Human Capital Discrimination, Law Firm Inequality, and the Limits of Title VII
49 Pages Posted: 14 Jul 2017
Date Written: September 26, 2016
This Article advances the legal scholarship on workplace inequality through use of evidence derived from interviews of a sample of black attorneys who have worked in large, predominantly white law firms. It does so by calling attention to the manner in which these firms operate as sites of human capital discrimination — patterns of mistreatment that deprive many black associates of access to the substantive work opportunities crucial to their professional development and career advancement. This Article identifies the specific arrangements and practices within these firms that facilitate human capital discrimination and describes the varied, often subtle harms and burdens that they tend to inflict upon black attorneys.
The incidence of human capital discrimination and its deleterious effects are obscured by the informal and fluid personnel arrangements that are prevalent in large law firms. As a result, human capital discrimination falls almost entirely outside of the coverage of Title VII, the restrictions of which are currently limited by the adverse employment action doctrine. In recognition of this, this Article endorses two sets of doctrinal reforms that would afford black attorneys greater protections under Title VII and proposes a series of organizational reforms that law firms committed to the pursuit of workplace equality should undertake, notwithstanding the limits of employment discrimination law.
Keywords: Employment Law, Discrimination, Law Firms, Racial Discrimination, Diversity
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