Michael LeRoy (Illinois) on Reinvigorating the Klu Klux Klan Act of 1871...
Michael H. LeRoy, Targeting White Supremacy in the Workplace, 29 Stanford Law and Policy Review 107 (2018)
“I propose a new approach: Ku Klux Klan Act lawsuits theorizing that work-related racial conspiracies have the purpose and effect of segregating work. This law targets racially motivated private conspiracies that deprive individuals of equal rights. Since 1883, courts have weakened the law. However, the noticeable rise in white supremacist attacks against minorities in workplaces create new and unexplored opportunities to apply the Ku Klux Klan Act. Section 1985(3) can be used to name a hate group, its leaders, website administrators, and other co-conspirators as defendants. My approach complements the nation's criminal hate crime law, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.”
“…I explore four types of racial conspiracies that are connected to a workplace. In each scenario, I examine where the conspiracy was formed, and where it was carried out, to see how white supremacists use the workplace to re-segregate America.”
By re-invigorating Section 1985(3) claims, otherwise known as The Klu Klux Klan Act of 1871, Michael LeRoy proposes a means for attaching liability to white supremacist persons and organizations who participate in violent acts designed to exclude Black folks and other discrete groups from economic opportunities.
Professor LeRoy correctly identifies violence and other types of harassment as methods white supremacists use towards maintaining a racial caste system. He describes numerous ways whites in the 19th and early 20th century overtly conspired to use both private and public means to exclude blacks and asians from economic opportunities.
The Klan and white supremacy has been re-invigorated in the 21st century, and Professor LeRoy believes that Section 1985(3) can be an effective means of specifically penalizing racists who intimidate people of color in, around and through their workplaces. The point is to go beyond employers, who may or may not have encouraged the racists acts, to get to the workers and others who perpetrate and participate in intimidation, as well as the groups who direct and encourage such activities.
He contends that their deliberate acts to intimidate both whites and blacks who refuse to comply with racial caste regulations is punishable under federal law, Section 1985(3), the Klu Klux Klan Act.
As with practically all federal laws purposed towards racial equality, the Supreme Court has substantially limited its scope--excusing in Cruikshank the murder of 280 black people peacefully assembled protesting Reconstruction Era election fraud in Louisiana.
The elements of a section 1985(3) claim are: 1) racial animus, 2) two or more people in a conspiracy, 3) injury to an individual or 'class of persons,' and 4) deprivation of the equal protection of the laws.
The types of violence and intimidation Professor LeRoy believes section 1985(3) sanctions include: a) "a workplace conspiracy aimed to drive black co-workers out of their jobs, b) an orchestrated racist online attack against a business owner or independent contractor, c) violent attacks using racist symbols perpetrated upon individual to intimidate or discourage their racial group from working or traveling in a particular community, and d) violence or intimidation perpetrated on one or more individuals designed to 'drive that their group from a local labor market'.
Professor LeRoy breaks it down into four categories: 1) Racial Conspiracy Formed and Acted on in the Workplace--Employee Victim, 2) Conspiracy Formed Outside the Workplace--Employee Victim, 3) Conspiracy Formed in the Workplace--NonEmployee Victim, 4) Conspiracy Formed Outside the Workplace--NonEmployee Victim.
In each of the above circumstances, the perpetrators can be held financially responsible under section 1985(3), even if the employers themselves did not encourage, promote or accept the benefits of the harassment.
Professor LeRoy does not touch upon it, but I wonder whether such claims also rise to the level of a conspiracy or combination to restrain trade, as prohibited by the Sherman Anti-Trust Act, and for which the victims receive treble damages.
It also seems that Professor LeRoy's thoughts ought not be limited to events tied to the workplace, that liability can attach in a broader array of situations, so long as the purpose is to thwart economic opportunities for subordinated groups. DreSmith