Work Culture and Discrimination
University of San Francisco - School of Law
California Law Review, Vol. 93, 2005
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.
Keywords: discrimination, employment, work culture, assimilation, diversity management, problem solvingAccepted Paper Series
Date posted: January 27, 2005
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