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Perpetuating employment discrimination
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“The point is that individuals can be seriously injured even when no one intentionally discriminates.”
The excessive emphasis in U.S. law on overt acts of employment discrimination ignores the unintentional bias that permeates workplaces and the organizational practices responsible for much discrimination, according to a UB sociologist and her two colleagues from Northwestern University
Ellen Berrey, UB assistant professor of sociology, and her co-authors Robert L. Nelson and Laura Beth Nielsen, both affiliated with the American Bar Foundation and Northwestern University, say the law conceives of employment discrimination too narrowly, thus enabling discriminatory organizational processes to continue.
They make their case in “Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences,” an article to be published in December in Annual Review of Law and Social Science, a prominent journal in law and social science.
Nelson, the lead author of the article, is director of the American Bar Foundation, where he holds the MacCrate Research Chair in the Legal Profession, and is professor of sociology and law at Northwestern. Berrey specializes in organizational ideologies of diversity, employment discrimination and social inequality. Nielsen is a research fellow at the American Bar Foundation and an associate professor of sociology and law at Northwestern.
The authors argue that this narrow legal conception of employment discrimination increasingly dominates judicial opinions.
“Coupled with a system of employment discrimination that emphasizes individual claims and individual remedies,” they write, “[the law] fails to support the organizational approaches that are most promising for redressing workplace discrimination.”
They call this legal conception “erroneous” and “at odds with the psychological and sociological literature on the nature of discrimination and how it can best be addressed in work organizations.”
Berrey explains that over the past few decades, the law has adopted a “perpetrator” model of discrimination that emphasizes purposeful intent.
“Judges and courts look for malicious individuals who intentionally discriminate,” she says. “But research has repeatedly shown that the notion of purposeful intent does not accurately describe how people act or think when they discriminate in the workplace.
“Psychologists document the pervasiveness instead of unintentional bias,” she says, “and research also points to different organizational practices—like hiring by employees’ networks—as sources of employment discrimination.”
According to Berrey, “The point is that individuals can be seriously injured even when no one intentionally discriminates. And when the law fails to regulate the actual practices that perpetuate discrimination, then it fails to equally protect everyone in the U.S. workforce.”
The authors say the divergence between the treatment of employment discrimination in the law and in social sciences has profound implications. Organizations tend to systematically disadvantage women, minorities and other less advantaged groups. Without efforts to counter these tendencies, such disadvantage will continue. Individuals who believe they have been targets of discrimination are required to demonstrate to the courts specific instances of deliberate discrimination, contributing to the large volume of difficult-to-prove litigation cases.
“The social sciences have not gained authority within law,” they write, “even regarding issues on which scholars have produced an enormous body of published, refereed research.”
The researchers recommend that the important research findings of the social scientists be recognized and promulgated within the legal community and that the U.S. government and employers develop systemic programs of reporting, investigation and enforcement that would have greater impact on workplace inequalities at less cost than does the current litigation system.
Their conclusions are based on a review of the literature on employment discrimination law, discrimination litigation, continuing patterns of racial and gender inequality, the organizational bases of discrimination and the impact of equal employment law on organizations.
Berrey, Nelson and Nielson will be among several noted scholars planning and participating in a November conference held at the Stanford University Law School, “Discoveries of the Discrimination Research Group (DRG)” funded by the ABF, the Center for Advanced Study for the Behavioral Sciences, and the Ford Foundation.
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