That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law
88 Pages Posted: 9 Mar 2011 Last revised: 2 Apr 2015
Date Written: March 7, 2011
Empirical studies have shown that discrimination litigants face difficult odds. Indeed, less than 5% of all discrimination plaintiffs achieve any form of litigated relief. These odds are far worse than those faced by virtually any other category of federal litigants and extend to every conceivable procedural juncture, from motions to dismiss, to post-verdict appeals. So what explains these results?
Surprisingly, there have been few robust attempts to answer this core question. Thus, while we have extensive data demonstrating that discrimination litigants fare poorly in the courts, we know little about why. This Article – drawing on a heretofore unexplored area of the psychological literature (regarding how and why people make attributions to discrimination) – attempts to fill this gap by developing a theoretical framework for understanding the difficulties that discrimination litigants face.
What this framework (and the underlying psychological literature) suggests is that the difficulties that discrimination litigants face are likely to be deeply intractable. Indeed, it appears that the difficulties that discrimination litigants face are founded in fundamental American background beliefs regarding meritocracy and discrimination; beliefs that are widely shared and generally impervious to change.
These findings have profound implications for contemporary recommendations for anti-discrimination reform. Most notably, they suggest a need to look for alternatives that will be less susceptible to the negative effects of American background beliefs, including alternatives that may be outside the scope of traditional anti-discrimination law (for example, just cause claims or FMLA-style laws). This Article thus concludes by providing a preliminary discussion of the potential benefits and drawbacks of such “extra-discrimination remedies.”
Keywords: Discrimination, Psychology, Remedies, Employment Law
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