A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong

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.

Keywords: Discrimination, antidiscrimination, structural, implicit bias, entity liability