Beyond the Civil Rights Act of 1964: Confronting
Structural Racism in the Workplace
William M. Wiecek*
Judy L. Hamilton∗∗
Since 1967, sociologists have produced a compelling body of
literature on structural racism that explains why severe racial
disparities persist throughout American society in all social
domains: employment, education, residential patterns, wealth
accumulation, and so on. Structural racism perpetuates the effects
of past, overt discrimination because it does its work through
organizational procedures and social policies that appear to be race
neutral. Dealing with structural racism requires us to focus on
social structure instead of the intentions of bigoted individuals.
In this Article, we link the disciplines of sociology and
constitutional history to demonstrate that the U.S. Supreme Court
has refused to recognize the reality of structural racism in the
workplace. Instead, the Court has developed legal doctrines that
protect this hidden form of racism, assure its continuation, and
disable other branches of the federal and state governments from
eradicating it. The Court’s willful blindness toward race and
employment ignores the reality of structural racism and instead
embeds the justices’ unacknowledged racial policy preferences into
constitutional law. Their doctrinal assumptions about intent,
colorblindness, facial neutrality, and white innocence enable them
not just to ignore structural racism but to perpetuate and affirm it.
In this Article, we first review the sociological literature on
structural racism and construct a template of structural racism by
identifying its six key components: (1) irrelevance of intent, (2)
individualism, (3) belief in structural neutrality, (4) colorblindness,
(5) white advantage, and (6) invisibility. We then provide examples
of structural racism in the social domain of employment. Next we
demonstrate how Supreme Court constitutional decisions regarding
employment since 1964 map onto this template of structural racism:
(1) the Court demands a showing of intent, (2) the Court insists on
Copyright 2014, by WILLIAM M. WIECEK AND JUDY L. HAM ILTON.
* Congdon Professor of Public Law, Emeritus, Syracuse University College
of Law. LL.B. Harvard Law School, Ph.D. University of Wisconsin-Madison
∗∗ Director of the Honors Program (retired), Syracuse University. Ph.D.
Syracuse University (Social Sciences).