Passive Discrimination: When Does it Make Sense to Pay Too Little?

61 Pages Posted: 7 Sep 2008 Last revised: 3 Aug 2012

See all articles by Jonah B. Gelbach

Jonah B. Gelbach

University of California, Berkeley - School of Law; NYU School of Law

Jonathan Klick

University of Pennsylvania Carey Law School; Erasmus School of Law; PERC - Property and Environment Research Center

Lesley Wexler

University of Illinois College of Law

Date Written: January 25, 2010


Economists have long recognized the ability of employers to construct benefits packages to induce workers to sort themselves. For instance, to encourage applications from individuals with a highly valued but largely unobservable characteristic, such as patience, employers might offer benefits that patient individuals are likely to value more than other individuals. By offering a compensation package with highly valued benefits but a relatively low wage, employers will attract workers with the favored characteristic and discourage other individuals from applying for or accepting the job. While economic theory generally views this kind of self-selection in value neutral terms, prejudiced employers could exploit this mechanism design framework to systematically discriminate against individuals on the basis of observable characteristics that the law prohibits employers from considering in their hiring decisions. As long as groups systematically differ in their preferences for various employment terms and conditions, employers can generate sorting in the application and employment acceptance stages, leading to the desired segregated outcome in a way that regulators will find difficult to prevent without dictating uniformity in benefits packages.

We develop a formal model as well as an intuitive discussion of the phenomenon. We provide a number of representative illustrations of how a prejudiced employer could exploit preference heterogeneity for discriminatory ends.These mechanisms include wage and benefit packages such as (1) high pension, low wages, (2) commission-based salaries, (3) Chick-fil-A's Sundays off policies, and (4) free school tuition. We also note that some employers might end up with a segregated workforce even when they have no intention to sort workers or when they intend to sort for a non-discriminatory characteristic.

Finally, we conclude that current federal antidiscrimination law inadequately addresses either intentional or unintentional passive discrimination. Neither disparate treatment nor disparate impact frameworks are well suited to grappling with this form of structural discrimination. Passive discrimination facilitates rather than impedes employee choice and thus, might not be viewed as discrimination per se, even if it results in workplace segregation or means that individuals with protected characteristics who fail to self sort are least likely to value the form of compensation and fringe benefits they receive. We discuss some possible judicial and legislative approaches that may ameliorate passive discrimination, though many raise serious questions of their own.

Suggested Citation

Gelbach, Jonah B. and Klick, Jonathan and Wexler, Lesley M., Passive Discrimination: When Does it Make Sense to Pay Too Little? (January 25, 2010). University of Chicago Law Review, Vol. 76, p. 797, 2009, FSU College of Law, Public Law Research Paper No. 315, FSU College of Law, Law, Business & Economics Paper No. 08-10, Available at SSRN:

Jonah B. Gelbach

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

NYU School of Law ( email )

Jonathan Klick

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
2157463455 (Phone)

Erasmus School of Law ( email )

3000 DR Rotterdam

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Lesley M. Wexler (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics