Employment Discrimination and the Domino Effect

Abstract

Employment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered in isolation. Second, Title VII’s major theories of liability are premised on the assumption that employee characteristics, such as motivation and work performance, are independent of discrimination. Yet common sense and a significant body of social science research suggest that discrimination has significant effects on employees’ work-related decisions and behaviors, such as the decision to apply for a job or promotion, as well as worker motivation and job performance. Applying the insights of sociology and social psychology, this Article examines the fundamental flaws of these assumptions that lie at the heart of Title VII. Race, sex, and other forms of group-based worker inequality result from a dynamic interaction among biased evaluations and decisions, structural features of the workplace, and employees’ responses to these forms of discrimination. I label these workplace dynamics the “domino effect.” Like an elaborately arranged set of falling dominoes, worker inequality often results from a series of discriminatory conditions or triggers that combine and interact in ways that, over time, may lead to large differences in employee status and pay due to their cumulative and mutually reinforcing nature. I propose and evaluate a set of legal interventions that would help courts and policymakers better address the domino-like dynamics that result in inequality for workers protected by Title VII.

Keywords: employment discrimination, Title VII, disparate treatment, disparate impact, systemic disparate treatment, sexual harassment, sex discrimination, labor, work, family leave, pregnancy discrimination, FMLA, law, race discrimination, equal employment, labor, bias, stereotype, animus, inequality, gender

JEL Classification: J7, J70, J71, J78, J79, K1, K10, K30, K31, M14, M50, M51, Z13