Social Closure Discrimination

35 Pages Posted: 31 Aug 2018 Last revised: 11 Sep 2018

See all articles by Catherine Albiston

Catherine Albiston

University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Tristin K. Green

University of San Francisco - School of Law

Date Written: August 1, 2018

Abstract

In this essay, written for the UC Berkeley Law symposium, The Future of Discrimination Law: Frameworks, Theory, Practice, and People, we examine social closure, a theory of discrimination new to the legal literature that has been well documented in social science research but insufficiently recognized in existing legal doctrine. Drawing on substantial sociological research, we theorize and elaborate social closure as a form of discrimination. We then illustrate how social closure operates by using facts from some familiar employment discrimination cases, cases in which the courts did not explicitly recognize social closure but in which social closure may have been operating. We argue that judges apply existing legal frameworks, even those designed to address systemic forms of discrimination, in ways that tend to mask social closure. Courts mask social closure in two distinct ways: (1) by individualizing bias, and (2) by isolating employment practices from their history and organizational context. We close by making several judge-focused recommendations for better recognizing and addressing social closure discrimination in legal cases.

Keywords: employment discrimination law, social closure, judicial behavior, judicial decision-making, bias

Suggested Citation

Albiston, Catherine and Green, Tristin K., Social Closure Discrimination (August 1, 2018). 39 Berkeley Journal of Employment and Labor Law ___ (2018); Univ. of San Francisco Law Research Paper No. 2018-13; UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3241657

Catherine Albiston

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

215 Boalt Hall
Berkeley, CA 94720-7200
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

Tristin K. Green (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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