66 Pages Posted: 6 Dec 2003
Discrimination in the workplace has become increasingly complex. Its complexity can be seen in the subtle ways in which bias creeps into everyday social interactions and perceptions and in the unsettling tension between honest adherence to an egalitarian norm and continued reliance on stereotypical categorization and judgment. But its complexity emerges perhaps most significantly for the modern antidiscrimination project in the blurring of boundaries between individual and organizational sources of harm. Even as we recognize its complex human dimensions at the individual level, we must also recognize that continuing workplace inequity and discrimination is equally an institutional and organizational problem. This article explores the implications of the complexity inherent in modern workplace discrimination for the task of identifying its sources and of devising programs for reform. Drawing on a variety of sociolegal and organizational research and theory, including a body of work concerning the context of decision making that shaped the disastrous launching of the 1986 Space Shuttle Challenger, Professor Tristin Green lays a foundation for a legal inquiry that recognizes organizational as well as individual sources of harm. From there, she considers a number of recent privately instituted Title VII class action lawsuits as a starting point for such an inquiry. She argues that these lawsuits represent the emergence of an important new form of institutional reform litigation and rejects employer efforts to characterize the lawsuits as an inappropriate use of the class action vehicle. At the same time, she identifies several significant differences in the remedial task undertaken by these recent lawsuits as compared with earlier institutional reform efforts and explores the danger that these differences pose of private co-option of larger public antidiscrimination goals.
Keywords: discrimination, workplace, Title VII, civil rights, class actions, institutional reform, employment
Suggested Citation: Suggested Citation
Green, Tristin, Targeting Workplace Context: Title VII as a Tool for Institutional Reform. Fordham Law Review, Vol. 72, p. 659, 2003. Available at SSRN: https://ssrn.com/abstract=475241 or http://dx.doi.org/10.2139/ssrn.475241