Opportunity Discrimination: A Hidden Liability Employers Can Fix

Abstract

This article applies a model of workplace advancement where big employment decisions — like promotions and pay raises — are influenced in part by the disparate distribution of smaller opportunities over time. These smaller opportunities generally do not qualify as “adverse employment actions” for the purpose of a discrimination claim under Title VII of the Civil Rights Act. However, their legal significance has been underestimated. The disparate denial of smaller opportunities has been successfully used as evidence of disparate treatment when plaintiffs are later denied a big opportunity.

In addition, recent legislation passed in Washington state, the Equal Pay Opportunity Act, expanded gender discrimination law to more broadly protect women’s access to opportunities for advancement. The statute will likely encourage employers to scrutinize their distribution of smaller opportunities. In the MeToo era, other states may follow suit.

This article argues that employers should identify and address disparities at the opportunity level to advance workplace equality. Drawing from social science research on discrimination in school discipline, employers could identify the particular decision points and contextual factors that drive disparities and use that information to address the problem. Such undertakings would also be compatible with existing internal employment structures.

Keywords: Title VII, Equal Opportunity, Diversity and Inclusion, Human Resources, Discrimination, Metoo, Equal Pay Opportunity Act, Gender Discrimination, Adverse Employment Action, Litigation, Ricci v. Destefano