Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences

Posted: 27 Dec 2008

See all articles by Robert L. Nelson

Robert L. Nelson

Northwestern University

Ellen Berrey

State University of New York (SUNY) - Buffalo; University of Denver; American Bar Foundation

Laura Beth Nielsen

American Bar Foundation; Northwestern University - Department of Sociology

Date Written: December, 23 2008

Abstract

Legal conceptions of employment discrimination have become increasingly narrow over the past two decades as the law has adopted a "perpetrator" model of discrimination that emphasizes purposeful intent. This tendency runs counter to social scientific research that documents the pervasiveness of unintentional bias and the persistence of organizational processes that generate workplace discrimination. This narrow legal conception, coupled with a system of employment discrimination litigation that emphasizes individual claims and individual remedies, fails to support the organizational approaches that are most promising for redressing workplace discrimination. We review the literature on employment discrimination law, discrimination litigation, continuing patterns of racial and gender inequality, the organizational bases of discrimination, and the impact of equal employment law on organizations. We conclude by discussing the reasons for and implications of this divergence between law and social science.

Keywords: systematic discrimination, implicit bias, discrimination litigation, organizations

Suggested Citation

Nelson, Robert L. and Berrey, Ellen and Nielsen, Laura Beth, Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences (December, 23 2008). Annual Review of Law & Social Science, Vol. 4, December 2008. Available at SSRN: https://ssrn.com/abstract=1319963

Robert L. Nelson (Contact Author)

Northwestern University ( email )

1810 Chicago Ave
Evanston, IL 60208
United States
847-491-5415 (Phone)
847-491-9907 (Fax)

Ellen Berrey

State University of New York (SUNY) - Buffalo ( email )

Buffalo, NY
United States

University of Denver ( email )

2201 S. Gaylord St
Denver, CO 80208-2685
United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Laura Beth Nielsen

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States
312-988-6574 (Phone)
312-988-6579 (Fax)

Northwestern University - Department of Sociology ( email )

1810 Chicago Ave
Evanston, IL 60208
United States

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