For over six decades, the Equal Employment Opportunity Commission functioned as an independent agency despite lacking formal tenure protections for its commissioners. That independence rested on political convention rather than statute and permitted the Commission to develop Title VII's contours and produce stable guidance across administrations. Under the Second Trump Administration, those conventions have collapsed. This Essay traces the origins and limits of the EEOC's operational independence, documents the consequences of its unraveling, and proposes reforms that preserve expertise and fidelity to Title VII going forward.
This Essay takes as a starting point federal retrenchment in workers' rights to envision a stronger legal regime the domestic workers' movement inspired. That movement has driven twelve states, two cities, and the District of Columbia to adopt Domestic Workers' Bills of Rights, extending long-denied labor protections while also pioneering new rights and a participatory regulatory institution. These victories-uneven though they may be-reveal not only discrete rules but also the contours of a new moral economy of the labor market: a framework of values, norms, and institutions that reshape work relations and redefine workers' role in the political economy. Although enacting a comprehensive federal statute that extends these gains to all U.S. workers is quixotic at present, reformers can focus on consolidating these rights for domestic workers and for all other workers and on seizing future opportunities to press for federal legislation when the time is ripe.
Well before the Court issued Students for Fair Admissions, archconservatives broadcast far more ambitious plans to dismantle the building blocks of race consciousness. The second Trump Administration now levies once-fringe demands: that employers abandon racial data collection, disparate impact doctrine, and even voluntary inquiries about racial self-identification. Such attempts to suppress information about race undermine our ability to redress its harms and the bedrock status of race consciousness within a democracy. This Article is the first to demonstrate how informational norms have assumed a crucial role in instantiating—or resisting—"colorblindness" in the Trump Era. Through a conceptual integration of race studies, information science, and law, this Article reinterprets the legal frameworks governing information about racial identity. It introduces the term race-conscious data to refer to information that permits society to communicate racial identity, regardless of whether it is digitized. The Article then advances a new taxonomy of ideological positions regarding racial data gleaned from legal, social movement, and lay sources: (1) Liberal Data Guardians; (2) Race-Conscious Dignitarians; (3) Colorblind Regressives; (4) Libertarians; (5) Techno-Authoritarians; and (6) White Nationalists. A modernized taxonomy captures the full range of thought and rhetoric beyond right/left typologies in regulatory choices and their ideological assumptions. Posing the question of race-conscious data to ideological formations uncovers the racial functions of competing legal claims. It reveals descriptive and normative values, particularly when race-silencing is selectively applied to spaces that confer material benefits of citizenship to non-whites. Workplaces and other fora for racial dialogue illustrate the compelling legal and practical barriers to a federal “colorblind” regime. Labor’s particular relationship with conceptualizing material harm will prove crucial in helping society navigate beyond abstraction ad absurdum. It remains possible to chart future policies addressing race, inequality, and law. As before, multilevel conceptual frameworks fill a vacuum in today’s debates over data’s functions as potentially beneficial, exploitative, or otherwise harmful.
