Social Closure Discrimination
35 Pages Posted: 31 Aug 2018 Last revised: 11 Sep 2018
Date Written: August 1, 2018
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
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