Part II-Romantic Paternalism-The Ties That Bind: Hierarchies of Economic Oppression That Reveal Judicial Disaffinity for Black Women and Men

Author:Pamela J. Smith
Position:Assistant Professor, Boston College Law School

Preface. I. Introduction. II. Black Women and Economic Exploitation: No Romance and No Paternalistic Protection. A. Economic Exploitation of Black Women 's Labor B. Expanded Economic Exploitation 1. Exploitation Shown Through Type of Work Availability 2. Exploitation Shown Through Wage Disparities C. Black Women's Quasi-Protection Under "Sex Plus" D. Sporadic and Unsatisfactory... (see full summary)


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The extent to which historically oppressed groups participate in today's economic marketplace depends upon a host offactors not controlled by an individual or the subgroups to which an individual belongs. The economic participation of historically oppressed groups today depends in large part on the subgroup's past economic participation. If subgroups were exploited or blockedfrom economic participation in the past, that exploitation and blocking continues today despite the implementation of anti-discrimination legislation. This article focuses on the implementation and interpretation ofTitle VII ofthe Civil Rights Act ofl964 because that particular legislation has been interpreted and applied in such a way that it solidifies age-old economic hierarchies. The judiciary participates in the economic oppression or economicfreedom affordedsome subgroups depending upon race and gender. Thus, the judiciary evidences judicial affinity for White women while evidencing judicial disaffinityfor Black women and Black men.

Judicial disaffinity is a term that Ifind descriptive ofthe courts' role in restricting Black women 's and Black men 's economic opportunities despite the mandates ofTitle VII In this article, judicial disaffinity will be used as either a verb or a noun. As a verb, judicial disaffinity describes the courts' participation in creating and solidifying economic hierarchies despite the mandates against anti-discrimination in Title VII As a noun, it describes the effects ofthe courts' preference for certain subgroups.

Judicial affinity was revealed by showing in the first article, Part I-Romantic Patemalism,1 how White women have been treated historically, identifying common strands of advantages and disadvantages, and ihen following these strands throughout time to determine whether the advantages and disadvantages remain, especially in how the judiciary interprets and applies Title VII This first step, therefore, involved a comparison of White women to White women at different points in time.

This article will reveal judicial disaffinity by showing that the economic disadvantages that Black women and Black men suffered inPage 184 the past continue today through the courts' application and implementation ofTitle VII

Despite the existence of "sexplus " jurisprudence that has allowed the courts to "see"2 the discrimination that subgroups of White women face, the courts have been unwilling to apply the same reasoning and analysis to other vulnerable subgroups that are being restrictedfrom full economic participation due to stereotypes and prejudices. As a result, the protection afforded Black women who are facing discrimination because oftwo ormore focal points of discrimination, e.g., race, gender and pregnancy, is sporadic and unsatisfactory. Many Black women are yet to be protected fully by the courts when theyface discrimination that is not severable by race or gender.

Additionally, Black men are almost invisible when there is an opportunity to apply the "sexplus "jurisprudence beyond its woman-focused beginning. The courts have consistently failed and refused to recognize that for Black men gender is not an advantage, especially in the economic arenas. As a result, the courts rarely take an opportunity toperform a "sexplus race" or "raceplus sex" analysis that would recognize the reality that Black men are both race and gender vulnerable.

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I Introduction

Romantic paternalism is a historical phenomenon that restricted White women's economic, educational and political activities.3 As a powerful social mechanism, romantic paternalism acted through social customs, statutes and judicial opinions to ensure that White women were economically dependent upon White men, especially as wives and mothers.4 While the express nature of romantic paternalism has ended, in that there are few actual laws or cases that demand that White women stay in the home performing free private labor, social customs continue.5 In fact, while White women are now allowed, and many times required (due to circumstances) to participate in the public economic arenas, they are still restricted from the full and equal economic participation afforded White men.6

As revealed in Part I-Romantic Paternalism, historically the j'udiciary played a fairly active role in ensuring that White women stayed in their preferred roles as private, non-wage earning laborers as wives and mothers.7 The judiciary's role in maintaining this gender hierarchy continues today. The judiciary currently implements and interprets Title VE of the Civil Rights Act8 in such a way to give continued life to the romantic paternalistic ideal of White women as wives and mothers.9 Certainly, there is a difference between White women of today and White women of yesteryear. Historically, under romantic paternalism, White women were prevented from working because of their status as mothers and wives.10 Now, under romantic paternalism' s modern twin, judicial affinity, White women are protected primarily because they are working wives and mothers.11

Granted, not all barriers for White women have been dismantled. White women still perform much of the public labor that mirrors private labor. They perform jobs that require them to assist, nurture and serve White men andPage 186children.12 They also perform these gendered tasks for low gendered wages.13 Thus, economically, White women are not entirely free from the confines of romantic paternalism.

Yet, White women receive some benefits under judicial affinity as they did under romantic paternalism. This arricie discusses these benefits to show that Black people are not receiving any of these benefits, especially when performing public labor. The benefits of romantic paternalism and judicial affinity under Title VII are restricted to White women. Thus, romantic paternalism and judicial affinity have a specific race and gender preference. Both benefit White women as White women. Black women, other women of color, and men of color have not benefitted from romantic paternalism and do not benefit from judicial affinity today.

In Pari l-Romantic Paternalism, judicial affinity for White women was revealed by tracing the advantages and disadvantages of romantic paternalism across time in judicial opinions interpreting the "sex plus" jurisprudence under Title Vil.14 Since Black women and Black men have not benefitted from romantic paternalism, a similar tracing across time to discover judicial affinity for Black people is not possible. Romantic paternalism and its modern day twin, judicial affinity, are not relevant to Black people. They do not have a shared familial relationship with White men that is acknowledged or respected. Black people do not obtain the historical advantages afforded those who can procreate and multiply the White race. In essence, they do not receive any of the advantages that White women receive for being actual or potential wives and mothers. Accordingly, any economic participation for Black women and men has not been and currently is not valued because Blacks as a group compete with White people for jobs and economic security.15

In sharp contrast to the historie protection afforded White wives and mothers,16 Black people, especially Black wives and mothers, historically were forced to work, suffering economic exploitation and economic devaluation. This economic exploitation and devaluation continues today as Black people find little relief in the courts, suffering from the effeets of judicial disaffinity. Identifying the disadvantages historically faced by Black women and Black men demonstrates the existence of a reality obfuscated by courts in Title VII Page 187judgments. Tracing these disadvantages across time, judicial disaffinity will be shown by revealing how the courts have failed to see the economic reality of Black people who are being denied access to jobs because of specific race and gender barriers. By comparing judicial affinity for White women with judicial disaffinity for Black people,17 this article will demonstrate the courts' failure to implement Title VII in a way that facilitates the full and complete economic participation of Black people.

Part II of this article reveis the economic exploitation suffered by Black women throughout history and shows that this economic exploitation continues today under Title VII' s "sex plus" jurisprudence. Part ITI of this article reveis how Black men have been aggressively blocked from full participation in the economic marketplace due to race/gender prejudices against Black men as a group. This part also shows how Title VII's "sex plus" jurisprudence is interpreted by courts to allow employers to continue to block Black men from quantitative and qualitati ve economic participation. Finally, Part IV exposes the judicially supported race/gender hierarchies that modern judicial affinity demands.

As Part I-Romantic Paternalism has revealed, the "sex plus" jurisprudence is consistent for White women.18 For White women, the courts do not struggle with whether...

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