Racially Discriminatory Corporate Policies: Who’s Liable?
Laws banning discrimination have been on the books across America for more than a century and a half. Their prohibitions are among the most morally grounded, widely known, and widely supported in our law. Despite these facts, the last decade saw a cavalcade of corporations adopt policies that seemingly commit to violating these laws. While academics have spilled much ink considering whether such policies violate these laws, remarkably little attention has focused on whom they make liable for corporate violations. That omission masks a surprisingly under-appreciated near-consensus that American law makes individual decisionmakersliable for programmatic discrimination by the enterprises through which those decisionmakers discriminate. Officers and directors of major enterprises should bear this consensus in mind when considering the adoption, implementation, or retention of discriminatory policies.
