As an attorney who actually litigates these types of lawsuits (especially in employment), I can tell you that it is not easy, and our current SCOTUS is making it even harder, to sue for race (or any other) discrimination.

I believe that this is due to our focus on individual rights, rather than the social problem of racism. In 1945, Carey McWilliams wrote a manifesto — Race Discrimination and the Law — arguing for the novel concept of a law against race discrimination in employment. It took another 14 years in California, 19 years at the federal level, to enact the Civil Rights laws (which McWilliams helped draft) we now take for granted. At the end of his 1945 manifesto, McWilliams wrote that his proposed anti-discrimination law should be enforced “as a matter of public policy rather than by individual action as a matter of personal privilege.” The problem is, that private attorneys looking to make money (as you pointed out), as well as their clients, have focused on their individual “rights” to be free from discrimination, rather than focusing on the problem of discrimination as a whole. Conservative justices have expanded on this, requiring that each individual jump over the high bar of proving that the but-for cause of their harm was discrimination on the basis of race. For example, in the SCOTUS Walmart decision, it was clear that there was a problem with promoting women, but the Supreme Court said that this was not enough — each individual woman had to prove that they, in particular, were discriminated against individually.

This has also led to the backlash against affirmative action. Because we have turned these laws into something which can only be enforced “by individual action as a matter of personal privilege” the law is viewed as creating a competition between individual workers for these “personal privileges” rather than a tool to raise the welfare of all. This has brought out the old arguments about “those” people taking away “our” jobs and privileges.

Finally, you need to consider the unequal access to the courts, and unequal treatment in the courts. A professional woman trying to break the glass ceiling may have the means to hire a lawyer, and can claim a large amount of economic damages if they are discriminated against or harassed. But what about the woman who sweeps the glass from the floor? Decades before the Me-Too movement, I took a case of a farmworker who was assaulted by her supervisor, and then fired for fighting back. The rest of the crew stood up for her and refused to work until she was reinstated. So her damages for this awful act amounted to a couple of weeks of near-minimum wage pay. Emotional distress and punitive damages? Do you think a Black Woman will be awarded the same amount as a White Woman who was treated the same?

I don’t mean to totally discourage you, but to point out the difficulties. We need to change the law and the system itself. And when we do bring these cases, we should heed Carey McWilliams’ advice to bring them as a matter of public policy to remedy the problem of racism itself, rather than individual actions as a matter of personal privilege.