Do Antidiscrimination Regimes Discriminate? Processing Claims through Administrative and Legal 'Pyramids' and the Role of the Plaintiffs' Bar: A California Case Study

Abstract

The vast majority of studies of the processing of employment discrimination claims have examined federal Title VII litigation and the EEOC. In virtually every state, however, claimants have the option of pursuing the same claims with state Fair Employment Employment Agencies (FEPA’s). State law claimants can have their claims handled by an administrative agency or, with a “right to sue” letter from that agency, in state court. Access to the state court option is allocated, with few exceptions, by the private decisions of the plaintiffs’ bar. We use our extensive study of the California FEPA to examine differences in outcomes through the administrative or litigative path. Using sequential logistic regression, we examine the path of these cases and differences in outcome, controlling for a large number of variables (made possibly by a dataset of 212,144 cases). We find troubling indications that the antidiscrimination regime itself operates to discriminate against members of the very groups it was created to protect: racial minorities, particularly African Americans, and women.