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Abstract:
As traditional social norms permitting overt racism and segregation give way to a modern norm of egalitarianism, and as well-defined, hierarchical, bureaucratic organizational structures delineating clear paths for advancement within institutions give way to a globalized workplace of flexible governance and movement between institutions, discrimination often operates in the workplace today less as a blanket policy or discrete, identifiable decision to exclude than as a perpetual tug on opportunity and advancement. Although we have begun to recognize the complexity of discrimination as it operates in its more fluid, socially dynamic forms, however, we have neglected to adequately conceptualize these modern forms of discrimination. Through review of empirical research and discussion of past and recent cases and scenarios, this article illustrates that existing Title VII doctrine fails to account for discrimination in the modern workplace, largely because it embraces a purely individualistic conception of discrimination on one end and a purely institutional conception on the other end, while ignoring the interplay between the two. Proposing a structural account of disparate treatment theory, the article submits that it is possible to address modern forms of employment discrimination while at the same time preserving institutional freedom and flexibility in organizational design. The article develops the beginnings of this structural account of disparate treatment theory, a theory that would hold employers responsible for the institutional practices and organizational structures that enable the operation of discriminatory bias in the workplace to the detriment of women and minorities. Moreover, it embarks upon an exploration of the potential of the theory in resolving existing doctrinal confusion as well as in creating a realistic legal incentive for maximizing equity in employment.

discrimination, employment, structural

Abstract:
Recent research on the contact hypothesis - the idea that intergroup contact can reduce prejudice - reveals that permitting identification with socially salient categories like race and gender is more likely to translate into reduced prejudice than attempting to eliminate or eclipse entirely those categories. This research has important implications for a number of issues of pressing social and legal concern, from broad views about integration and the cultural consequences of immigration to more narrow questions about diversity in education and the role and shape of affirmative action. This Article considers the implications of the contact hypothesis research for one of these issues: the debate about employer demands that people of color and women "cover" their race and gender by conforming their behavior and appearance to a white, male norm (known as the "workplace assimilation" debate). The degree of diversity represented in the workplace relative to other social institutions and the sustained nature of interaction at work makes the workplace a uniquely promising venue for attaining the relational benefits of intergroup contact. The workplace assimilation demand debate therefore serves as a useful lens for understanding the implications of the contact hypothesis research more broadly.

To date, scholars and courts have framed the workplace assimilation debate largely in terms of individual interests: on one side sits the employer's interest in easing customer or co-worker discomfort with difference, and on the other side sits the employee's interest in being saved the identity, time, and economic costs involved in complying with behavior requirements that are drawn along a white, male norm. This Article reframes the debate by considering how workplace assimilation demands impact the end-goal of antidiscrimination law - social equality. Drawing on the vast social science research and theory on the contact hypothesis, it argues that regulating workplace assimilation demands to permit signals of group identification is likely to result in greater prejudice reduction than the prevailing policy of permitting those demands. More specifically, it proposes that employees should be provided space to signal membership in groups protected by Title VII of the Civil Rights Act through employer accommodation to appearance. This proposal aims to attain the societal benefit possible from contact at work without risking essentialization of group traits. In doing so, the proposal embraces an understanding of workplace diversity that includes behavioral signals of group-based identities as much as biologically prescribed ones. Perhaps even more important, the proposal represents a new vision of integration, one in which discomfort with difference is overcome instead of avoided.

discrimination, employment, assimilation, integration, social equality, race discrimination, sex discrimination, contact hypothesis

Abstract:
A structural approach to employment discrimination law seeks to impose an obligation on employers not to facilitate discriminatory decisionmaking in the workplace. Scholars across disciplines agree that a structural approach is a crucial element of an effective antidiscrimination law. Existing law fails to account for the ways in which bias manifests subtly in day-to-day workplace decisionmaking, or for the influence of organizational context on that decisionmaking. But the future of a structural approach depends, in part, on its normative foundation. Without sufficient normative underpinning, a structural approach is unlikely to gain traction in the public or in the courts.

In this article, Professor Tristin Green makes the normative case for a structural approach. She argues that a structural approach sits within the core of employment discrimination law, imposing costs on employers for their own wrongs against individuals in the workplace. At the same time, she challenges the emerging view that all (or almost all) antidiscrimination law is inherently and exclusively distributive. That view, she argues, is both mistaken and dangerous, for it casts aside the longstanding fault-based component of the nondiscrimination obligation.

Discrimination, antidiscrimination, structural, implicit bias, entity liability

Abstract:
When Ledbetter v. Goodyear Tire and Rubber Co. was decided by the Supreme Court in late-May of this year, commentators - both legal and nonlegal - immediately recognized the obstacle that the decision poses for individuals suffering from discrimination in pay. Shortly after Ledbetter was decided, op-eds appeared in the New York Times, the Chicago Tribune, and the Los Angeles Times, all calling for overturning of the majority's decision and/or better access to pay information, and legislators scrambled to draft legislation providing that each paycheck could constitute an act of discrimination, thus extending the period within which an individual would be able to file her complaint. What these efforts to mitigate the immediate effects of Ledbetter miss, however, is that Ledbetter is part of a much deeper and more potentially devastating conceptual shift that is taking hold in employment discrimination law. This insular individualism - the belief that discrimination can be reduced to the action of an individual decisionmaker (or decisionmakers) isolated from the work environment and the employer - renders the narrow legislative attempts to overrule Ledbetter woefully incomplete. Without adequate challenge, the entrenchment of insular individualism that Ledbetter reflects is likely to have significant repercussions for the future of employment discrimination law.

In this Essay, I seek to uncover the insular individualism in Ledbetter and to map some of its potential consequences for antidiscrimination law. I argue that Ledbetter - and the insular individualism that it reflects - is likely to lead to at least two significant changes in individual disparate treatment law: (1) a narrowing of the evidence plaintiffs alleging individual disparate treatment are permitted to use to make their case; and (2) a cutting back on employer vicarious liability, both by providing exceptions to employer liability for what are seen as errant or rogue discriminating employees, and, as in the area of sexual harassment, by requiring victims of discrimination to complain to their employers about discrimination early on, even when the discrimination is not yet legally actionable. Although these changes are on the immediate horizon (within the next year, the Court will hear arguments in a case raising the first opportunity for such a change, and other opportunities are likely to follow shortly), they are not inevitable. After mapping some of the likely effects of insular individualism, I propose several ways in which those who understand insular individualism can work to weaken its influence.

Abstract:
Discrimination in the workplace has become increasingly complex. Its complexity can be seen in the subtle ways in which bias creeps into everyday social interactions and perceptions and in the unsettling tension between honest adherence to an egalitarian norm and continued reliance on stereotypical categorization and judgment. But its complexity emerges perhaps most significantly for the modern antidiscrimination project in the blurring of boundaries between individual and organizational sources of harm. Even as we recognize its complex human dimensions at the individual level, we must also recognize that continuing workplace inequity and discrimination is equally an institutional and organizational problem. This article explores the implications of the complexity inherent in modern workplace discrimination for the task of identifying its sources and of devising programs for reform. Drawing on a variety of sociolegal and organizational research and theory, including a body of work concerning the context of decision making that shaped the disastrous launching of the 1986 Space Shuttle Challenger, Professor Tristin Green lays a foundation for a legal inquiry that recognizes organizational as well as individual sources of harm. From there, she considers a number of recent privately instituted Title VII class action lawsuits as a starting point for such an inquiry. She argues that these lawsuits represent the emergence of an important new form of institutional reform litigation and rejects employer efforts to characterize the lawsuits as an inappropriate use of the class action vehicle. At the same time, she identifies several significant differences in the remedial task undertaken by these recent lawsuits as compared with earlier institutional reform efforts and explores the danger that these differences pose of private co-option of larger public antidiscrimination goals.

discrimination, workplace, Title VII, civil rights, class actions, institutional reform, employment

Abstract:
This Article provides the first extended analysis of the conscious use of race and sex in decisions organizing work. It takes the position that race and sex are being used in organizing work-in assigning clients and job tasks, in composing work teams, in staffing committees and outreach groups-and that they are being used pursuant to a “diversity” narrative in ways that are likely to entrench workplace inequality. At the same time, it argues that race and sex could be used in those same decisions to reduce workplace discrimination and to further equality in work. Drawing on a rich body of research in sociology, social psychology, and organizational theory, the Article exposes the risks and possibilities of race and sex in organizing work by focusing on the role that social interactions play in producing and reproducing disadvantage and on the role of organizational and institutional structures in shaping those interactions. Based on this empirical foundation and on the Supreme Court case law governing the use of race and sex in employment decisions under Title VII of the Civil Rights Act, the Article advances a comprehensive approach to the permissibility of race and sex in decisions organizing work. It argues that Title VII permits the use of race and sex in decisions organizing work to serve the goal of reducing employment discrimination, provided that individual race- and sex-based decisions are part of an employer’s systemic integrative effort. This approach recognizes that decisions organizing work differ from decisions at moments of entry, promotion, and exit in ways that matter to an antidiscrimination analysis. They are “softer” in that their benefits and harms are not always immediately discernable, and they can impose costs as well as benefits on women and people of color, even when they are intended to (and do) further antidiscrimination goals. The approach to Title VII developed in this Article accounts for these differences and offers a unique opportunity to harness the existing business case for diversity to progress meaningful integration in work and to foster reduced workplace discrimination.

discrimination, employment, Title VII, race, sex

Abstract:
Social scientists have shown that bias and stereotypes are executed and reinforced not only in moments of decision making, like hiring or promotion, but also in day-to-day interactions and social relations (or lack thereof) at work. This article argues that discrimination-reducing measures taken by employers should address the relational level in addition to the individual level of discrimination. The authors discuss existing measures for reducing employment discrimination as focusing too narrowly at the individual level of discrimination. Building on the social science literature on the influence of job segregation on interactions, they then present research supporting the idea that restructuring work away from the traditional bureaucratic model can reduce inequality by changing the context of social relations and interactions from segregated/stereotype reinforcing to integrated/stereotype challenging. They provide suggestions for several other organizational changes that may lessen discrimination at the individual level and consider the legal implications of the measures that they identify.

discrimination, implicit bias

Abstract:
Whether in response to civil rights laws or demographic shifts in the labor pool, employers today seem to realize that women and minorities will be a part of their workforces. Indeed, many employers broadly espouse diversity as part of doing good business. At the same time, over the past several decades, employers have increasingly turned to employee fit as a formal job requirement and have retreated from detailed bureaucratic structures in ways that place heightened importance on social relations. These structural moves raise new concerns about workplace equality, for they strengthen demands to conform with prevailing work culture by making social relations more crucial to an individual's employment success. In this Article, I seek to frame an expanded antidiscrimination discourse that isolates work culture as a source of discrimination and puts legal pressure on employers to devise meaningful programs for reform. Drawing on a rich literature on the meaning of culture and the operation of human bias, I examine how particular work cultures can develop and persist along gender and/or racial lines and expose the harms that those cultures can impose on women and minorities. I then locate a substantial gap in existing legal discourse, where work culture is more frequently seen as a matter of business prerogative than one of antidiscrimination concern. For both normative and practical reasons, however, I argue against the creation of a new legal right to be free from discriminatory work culture, and I explore several alternatives to a legal rights approach, one that builds on existing legal doctrine and another that is driven by an administrative obligation, that might be used to trigger the type of contextual problem solving needed for meaningful work culture change.

discrimination, employment, work culture, assimilation, diversity management, problem solving