Procedural Apartheid? How Racial Harassment Cases and Their Proponents are Subject to Separate and Unequal Due Process

Authors

• Suzette M. Malveaux, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Harvard Civil Rights-Civil Liberties Law Review

Publication Date

2026

Abstract

This article makes three unique contributions. First, it introduces the theoretical framework and coins the term “procedural apartheid.” Simply put, when race is invoked as the basis for misconduct, procedural protection is meted out inequitably, often to the detriment of people of color. This phenomenon is situated in the law’s larger project to preference colorblindness over race-conscious ameliorative efforts. The article invites the reader to broadly consider where separate and unequal proceduralism exists because of the centrality of race. This article deploys the term “apartheid”—not literally, but strategically—to highlight the systemic legal and racial nature of this hierarchical divide.

Second, the article contextualizes and applies this theoretical framework to mandatory arbitration and collective actions bans. It illustrates how Congress’s passage of EFASASHA and serious consideration of POAA, but not EFARDA, risk procedural apartheid. This article argues that there are no principled justifications for treating the two workers described above differently. While there are meaningful differences between race and sex, they are immaterial to the right to procedural justice. Juxtaposing the treatment of race- and sex-oriented cases exposes a stark double standard. Congress devalues race by unjustifiably making a harassment case contingent upon sex as the gatekeeper to a procedural safe harbor from forced arbitration and class action bans. This devaluation relegates race cases and their proponents to separate and substandard due process tracks.

Third, the article fills an important void in the literature: “[r]elatively little scholarship has focused on racial harassment as opposed to sexual harassment,” and very little, if any, has involved procedure.

Recommended Citation

Suzette M. Malveaux, Procedural Apartheid? How Racial Harassment Cases and Their Proponents Are Subject to Separate and Unequal Due Process, 61 Harv. C.R.-C.L. L. Rev. 557 (2026).