Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory

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.

Keywords: discrimination, employment, structural