Working Together Under Antidiscrimination Law: Paradoxes and Possibilities
Files
Description
The fiftieth anniversary of Brown v. Board of Education in 2004 celebrated the beginning of the dismantling of legalized segregation of American society. But the occasion reminded us of just how far we had not come in the integration of elementary and secondary education, the immediate object of the Brown decision. That same year, with far less fanfare, we also celebrated the fortieth anniversary of the Civil Rights Act of 1964, a centerpiece of which was the equal employment mandate of Title VII. Although the express purpose of Title VII was not to create integrated workplaces but to promote equal opportunity in the job market, the law has helped to bring about more significant and steadier progress toward workplace integration than we have seen in the public schools. As an almost incidental by-product of the antidiscrimination laws, the workplace has become the single most promising sight of integration, and of cross-racial cooperation and camaraderie, in American society. Still, the promise of both equality and integration at work is far from fulfilled, and the potential contribution of antidiscrimination law is far from exhausted. The ability of Title VII to promote workplace integration and equality depends on how the law interacts with and influences the attitudes and decisions of supervisors and managers, potential complainants, and their co-workers. It depends on who files suit, when, and why; how the law assesses the motives and causes of employment decisions; and how litigation and the prospect of litigation affects attitudes, decisions, and interactions within the workplace. All of these conditions depend, in turn, on aspects of human psychology that are only beginning to make their way into our understanding of discrimination law. In this chapter I seek to trace some effects of discrimination law and litigation on workplace demographics and dynamics in light of evidence about the nature of bias and intergroup relations. It is well to begin with the now-familiar fact that Title VII has become primarily a "wrongful discharge" statute. That is, the incidence of discrimination litigation, and the risk of a discrimination claim, is vastly greater at the discharge, or exit, stage than at the entry, or hiring, stage. This "entry-exit gap" is coupled with an "at-will gap" between the expected cost of firing or laying off members of "protected groups"-as to which there is a risk of costly litigation-and the cost of firing "non-protected" employees who are essentially subject to discharge at will. These facts yield some predictions about the impact of discrimination law, many of which have been usefully drawn out by Ian Ayres, John Donohue, and Peter Siegelman, among others. The plot thickens once we fold in the role of unconscious biases and other cognitive tendencies that are especially well chronicled in the legal literature by Linda Krieger. I argue here that, given the "entry-exit gap," the "at-will gap," and the expected influence of hidden and unconscious bias, Title VII can be expected to produce some counterproductive employer incentives as well as divisive tensions among employees. It may lead employers to be more lenient, at least superficially, toward minority employees in contemplation of discharge or layoff, but to disfavor minority applicants in hiring. It may encourage minority employees to look for discrimination in any case of adverse treatment. And it may lead other employees, themselves exposed to the full brunt of the at-will regime, to see both preferential treatment of minority employees and unjustified claims of discrimination where there may in fact be an inadequate remedy for discrimination and superficial efforts by the employer to avoid litigation and liability. The implication is not that antidiscrimination law does more harm than good; the main effect of antidiscrimination law is to discourage discrimination, especially overt or intentional discrimination. But the claims advanced here do suggest that we should look for ways to make the law a more effective instrument of workplace equality and integration. We might begin by finding ways to narrow both the "entry-exit gap" and the "at-will gap." I conclude by looking briefly at some employer practices and some proposals for reform that fit that prescription.
Source Publication
NYU Selected Essays on Labor and Employment Law: Behavioral Analysis of Workplace Discrimination
Source Editors/Authors
Mitu Gulati, Michael J. Yelnosky
Publication Date
2007
Volume Number
3
Recommended Citation
Estlund, Cynthia, "Working Together Under Antidiscrimination Law: Paradoxes and Possibilities" (2007). Faculty Chapters. 442.
https://gretchen.law.nyu.edu/fac-chapt/442
