Race, Gender, Work and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation

Abstract

This Article is a follow-up study to Professor Schultz's classic Article, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument (1990). We provide quantatitative and qualitative analyses of the universe of Title VII cases in which employers sought to defend allegations of race or sex discrimination by arguing that racial minorities or women lacked interest in the work at issue.

Several striking patterns emerge from the data. In race discrimination cases, the lower federal courts almost universally rejected the lack of interest defense before 1977, but after that judges began to accept the argument with some frequency - and more often than they did in sex discrimination cases. This change is not attributable to an increase in Republican judges. Both Republican and Democratic judges - and judges appointed by the most liberal Democratic Presidents - began to accept the lack of interest argument with some frequency after 1977. As other scholars have suggested, it appears that the late 1970s represented a turning point in antidiscrimination law: Our analysis suggests that the liberal consensus on race broke down, and the federal courts became more willing to accept neo-conservative explanations for racial segregation in employment.

In sex discrimination cases, by contrast, the courts' willingness to accept the lack of interest defense over time remained stable over time. Remarkably, however, courts treated the very same types of evidence differently in sex discrimination cases and race discrimination cases (at least when considered in the aggregate. For example, anecdotal evidence of discrimination significantly helped plaintiffs in sex discrimination cases, but not in race discrimination cases. Conversely, evidence of past discrimination by the employer helped plaintiffs in race discrimination cases, but not sex discrimination cases. These differences have become minimized after 1977, as the courts have begun to regard evidence produced by race discrimination plaintiffs with the same sort of skepticism with which they have historically regarded the evidence produced by sex discrimination plaintiffs.