Abstract
Donald Tomaskovic-Devey on Rights on Trial.
Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality by Ellen Berrey, Robert J. Nelson, and Laura Beth Neilsen University of Chicago Press 320 pages
Before this book was written, sociologists knew a great deal about discrimination. Audit studies and employees’ self-reports show that employment discrimination remains widespread, and organizational studies of equal employment opportunity practices find many human resource (HR) practices designed to prevent discrimination do not—some even increase discrimination. We have also learned that most of African Americans’ and women’s progress in U.S. workplaces stalled decades ago. Simultaneously, we hear reports of employers committed to equal opportunity and the belief that diversity is good for their bottom line. Given that the evidence on discrimination, failed policies, and stalled progress are typically based on behavioral data while employer reports are simply talk, scholars have somewhat cynically evaluated many employer commitments to diversity and equality as mere symbolic compliance with law.
We have known little, however, about exactly how discrimination complaints are processed. If compliance is merely symbolic, how does the legal system allow guilty firms to escape justice? Berrey, Nelson, and Nielsen (hereafter BN&N) explore what happens when discrimination leaves the workplace and enters the legal system. What they discover is that discrimination law, in practice, perpetuates the inequalities it was intended to redress. BN&N also reveal why employers deny the reality of discrimination: because under the law, discrimination is a finding of guilt, which almost never occurs in a legal system stacked in the employer’s favor and designed to dispose of charges long before a judge or jury examines the evidence.
Title VII of the Civil Rights Act (1964) made it illegal to discriminate or segregate in employment based on race, national origin, religion, color, or sex. These protections were later extended to age and disability status, and the meaning of sex extended to include pregnancy, sexual harassment, and sexual orientation and identity. Legal rights to non-discrimination in employment on these bases are guaranteed to everyone in the U.S. These rights are enforced through the legal system—and herein, lay the problem. The discrimination legal system has evolved in an adversarial struggle between well resourced, repeat player employers and their representatives and aggrieved, but low-resourced individuals seeking moral and sometimes financial compensation. Employers tend to win.
Following a random sample of cases including both quantitative and qualitative data on case processing, BN&N approach the search for rights under the law with a relational- and process-oriented lens. The qualitative data is notable in the authors’ relational approach to data collection, as they interview the employees who make discrimination charges, their lawyers, the employers who are charged, and the lawyers that represent these defendants. One of the most striking findings is that plaintiffs, defendants, and their lawyers have fundamentally different interpretations of what occurs when discrimination goes to court. Plaintiffs look for impartial justice, but encounter a system that puts them on trial. Their outcomes are predictably disappointing. Firms, on the other hand, see the courts as the playground of troubled, expensive employees who they are well rid of, and they often use the court’s adversarial process as an opportunity to signal to other employees that the cost of discrimination complaints is both job loss and vilification. Lawyers tend to reflect their clients’ interpretations, although even plaintiffs’ lawyers sometimes see their clients’ quest for non-monetary benefits as the problem.
Under U.S. law, an administrative complaint to the Equal Employment Opportunity Commission (EEOC) must precede the filing of a discrimination lawsuit in federal court. The vast majority of people who experience discrimination never file a charge with the EEOC; BN&N estimate that of the 3.4 million yearly cases of perceived racial discrimination, only about 31,000 (less than 1%) are filed with the EEOC. Of these, the EEOC pursues very few cases in the courts, preferring to mediate disputes in a non-adversarial conciliation process. BN&N estimate that 15% of the cases the EEOC takes up receive favorable outcomes (although what that means is not clearly spelled out). After processing, the EEOC sends plaintiffs letters giving them the right to sue. About 5,000 cases are eventually filed in federal court as discrimination charges. Thus, BN&N estimate that only 0.13% of potential lawsuits ever occur.
Of these 5,000 cases, about 60% are settled by the firm’s lawyers with a median settlement of $30,000. These settlements typically include the plaintiff losing their job, no admission of guilt by the employer, and the signing of a confidentiality agreement to protect the reputation of the firm charged with discrimination. Virtually none of the cases (6%) actually go to court, and when they do, plaintiffs “win” only about a third of the time. There is, however, little evidence in this study of plaintiffs “winning.” What plaintiffs want is their job, respect, and moral vindication. What they get is vilification, unemployment, and, if they “win,” small cash settlements to shut up and go away. Oh, and their lawyer gets a third of any settlement. None of these plaintiffs feel vindicated, and few feel justice was served.
If a discrimination case actually goes to court, neither plaintiffs nor their employers come away feeling good about the process.
So what does a case look like? After suffering long periods in silence or encountering a new manager who converts a respectful workplace to a harassing one, employees complain at work and look for allies among co-workers, unions, and most importantly HR. Allies are few and fickle. Firms respond to discrimination complaints with managerial harassment and HR efforts to document employment infractions. This documentation leads to firing and becomes the bedrock of the firm’s defense, as both managers and HR are trained by their defense lawyers to dispose of and vilify employees who raise the specter of discrimination charges.
Once an employee has exhausted internal avenues for complaint, often already fired for complaining, they must find a lawyer to represent them. Plaintiff lawyers report turning away 90% of potential clients, selecting the 10% they decide to represent based on the quality of the evidence, but also the plaintiff’s pliability, likability, and ability to pay up-front. Some, particularly African-American plaintiffs, end up representing themselves and typically fare poorly in the court system. Plaintiffs’ lawyers see their job as both getting a financial settlement for their client (and themselves) and managing client’s expectations.
If the case actually goes to court, the firm’s defense acts to personally discredit the employee, often deploying HR records and cultural stereotypes to question the plaintiff’s account or quality as an employee. Black men are described as aggressive, lazy, or uppity; Black women as hypersexual, “bitches,” or uppity; White women as hysterical, sexual, or inferior workers; the disabled as incompetent or faking it; and older workers as out of touch and incompetent. Ironically, exactly the same stereotypes that encourage discrimination by managers or co-workers are reinscribed in the courts as they are used to undermine plaintiffs’ discrimination claims.
Interestingly, neither plaintiffs nor their employers come away feeling good about the process. Employers feel they are being taken advantage of by problem employees who they must pay off. Since employment in the U.S. is “at will,” it is only in discrimination cases that employers are limited in their absolute ability to fire anyone they wish. If an employee complains about their manager or some aspect of work, and it is not a formal discrimination complaint, employers are free to fire the “problem.” Discrimination law produces an exception to this “normal” rule of freedom to fire or discipline. Plaintiffs typically receive a few months pay, lose their jobs, and sign confidentiality agreements protecting the reputations and status quo of their now former firms. No employment, no apology, no justice. The real “winners” in this system seem to be the lawyers on both sides who walk away feeling like they are doing a morally admirable job for their clients within the constraints of the law—and getting paid to do so. Defense lawyers are paid handsomely, while plaintiffs’ lawyers must make minimal time investments in the 10% of presumably winnable cases they accept, then quickly move their clients toward settlements to generate their much more modest income streams.
It would be nice to know what practices look like in firms that treat allegations seriously and manage diversity effectively—to shift our focus from rights before the law to rights at work.
BN&N see the process as one in which the law leaves managerial prerogatives in the workplace untouched, stereotypes reinscribed by lawyers, and discrimination defined by the courts as an individuated process. The vast majority (93%) of employment discrimination claims are made by individuals, rather than groups. It is these cases in which one or more individuals treat an employee poorly and there is direct evidence tying that treatment to race, gender, or disability that courts recognize as discrimination. In the end, the legal recognition of discrimination does not look much like employee’s sense of being mistreated or the social scientific focus on group-level disparities in outcomes.
BN&N conclude with some informed speculation as to what policy and legal changes might strengthen discrimination law and move it away from an individuated model of rights. They make three suggestions: change practices at the EEOC, change the law around affirmative action, and move away from discrimination law remedies toward a more general strengthening of employees’ rights at work.
BN&N report class action lawsuits (in which, for example, a group of employees collectively sue their employer for discrimination and seek systemic EEOC investigations) are more effective in changing firm employment practices, but recent Supreme Court decisions hinder such lawsuits. BN&N advocate a shift in EEOC activity to pursue systemic investigations, noting such activity increased under the Obama administration. My own work with the EEOC similarly advocates systemic firm, rather than individual charge, centered investigations. Systemic cases and data-driven identification of bad actor firms requires conceptualizing discrimination as an organizational process, not an individuated event.
BN&N argue Supreme Court decisions limit employer’s ability to set goals for employment diversity and practice affirmative action, and should be challenged to improve employers’ abilities to make workplace changes. The individualization of discrimination law produces “problem workers,” rather than managerial problems. Thus, the managerial solution all too often is to fire the problem worker, rather than actively manage for equal opportunity and fight workplace biases. The real solution is simple: legalize affirmative action based management in firms, so that managers can set goals for productivity, labor costs, and product timelines, but also for gender pay parity and African-American managerial composition. Current law encourages managers to rely on legal staff when hearing discrimination complaints rather than actively manage diversity outcomes.
Finally, BN&N point out that some of discrimination law’s impotence derives from basic weaknesses of U.S. labor protections. If additional protection against unjust firing is incorporated into law, then the targeting of employees who complain of unfair treatment on the bases of race, gender, or disability might be less of an affront to managerial prerogatives. More generally, it would encourage collaboration among managers and workers striving toward a higher expectation of workplace respect.
I like this book, but I worry about the implication that it describes a sequence of events common across all firms, rather than one limited to those cases that lead to lawsuits. My sense is that we still know little as to what happens in the course of internal discrimination complaints that never become lawsuits. BN&N may be correct, and their documenting the role of HR and in-house lawyers suggests they are. An earlier book by sociologist Vincent Roscigno, In the Face of Discrimination, documents nearly identical HR practices once an administrative complaint is filed with the EEOC.
Still, it would be nice to know what practices look like in firms that, in the face of discrimination complaints, treat the allegations seriously and manage diversity effectively—assuming that some of these “good firms” exist. My own research leads me to believe they do exist, but that we lack good models for what it is those firms are doing well. One could suspect that firms that are bad at managing discrimination are more likely to end up in court, or it could be that BN&N are right and that most firms are indifferent to discrimination because they do not recognize its existence. Perhaps we need to shift our focus from rights before the law to rights at work.