Volume 71, Number 1 – October 2021

Articles

The Gay Perjury Trap
Christopher R. Leslie
PDF

In Bostock v. Clayton County, the Supreme Court held Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. Prejudiced employers and managers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against lesbian, gay, and bisexual employees. A better understanding of history can inform those efforts.

This Article examines an unexplored chapter in the United States’ history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public-sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for their dishonesty. Either way, gay workers are purged from the workforce.

This Article provides historical examples of the federal government and local school districts using this strategy to terminate high-performing workers who were later discovered to be gay. After discussing the inherent unfairness of the gay perjury trap, this Article explains how prejudiced employers may attempt to deploy this strategy as a means of circumventing Title VII liability in the post-Bostock era. Finally, this Article discusses how courts should prevent employers from using the gay perjury trap in the post-Bostock work environment. Dismantling the gay perjury trap entails three components. First, courts should interpret Title VII as prohibiting employers from inquiring about an applicant’s or employee’s sexual orientation. Second, courts should not afford employers a general right to penalize gay workers for concealing or misrepresenting their sexual orientation. Third, courts should construe Title VII to protect employees who refuse to answer questions about their sexual orientation.

Whether Title VII can effectively deter and remedy anti-gay discrimination will in significant part depend on courts’ ability to recognize and prohibit employers from using the gay perjury trap. The post-Bostock Title VII cannot succeed if employers can use alleged dishonesty about sexual orientation as a means of punishing gay workers and avoiding liability.

 

The New Parental Rights
Anne C. Dailey & Laura A. Rosenbury
PDF

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting calls for more robust state support of children subordinated by race and class.

The new model of parental rights presented here brings children out from under parental control and into public view. The model conceives of parental rights in relational terms, offering greater state support for the parent–child relationship, addressing the race and class biases underlying expansive parental rights, and highlighting children’s independent interests and agency. This new approach calls for the highest scrutiny of governmental action that threatens to separate parents and children, but a less strict level of scrutiny for governmental action that intrudes upon parental authority in ways that support children’s independent interests and agency. The model also strengthens the parent–child relationship by urging a radical increase in affirmative support for all children, but especially for low-income children and children of color who suffer the most under a legal regime that privatizes the costs of children’s upbringing.

This reenvisioning of parental rights has the potential to transform a broad range of laws affecting the lives of children and parents. The Article analyzes several issues of critical importance to children’s welfare: homeschooling; transgender youth medical decisionmaking; foster care; children’s peer relationships; and the forced separation of parents and children through immigration detention, child welfare removal, and parental incarceration. By calling for greater state support of both children and families, the “new parental rights” challenges the privatization of dependency; fosters diversity of family life; and respects the independent capacities, values, beliefs, and identities of all children.

 

Notes

The Unlikely Heroes of Fair Elections: Contemporary Third-Party Enforcement of Campaign Finance Violations
Chelsea Cooper
PDF

It is uncontroversial that the Federal Election Commission fails to enforce campaign finance law adequately. This Note contributes to this discussion by analyzing more than four thousand summaries of standard enforcement proceedings to demonstrate the distribution of enforcement at the Federal Election Commission. This analysis indicates that the percentage of internally generated standard enforcement proceedings has declined precipitously, while the number of standard enforcement proceedings initiated each year has remained relatively constant. At present, the agency initiates very few standard enforcement proceedings.

Instead, third-party enforcers fill the enforcement void. Third-party enforcers are members of the public that monitor political actors to detect and subsequently enforce campaign finance violations informally and formally. Often, these third-party enforcers are political actors themselves motivated by the pursuit of partisan political gain. Third-party enforcers can enforce serious campaign finance violations because of robust disclosure law and recent technological advancements that have rendered campaign finance information readily accessible to the public for the first time.

In light of these changes, this Note evaluates the literature on third-party enforcement of campaign finance violations. This Note finds that the highly critical literature overlooks many of the benefits of third-party enforcement. While the practice has drawbacks, third-party enforcement is a much more forceful deterrent to potential violators than internally generated enforcement. Consequently, this Note argues that third-party enforcement advances fair federal elections, and the Federal Election Commission should alter its Enforcement Priority System to capitalize on third-party enforcement and improve enforcement at the agency overall.

 

Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law
Karen L. Sheng
PDF

The United States is caught in the crosshairs of skyrocketing health-care costs and a rapidly aging population. Families are buckling under the weight of supporting and caring for aging relatives, especially with the exorbitant costs of long-term care facilities, hospitalization, and chronic illness management. Although the government provides support through programs like Medicare and Medicaid, adult children, acting on an emotional impetus to support parents, often have to organize that support. They may even have a legal duty in over half of the states. These filial responsibility laws impose a duty on adult children to support their parents who cannot otherwise support themselves.

North Carolina is one of these states. State law holds that it is a misdemeanor, punishable by up to a year in jail, for an adult child to fail to support an ill or indigent parent. Much of the scholarship in this space has agreed that filial responsibility laws are inequitable and inefficient, but none have proposed solutions to achieve what these laws originally set out to do. Focusing on aging and poor people in North Carolina, this Note proposes three state-level, nonpartisan ideas to reform the landscape of elder care, providing families with more tools to support the ones they love and cherish. The North Carolina General Assembly should: (1) require employers that offer health insurance with dependent coverage to offer coverage of an employee’s uninsured parents; (2) establish a reciprocal beneficiary status that conveys certain rights and responsibilities to parent-child caretaking relationships; and (3) expand Medicaid eligibility under the Affordable Care Act.

Volume 71, Number 1 – October 2021

Articles

The Gay Perjury Trap
Christopher R. Leslie
PDF

In Bostock v. Clayton County, the Supreme Court held Title VII’s prohibition on sex-based employment discrimination applies to discrimination based on sexual orientation and gender identity. Although the opinion is an important victory, if history is any guide, Bostock was only one battle in a larger war against invidious workplace discrimination based on sexual orientation and gender identity. Prejudiced employers and managers will seek alternative, less obvious ways to discriminate. Judges and civil rights lawyers must prepare themselves to recognize and reject pretextual rationales for adverse actions taken against lesbian, gay, and bisexual employees. A better understanding of history can inform those efforts.

This Article examines an unexplored chapter in the United States’ history of anti-gay discrimination in the workplace: punishing gay workers for concealing their sexual orientation. Beginning in the 1960s, as federal and state law implemented procedural protections for public-sector workers, employers developed a new mechanism to evade those protections: the gay perjury trap. At its core, the strategy is simple. An employer asks job applicants about their sexual orientation. If they reveal that they are gay, decline to hire them. If gay workers conceal their sexual orientation and it is later discovered, terminate them for their dishonesty. Either way, gay workers are purged from the workforce.

This Article provides historical examples of the federal government and local school districts using this strategy to terminate high-performing workers who were later discovered to be gay. After discussing the inherent unfairness of the gay perjury trap, this Article explains how prejudiced employers may attempt to deploy this strategy as a means of circumventing Title VII liability in the post-Bostock era. Finally, this Article discusses how courts should prevent employers from using the gay perjury trap in the post-Bostock work environment. Dismantling the gay perjury trap entails three components. First, courts should interpret Title VII as prohibiting employers from inquiring about an applicant’s or employee’s sexual orientation. Second, courts should not afford employers a general right to penalize gay workers for concealing or misrepresenting their sexual orientation. Third, courts should construe Title VII to protect employees who refuse to answer questions about their sexual orientation.

Whether Title VII can effectively deter and remedy anti-gay discrimination will in significant part depend on courts’ ability to recognize and prohibit employers from using the gay perjury trap. The post-Bostock Title VII cannot succeed if employers can use alleged dishonesty about sexual orientation as a means of punishing gay workers and avoiding liability.

 

The New Parental Rights
Anne C. Dailey & Laura A. Rosenbury
PDF

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting calls for more robust state support of children subordinated by race and class.

The new model of parental rights presented here brings children out from under parental control and into public view. The model conceives of parental rights in relational terms, offering greater state support for the parent–child relationship, addressing the race and class biases underlying expansive parental rights, and highlighting children’s independent interests and agency. This new approach calls for the highest scrutiny of governmental action that threatens to separate parents and children, but a less strict level of scrutiny for governmental action that intrudes upon parental authority in ways that support children’s independent interests and agency. The model also strengthens the parent–child relationship by urging a radical increase in affirmative support for all children, but especially for low-income children and children of color who suffer the most under a legal regime that privatizes the costs of children’s upbringing.

This reenvisioning of parental rights has the potential to transform a broad range of laws affecting the lives of children and parents. The Article analyzes several issues of critical importance to children’s welfare: homeschooling; transgender youth medical decisionmaking; foster care; children’s peer relationships; and the forced separation of parents and children through immigration detention, child welfare removal, and parental incarceration. By calling for greater state support of both children and families, the “new parental rights” challenges the privatization of dependency; fosters diversity of family life; and respects the independent capacities, values, beliefs, and identities of all children.

 

Notes

The Unlikely Heroes of Fair Elections: Contemporary Third-Party Enforcement of Campaign Finance Violations
Chelsea Cooper
PDF

It is uncontroversial that the Federal Election Commission fails to enforce campaign finance law adequately. This Note contributes to this discussion by analyzing more than four thousand summaries of standard enforcement proceedings to demonstrate the distribution of enforcement at the Federal Election Commission. This analysis indicates that the percentage of internally generated standard enforcement proceedings has declined precipitously, while the number of standard enforcement proceedings initiated each year has remained relatively constant. At present, the agency initiates very few standard enforcement proceedings.

Instead, third-party enforcers fill the enforcement void. Third-party enforcers are members of the public that monitor political actors to detect and subsequently enforce campaign finance violations informally and formally. Often, these third-party enforcers are political actors themselves motivated by the pursuit of partisan political gain. Third-party enforcers can enforce serious campaign finance violations because of robust disclosure law and recent technological advancements that have rendered campaign finance information readily accessible to the public for the first time.

In light of these changes, this Note evaluates the literature on third-party enforcement of campaign finance violations. This Note finds that the highly critical literature overlooks many of the benefits of third-party enforcement. While the practice has drawbacks, third-party enforcement is a much more forceful deterrent to potential violators than internally generated enforcement. Consequently, this Note argues that third-party enforcement advances fair federal elections, and the Federal Election Commission should alter its Enforcement Priority System to capitalize on third-party enforcement and improve enforcement at the agency overall.

 

Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law
Karen L. Sheng
PDF

The United States is caught in the crosshairs of skyrocketing health-care costs and a rapidly aging population. Families are buckling under the weight of supporting and caring for aging relatives, especially with the exorbitant costs of long-term care facilities, hospitalization, and chronic illness management. Although the government provides support through programs like Medicare and Medicaid, adult children, acting on an emotional impetus to support parents, often have to organize that support. They may even have a legal duty in over half of the states. These filial responsibility laws impose a duty on adult children to support their parents who cannot otherwise support themselves.

North Carolina is one of these states. State law holds that it is a misdemeanor, punishable by up to a year in jail, for an adult child to fail to support an ill or indigent parent. Much of the scholarship in this space has agreed that filial responsibility laws are inequitable and inefficient, but none have proposed solutions to achieve what these laws originally set out to do. Focusing on aging and poor people in North Carolina, this Note proposes three state-level, nonpartisan ideas to reform the landscape of elder care, providing families with more tools to support the ones they love and cherish. The North Carolina General Assembly should: (1) require employers that offer health insurance with dependent coverage to offer coverage of an employee’s uninsured parents; (2) establish a reciprocal beneficiary status that conveys certain rights and responsibilities to parent-child caretaking relationships; and (3) expand Medicaid eligibility under the Affordable Care Act.