This Article employs what it calls "critical race realism" to theorize and propose a common law antidiscrimination claim that incorporates contemporary re-conceptualizations of antidiscrimination jurisprudence and grounds itself doctrinally not in civil rights law but in the contractually implied obligation of good faith. "Critical race realism" refers in part to this Article's explicit goal, in proposing the common law claim, to re-conceive explicitly the private law doctrine of good faith as one that might assist in effecting a public law norm of equality. By employing critical race realism, this Article hopes to help revive the controversy over what constitutes the public and private in American jurisprudence, so that legal realists and critical scholars might continue to interrogate, jointly, how our constructions and/or deconstructions of the public-private dichotomy implicate and affect our common goal: the elimination of the material and ideological conditions and causes of inequality. In proposing the good faith discrimination claim, the Article attempts two interventions, one doctrinal and one theoretical. Doctrinally, the good faith discrimination claim explicitly traverses the boundary between public and private law by using the contractual doctrine of the implied obligation of good faith to effect a public law norm of equality. Theoretically, the good faith discrimination claim attempts to take account of and actualize Iris Marion Young's "five faces of oppression" by operationalizing Devon Carbado and Mitu Gulati's theory of "working identity." Moreover, the good faith discrimination claim attempts to drive theory into praxis by shifting its analytical inquiry away from intentionality and the "perpetrator perspective" - so deeply embedded in conventional civil rights law - and toward the conditions and agents, both material and ideological, of group-based subordination. In so doing, this Article does not argue that racial and gender identity and difference, specifically as those identities are lived in the workplace, should be de-constructed to the point of non-existence. Rather, the good faith discrimination claim means to address, contextually and specifically, the material burdens and risks imposed on workplace-outsiders by their ideological "image repertoires."
Houh, Emily, "Critical Race Realism: Re-Claiming the Antidiscrimination Principle through the Doctrine of Good Faith in Contract Law" (2005). Faculty Articles and Other Publications. 97.