Professor Bornstein selected to present at Stanford/Yale/Harvard Junior Faculty Forum
UF Law Professor Stephanie Bornstein has been selected to participate in the 2020 Stanford/Yale/Harvard Junior Faculty Forum. Professor Bornstein’s paper, Disclosing Discrimination, is forthcoming in the Boston University Law Review. The forum will take place virtually over the summer.
Below is the abstract of Professor Bornstein’s article:
In the United States, enforcement of legal prohibitions against workplace discrimination or harassment rests almost entirely on the shoulders of employee victims, who must file charges with a government agency and then, themselves, pursue litigation. While the law prohibits retaliation against employees who file charges, this does little to prevent it. Employees are also primarily responsible for reporting and pursuing any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to pursue complaints, and their justified fear of retaliation if they do so, results in dramatic under-enforcement of the law and an inability to identify and redress the underlying structural causes of sex and race discrimination. By statutory design, government enforcement agencies play a crucial, but limited role in initiating and litigating discrimination lawsuits, making any significant expansion of the agencies’ roles politically infeasible.
This Article considers compelled disclosure of employer information as a means of better enforcing antidiscrimination law. Information-forcing mechanisms have long been a part of securities law. Recent social movements #MeToo and Time’s Up have brought the power of public exposure to the issues of discrimination and harassment at work. Drawing on lessons from both contexts, this Article argues for imposing affirmative public disclosure requirements on employers on issues of pay, promotion, and sexual and racial harassment. It documents emerging disclosure models in some state and international laws meant to target workplace discrimination and highlights where existing U.S. federal law opens the door to such an approach. It also considers counterarguments, including privacy and free speech concerns raised by compelled disclosure. Requiring public disclosures on equality measures is an incremental, yet important untapped mechanism that can shift some of the enforcement burden for U.S. antidiscrimination law off of employees and onto employers and responsible government agencies.