pay Act encompass compensatory and punitive damages, attorney’s fees, back payment of wages and compensation, and injunction proceedings.47 B. Title VII Title VII of the Civil Rights Act of 1964 is a federal statute prohibiting employers from discriminating based on protected characteristics such as sex, race, color, national origin, and religion. 48 Before an employee initiates a claim under Title VII, the Equal Employment Opportunity Commission (EEOC) must attempt to resolve the alleged unlawful employment practice through informal methods like conference, conciliation, and persuasion. 49 Upon determining that reconciliation is not achievable and the employee’s claim has merit, the employee may pursue legal action in federal court.

Congress has mandated the EEOC to seek reconciliation before lawsuits under Title VII, with courts having the authority to review the EEOC’s fulfillment of this obligation. Despite this mandate, the EEOC has discretion in selecting the informal methods.50 Regardless of the chosen approach, the EEOC must inform the employer of the employee’s claim and provide an opportunity for discussion. To establish a prima facie case of disparate pay under Title VII, a plaintiff must demonstrate membership in a protected class and receipt of lower compensation than similarly situated nonmembers performing substantially equal work.51 The legal standard for analyzing unequal pay claims under Title VII mirrors that of the Equal Pay Act, but Title VII additionally requires the plaintiff to prove discriminatory intent. Discriminatory animus exists when an employer’s actions demonstrate intent to discriminate against the employee. If the plaintiff successfully establishes a prima facie case, the burden shifts to the defendant-employer to provide a legitimate, nondiscriminatory reason for the pay disparity.52 47

Id. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.

49 Id. 50 42 U.S.C. § 2000e-5(f)(1) 51 Id. 52 Employee Need Not Prove Employer Animus as an Element of a Disability Discrimination Claim, 37 NO. 4 CAL. TORT REP. NL 4.

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Should the defendant satisfy this burden, the presumption of discriminatory intent dissipates. The burden then returns to the plaintiff to show that the defendant’s actions resulted from impermissible discrimination.53 To do so, the plaintiff must demonstrate that the employer’s explanation was not the sole reason for the pay discrepancy and that an impermissible factor influenced the decision. More than merely disputing the employer’s reasons is required; the plaintiff must present evidence supporting a reasonable inference of prohibited discrimination. 54 While the burdenshifting framework provides a structure for analyzing pay discrimination claims, it is important to consider how specific legislation addresses potential conflicts between different anti-discrimination laws.

C. Bennett Amendment The “Bennett Amendment,” a technical revision to Title VII of the Civil Rights Act of 1964, was enacted to address potential conflicts between Title VII and the Equal Pay Act of 1964 (EPA).55 This amendment clarifies that it is not considered an unlawful employment practice under Title VII for an employer to differentiate wages based on sex if the Equal Pay Act permits such differentiation.56 In Washington County v. Gunther, the Supreme Court interpreted the Bennett Amendment to mean that Title VII only incorporates the affirmative defenses of the Equal Pay Act, not its prohibitions requiring equal pay for equal work. 57 Essentially, the Bennett Amendment ensures consistency in interpreting similar provisions in the EPA and Title VII. In other words, claims of sex-based wage discrimination can be pursued under both the EPA and Title VII, even if no member of the opposite gender holds a comparable but higher-paying position, as long as the challenged wage rate is not exempted under the EPA’s affirmative defenses, such as those related to seniority, merit, production quantity, quality, or other non-sex factors.

53

Civil Rights Division, Section VI- proving discrimination- intentional discrimination, U.S. DEP’T OF JUSTICE (2021), https://www.justice.gov/crt/fcs/T6Manual6.

54 Robert Belton, Burdens of Pleading and Proof in Discrimination Cases, 35 VANDERBILT L. REV 1205, 1255-1256 (1981), https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2930&context=vlr.

55 Walter v. KFGO Radio, 518 F. SUPP 1309, 1316 (D.N.D. 1981).

56 Id. 57 Washington County v. Gunther, 452 U.S. 161 (1981).

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SOLUTION: CHANGE IN LAW

It is irrefutable that since the inception of the Equal Pay Act (EPA) in 1963, aimed at rectifying gender pay disparities, the United States has witnessed legislative endeavors to address the issue, albeit without achieving complete success. Despite advancements in legal frameworks, there remains a persistent gender wage gap, necessitating further legislative action.

Consequently, advocating for two proposed amendments to existing laws are potential remedies to effectively combat and ultimately eliminate the gender pay gap.

A. Salary Disclosure Laws An employee’s salary is typically regarded as confidential information shared between them and their employer, often only disclosed to close family members, spouses, or financial advisors.58 Employees are generally hesitant to share this information with others, including colleagues, making it challenging for a female employee to identify potential discriminatory practices by her employer regarding compensation.59 Currently, there exists no legislation prohibiting employers from disclosing employee compensation. 60 Introducing laws mandating salary disclosure for employees in similar roles could narrow the gender pay gap.

Such legislation would provide employees with direct insight into whether they are experiencing discrimination in compensation. Clear statements from employers serve as invaluable evidence for employee plaintiffs, facilitating the challenging Burden of Proof, particularly when demonstrating an employer’s discriminatory intent.61 Consider the plight of an employee suspecting unequal pay compared to a male counterpart in a similar position. Without resorting to an 58

Your right to discuss wages, NATIONAL LABOR RELATIONS BOARD, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/your-rights-to-discusswages.

59 Id. 60 Zoe B. Cullen, Is Pay Transparency Good?, NAT’L BUREAU OF ECON. RESEARCH (2023), https://www.nber.org/papers/w31060.

61 Alice Orchiston, For Women Fighting the Gender Pay Gap Discrimination Law is Limited, CONVERSATION, http://theconversation.com/for-womenfighting-the-gender-paygap-discrimination-law-is-limited-89918

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uncomfortable conversation with the colleague about their salary, the employee faces difficulty in gathering evidence to support their suspicion.

Directly requesting compensation records from the employer is also daunting and may lead to strained employer-employee relationships, especially if litigation is considered. 62 Implementing salary disclosure laws mandating employers to reveal employees’ salaries would effectively notify employees of potential discrimination. With such laws in place, employers would likely refrain from discriminatory compensation practices, thus contributing to the closure of the gender pay gap.

B. Shift in Burden of Proof Should the law remain unchanged regarding the disclosure of workers’ salaries to fellow employees, would advocating for a judicial shift of the initial Burden of Proof onto employers rather than employees dissuade employers from engaging in discriminatory practices against female workers?

Echoing sentiments articulated within Justice Ginsburg’s dissent in Ledbetter v. Goodyear Tire & Rubber Co., Inc., concealed pay discrimination, mainly when it manifests through more significant raises for male counterparts, presents challenges for female employees in discerning adverse employment decisions. 63 Requiring employers to assume the burden in wage discrimination cases minimally burdens the employer, who can readily furnish salary documentation of other employees during litigation. In support of this approach, some jurisdictions, like New Jersey, contemplate shifting this burden on employers. For instance, New Jersey’s proposed bill (S.B. 992), introduced in 2016, establishes this presumption when employees of one gender receive lower wages and benefits for substantially similar work compared to another gender.64 To rebut this presumption, employers must demonstrate that the wage disparity is justified by valid reasons outlined by the law, such as seniority or merit systems65 Moreover, employers must prove that such justifications do not perpetuate gender-related disparities and are genuinely job-related. Failure to 62

Id. Ledbetter, at 650 (2007) (Ginsburg, J., dissenting).

64 Changes in N.J. Law Against Discrimination Would Put the Burden of Proof on Employers, ARCHER LAW, https://www.archerlaw.com/changes-in-n-j-law-againstdiscrimination-would-put-the-burden-of-proof-on-employers/.

65 Id. 63

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meet these criteria renders the employer liable for damages and penalties.66 Despite the setback in New Jersey’s Senate regarding the advancement of S.B. 992, which faced delays in legislative approval, acknowledging the Burden of Proof issue in gender discrimination claims is a promising development. 67 Enacting legislation akin to New Jersey’s proposal would constitute a significant stride toward narrowing the gender pay gap and upholding the rights of female employees. It is important for states to advocate and champion for such legislation and take decisive action working toward eliminating the wage gap.68 C. Expansion of Language Parameters Contemporary pay equity reforms extend beyond mere salary inquiries and sharing practices to redefine the concept of equity itself, challenging conventional distinctions between wage gaps and discriminatory practices.

Several states have introduced legislation shifting the focus from “equal work” to “comparable” or “substantially similar” work, thereby requiring employers to justify gender-based wage differentials with more transparent criteria.

Massachusetts’ 2016 Equal Pay Act expressly disavows the sole reliance on job titles or descriptions for comparability determination. Furthermore, some states permit cross-location comparisons of employees, even if they work at different establishments.

At the federal level, the Lilly Ledbetter Fair Pay Act of 2009 seeks to broaden the scope of equal pay by addressing wage discrimination, while the Equal Pay Act of 1963 established foundational principles for equal pay for equal work. Although the Equal Pay Act initially endorsed the “equal skill, effort, and responsibility” standard, Congress deliberated and dismissed the concept of “comparable work.”69 The Equal Pay Act’s “equal work” standard currently balances strict job identity requirements and broader job comparability. Courts, guided by this standard, evaluate whether jobs share a significant commonality in tasks rather than absolute identity.70

66

Id. Id. 68 Id. 69 Equal Pay Act of 1963, 29 U.S.C. § 206 (d).

70 Deborah Thompson Eisenberg, A Market-Based Approach to Pay Discrimination, 43 ARIZ. ST. L. J. 953, 971 (2011).

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Interpretations of the Equal Pay Act’s “equal work” standard vary among courts, resulting in divergent outcomes. Some courts, exemplified by Laffey v. Northwest Airlines Inc. and Odomes v. Nucare, Inc., adopt an expansive view, equating substantially similar job roles despite nominal differences.71 72 73 Conversely, other circuits, such as the Eleventh and Seventh Circuits, apply a stricter interpretation, discerning disparities based on skill complexity and environmental factors.74 Professor Deborah Eisenberg contends that the stringent application of the “equal” work standard limits the Act’s efficacy, particularly for professional women in supervisory roles. 75 Recent state reforms offer broader comparisons among workers across various industries to address these shortcomings, facilitating legal recourse for women in diverse occupations. For instance, Maryland’s Equal Pay for Equal Work Act prohibits “mommy tracking”– a practice that involves relegating women, particularly mothers, to lower-level positions or part-time work due to assumptions about their availability and commitment– while expanding the scope of prohibited disparities.76 This compels employers to rectify internal disparities and inform employees of advancement opportunities. 77 These reforms signal a dual-purpose approach aimed at expanding legal protections and inducing employers to address internal disparities and information asymmetries.

VI.

PAY EQUITY GOVERNANCE: ACCOUNTABILITY BEYOND LITIGATION

A. Hidden Figures and Mandatory Reporting Recent legislative reforms and court decisions aimed at advancing pay equity primarily focus on reversing the flow of information in the workplace.

71

Brennan v. City Stores, Inc., 479 F.2d 235 (5th Cir. 1973).

Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C. Cir. 1984).

73 Odomes v. Nucare, Inc., 653 F.2d 246, 247 (5th Cir. 1981).

74 Id. 75 Eisenberg, supra note 70.

76 Jennifer Kingson, The Mommy Track: How Career Paths for Women Differ, THE NEW YORK TIMES (Jan. 12, 1988).

77 Workforce Bulletin, Maryland Expands State Equal Pay Act and Broadens Employees’ Right to Discuss Wages (May 23, 2016), https://www.workforcebulletin.com/marylandexpands-state-equal-pay-act-and-broadens-employees-right-to-discuss-wages.

72

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State laws increasingly prohibit employers from inquiring about or relying on salary history while preventing them from suppressing employee discussions about salaries.78 These efforts show promise, with many leading American companies addressing gender pay inequalities and more employees taking legal action against employers who fail to address these disparities.

However, these reforms need more comprehensive efforts to educate employees and employers about pay equity, encourage transparency, and incentivize employers to take proactive steps to close the pay gap.79 The current solutions primarily involve bans and prohibitions, such as banning distorted information during hiring processes and prohibiting the silencing of employees regarding salary discussions.80 While these reforms address certain issues, they do not include initiatives to enhance transparency and collaboration between public and private sectors, which are essential for enabling employees to compare employers and motivating employers to evaluate their practices. 81 Mandatory reporting of pay data by employers serves multiple purposes: enhancing compliance and enforcement by administrative agencies, empowering employees to make informed decisions, and encouraging employers to self-assess and improve their practices.82 While the United States has faced setbacks in expanding pay transparency, other countries like the United Kingdom and Germany have implemented similar measures with positive outcomes. These initiatives highlight hidden disparities and encourage accountability in addressing gender pay discrimination. Despite concerns raised by opponents regarding efficacy and feasibility, the overall global response to these reforms has been positive. The movement towards pay equity governance through increased transparency and accountability is crucial for addressing gender pay disparities. While challenges remain, initiatives like mandatory reporting of pay data and efforts to promote transparency are essential to achieving pay equity in the workforce.

78

20/20 Foresight, Salary History Bans: An Employer’s Guide, 20/20 FORESIGHT (2024), https://2020-4.com/salary-history-bans-an-employersguide/#:~:text=Employers%20relied%20on%20it%20as,history%20information%20from% 20job%20applicants.

79 Laura Weber, Why Employers are Making Pay Equity a Reality, THE WALL STREET JOURNAL (Sept. 26, 2016), https://www.wsj.com/articles/why-employers-are-making-payequity-a-reality-1474882202.

80 Id. 81 Id. 82 Id.

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B. Sustainable Private-Public Pay Equity Partnerships Legal reforms in antidiscrimination law prompt proactive measures from private actors, transcending mere compliance. These reforms, viewed through a governance lens, signify a shift from traditional adversarial command-and-control approaches toward collaborative private-public frameworks. This new governance model redefines the roles of government, industry, and society, emphasizing shared responsibility in achieving policy objectives. It encourages multiple stakeholders to engage in governance, promoting “a downward and outward” movement of responsibilities to states, localities, and the private sector.83 The new governance approach that emerged in the 2000s underscores the importance of institutional design and private-public cooperation for effective reform. 84 It assesses the comparative advantages of various regulatory modes, the involvement of diverse stakeholders, and the behavioral mechanisms that drive reform initiation and sustainability. This approach has proven successful in environmental law, occupational safety, and financial regulation.85 Addressing pay equity through a broader approach involves tackling systemic workplace dynamics, akin to addressing a public health issue rather than blaming individual bad actors.86 In 2016, a hundred leading American companies committed to closing the wage gap by reviewing and adjusting their pay practices. Companies like Adobe, Microsoft, and Apple have already made notable progress in achieving pay equity within their organizations.87 Private sector initiatives to surpass regulatory requirements often set precedents for others to follow, creating a positive ripple effect in business leadership. For instance, thousands of companies have pledged to achieve equal pay, and cities like Boston have launched these types of partnerships to 83

Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Comtemporary Legal Thought, 89 MINN. L. REV. 342, 381, https://core.ac.uk/download/pdf/217211732.pdf.

84 Ilir Haxhi, An Institutional Perspective on Corporate Governance, OXFORD RESEARCH ENCYCLOPEDIAS, BUSINESS, AND MANAGEMENT (2023), https://www.researchgate.net/publication/372468049_An_Institutional_Perspective_on_Co rporate_Governance.

85 Id. 86 Id. 87 Id.

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address pay disparities.88 Moreover, recent state law reforms incentivize selfmonitoring through requirements or incentives for internal audits on salary structures. Technology is pivotal in facilitating pay equity efforts by making data analysis and compliance more accessible and efficient for employers.

Software solutions like Syndio Solutions enable organizations to effectively identify and address pay equity concerns. Democratizing access to analytics empowers employers to ensure fair compensation practices and fosters transparency within the workforce.89 A comprehensive pay equity governance regime not only promotes gender equality but also enhances procedural fairness and overall well-being in the workplace. Pay transparency improves job search efficiency and relocation decisions while contributing to the broader goals of efficiency and fairness in the labor market. The new governance model offers a holistic approach to advancing pay equity and other social objectives by integrating policy domains and fostering continuous learning.

VII.

CONCLUSION

Despite legislative advancements made since the enactment of the Equal Pay Act of 1963, the gender pay gap remains a persistent issue, necessitating further reform. Over the years, the legal landscape has evolved, with significant court decisions and legislative actions shaping the framework for addressing pay disparities based on gender. Recent developments, such as the Lilly Ledbetter Fair Pay Act of 2009, have sought to rectify shortcomings in existing laws and provide avenues for individuals to challenge unequal pay effectively. However, notable gaps in the current legal framework still hinder progress towards achieving pay equity. To address these shortcomings, this Note proposes several solutions to promote transparency, shift the Burden of Proof onto employers, and expand the parameters for assessing pay differentials. These measures, including salary disclosure laws, a shift in the burden of proof, and the expansion of language parameters, are integral components of a comprehensive strategy to combat the gender pay gap effectively.

88

Id. Syndio, Fairness at work: Workplace equity platform: HR analytics, SYNDIO (2024), https://synd.io/.

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Creating sustainable private-public partnerships through a new governance approach holds promise in driving meaningful change beyond mere compliance. By encouraging collaboration among stakeholders and leveraging technological advancements, such partnerships can promote transparency, accountability, and fairness in compensation practices.

Furthermore, initiatives like mandatory reporting of pay data and efforts to promote transparency are essential steps toward achieving pay equity in the workforce.

Overall, while significant strides have been made in addressing the gender pay gap, there is still much work to be done. By implementing targeted reforms and fostering collaborative efforts between the public and private sectors, we can move closer to realizing the goal of pay equity for all individuals, irrespective of gender. It is imperative that we continue to advocate for change and push for reforms that promote fairness, equality, and transparency in the workplace.

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