Climate Discrimination

Authors

Duane Rudolph, Peking University School of Transnational LawFollow

Abstract

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of workers across the country, especially the poor and workers from minority communities.

While it may be tempting to believe that the current array of federal employment-discrimination laws is both comprehensive and flexible enough to meet the challenges ahead, the prevailing interpretations of federal employment-discrimination laws show that applicable federal law will not be able to respond. Specifically, the main federal statutes targeting employment discrimination, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, Title I of the Americans with Disabilities Act of 1990, and 42 U.S.C. § 1981 (1991) will be of limited utility to judges, workers, lawyers, and employers, among others, if Congress does not amend them.

The Article is novel in at least three ways. First, it is the only article addressing the confluence of climate change and employment discrimination in the United States. Second, the Article is innovative in an additional way—it argues that groundbreaking recent precedent from the Supreme Court of the United States interpreting a federal employment anti-discrimination statute, notably Bostock v. Clayton County, does not cover employment discrimination based on climatic displacement. Third, the Article is the first to propose a number of climate-related changes to federal employment-discrimination statutes to facilitate the work of judges, workers, lawyers, and employers, among others. The Article argues that in the absence of protection under federal law, claimants will likely turn to state employment-discrimination laws, state common-law causes of action, and constitutional claims under federal law that likely will provide inadequate relief.

Recommended Citation

Duane Rudolph, Climate Discrimination, 72 Cath. U. L. Rev. 1 (2023).
Available at: https://scholarship.law.edu/lawreview/vol72/iss1/6