Professor Yelnosky Addresses Federal Judges on Racial Bias

Professor Michael Yelnosky recently traveled to New York to address a group of approximately 50 federal judges from across the country at the Workshop on Employment Law co-sponsored by the Federal Judicial Center and Center for Labor and Employment Law at NYU School of Law.

His presentation focused on the emerging body of social science evidence demonstrating that a substantial majority of whites harbor unconscious or implicit bias in favor of whites and against blacks.  The research into this phenomenon and the relationship between these implicit biases and actual discriminatory behavior is in its infancy but it has the potential to shake the foundation of Title VII doctrine, which requires a plaintiff to show the employer engaged in intentional discrimination. 

Professor Yelnosky’s interest in this research is part of his longstanding scholarly interest in the limits of, and alternatives to, traditional Title VII enforcement.  For example, he has explored the use of “testers,” matched pairs of applicants for employment distinguishable only by their race or sex, to uncover discriminatory hiring practices (University of Michigan Law Reform).  In a subsequent article in the Illinois Law Review he explored the possible benefits of mediation in Title VII cases – a process that could both reduce the high costs of litigation and free the parties from the doctrinal rigidity of Title VII law.  His most recent piece in this area, “The Prevention Justification for Affirmative Action,” argues that employers should be permitted to take steps to increase the number of blacks or women in their workplaces in order to prevent discrimination – a justification that breaks out of the two most common justifications for Title VII affirmative action: the remedial and the diversity justifications.  The article appears in the Ohio State Law Journal.

His work on other employment discrimination topics draws interest as well.  Last year he was asked to participate in a symposium at Duke Law School on “Makeup, Identity Performance, and Discrimination.” His contribution to that symposium, “What Do Unions Do about Appearance Codes?,” appears in the Duke Journal of Gender Law & Policy, and his presentation at Duke in October 2007 can be viewed at
http://www.law.duke.edu/webcast/?match=Michael+Yelnosky.