This chapter investigates the precarious arrangements embedded in the systems and processes of migration management across three different country contexts: the UK, Germany, and Australia. The country comparison shows how precarious workplace/worker and societal arrangements have been woven into the systems of migration management (Paret and Gleeson ; Vosko ). The examination employs an historical methodology to show how approaches to migration management create a racialised precarity in the destination country generally; and more specifically in the destination country labour market where different groups of migrant workers are channelled into and toil in the least favourable areas of the labour market. Accordingly, we shed light on the rules underscoring and the implications of the process of migrant worker acceptance, settlement, and integration in a new land and labour market.

This chapter concludes the book by shifting the analysis to three sets of interlinked conversations that seem to frame the current debates about race and migration. We begin by analysing the impact of the ongoing conversation about the position of the United Kingdom within the European Union that led to the decision in the 2016 Referendum to support a strategy of leaving the Union and taking back control of national borders. As several commentators have argued in recent years, the impact of the debates around Brexit is likely to be felt in the coming decade or so as their impact on influencing and shaping both current and future agendas about race and racism become more evident. We then move on to explore the implications of continual efforts to develop and maintain a hostile environment around questions of immigration and belonging to assert control over borders and create a social basis for integrated communities. The final part of this chapter allows us to engage critically with the attempt by some commentators to distinguish racism from those forms of identity that are defined in terms of national citizen preference and racial self-interest.

The end of the twentieth century saw a significant change – quantitatively and qualitatively – in refugees coming to Britain. As the post-Cold War world saw growing numbers fleeing a constellation of state collapse, civil war, environmental disaster and economic stagnation, 1990s Britain saw an absolute increase in the number of asylum applications. It also saw a shift away from the entry of distinct blocks of refugees towards the piecemeal entry of individuals seeking refuge. These two trends came together, combining with Britain’s continued restriction of extra-European immigration, to ensure two things. First, that Britain’s stated commitment to refugee rights via the Refugee Convention became undermined by a determination to reduce the number of successful asylum applications. Through repeated legislation, the burden of proof an individual needed to make a successful application became ever greater. Second, despite assertive grassroots activism, new measures – dispersal, detention and ever-more restricted access to welfare support and legal employment – all served to marginalise asylum seekers from the mainstream population. While these sought to underline the difference between, and the competing claims of, asylum seekers and the ‘hard working poor’, in fact both faced the consequences of a retreating state, shrinking affordable housing and the erosion of universal welfare.

Guthrie v. Conway exemplifies the reluctance of many courts to allow victims of workplace sexual harassment to sue in tort for intentional infliction of emotional distress (IIED). The employer in Guthrie escaped liability because the court did not regard numerous incidents of harassment as sufficiently “outrageous” conduct to justify tort recovery. The rewritten feminist dissent explains how courts often misuse summary judgment in hostile workplace environment cases and argues for a contextual application of the elements of IIED based on the victims’ experience. The feminist dissent would allow a jury to review the evidence in its totality, would not require the harassment to be overtly sexual to qualify as outrageous conduct, and would permit a tort claim regardless of whether the victim also had a viable claim under Title VII of the 1964 Civil Rights Act. The accompanying commentary catalogues the various techniques courts have used to exclude feminist perspectives in harassment cases and urges a greater role for tort litigation.

Chapter 8 rewrites Clark County School District v. Breeden, which held that the plaintiff’s retaliation claim under Title VII failed because no reasonable person could believe that a single incident of harassment violated Title VII. The rewritten opinion, exposing the bias many women suffer in the workplace as a result of micro-aggressions and using the perspective of a reasonable person in the plaintiff’s shoes, holds that complaining about even a single incident of harassment is sufficient to constitute a reasonable belief that the plaintiff is experiencing harassment. The rewritten opinion also broadens the causation element in retaliation cases in two ways. First, it refuses to set a bright-line rule for the passage of time between the protected activity and the adverse employment action. Second, it allows mixed-motive causation rather than but-for causation, which would make retaliation claims easier to win and would have eliminated the Nassar case, where the Court held that plaintiffs had to prove that retaliation was the but-for cause of the adverse employment action.

In Chapter 5, Meritor Savings Bank, FSB v. Vinson and Oncale v. Sundowner Services deal, respectively, with the proof standards for sexual harassment and the question of whether and when Title VII forbids same-sex harassment. The rewritten Meritor dramatically alters the standard for employer liability, holding employers strictly liable for sexual harassment by supervisors, with no affirmative defense. Rewritten Oncale concludes that same-sex harassment (and hence harassment based on sexual orientation and gender identity) are illegal sex discrimination that occur “because of sex.” By making employers strictly liable, the rewritten Meritor would have effectively precluded hundreds of subsequent lower court cases and two Supreme Court cases. While the original Oncale openly refused to relate the egregious harms that the plaintiff had allegedly suffered, the rewritten opinion employs feminist storytelling techniques to demonstrate the harms suffered by the male plaintiff at the hands of his male coworkers. It explains that harassment by men of other men often occurs because of societal pressures on men to prove their masculinity and to police the boundaries of sex and sexuality.

This chapter considers when the government’s speech violates the Equal Protection Clause. It starts with an illustrative sketch of the government’s wide-ranging speech about equality that features heroes, villains, and some that are hard to characterize. It then explores three different approaches to the Equal Protection Clause problems sometimes triggered by the government’s speech, approaches that consider the consequences of, and the motivations underlying, the government’s speech. First, does the government’s speech disadvantage its targets’ opportunities based on race (or other protected characteristic), and does the Clause bar the government from causing that disadvantage? Next, does the government’s speech inflict expressive harm by communicating hostility to or disrespect for its targets based on race (or other protected characteristic), and does the Clause bar the government from inflicting that harm? Finally, is the government’s speech motivated by animus, and does the Clause bar the government from speaking for that reason? The chapter closes by applying these approaches to several problems, including governments’ display of the Confederate flag.