in the law
by ellen berrey
In 1988, Chris Burns, an African American man who built machinery
for the military, injured his back on the job while carrying a heavy
metal plate. He requested different work responsibilities and was
fired soon after.
He first tried to find a lawyer, appealing to legal aid clin-
November. Held at Stanford Law School, the two-day confer-
ics, congressional representatives, even the President of the
ence showcased some of the latest research by social scientists
United States, all to no avail.
who study employment discrimination and the law.
“I been searching for a lawyer to fight the government for
The findings spoke to why workplace inequalities persist
12 years, and there’s no point,” he said. With assistance from his
despite the civil rights reforms enshrined in Title VII of the U.S.
wife and his uncle, Burns, who had only a high school diploma,
Civil Rights Act of 1964 and other subsequent laws. They reveal
filed a lawsuit. He claimed the military had discriminated against
the complex nuances, challenges, and contradictions of the
him based on his race, age, and physical handicap and had retal-
law and its implementation.
iated against him for seeking an accommodation.
Good sociology often does this—it complicates our under-
The U.S. federal district court initial y didn’t consider Burns’s
standing of important institutions, such as law, and basic con-
arguments, citing his “failure to exhaust administrative reme-
cepts, such as discrimination. It raises as many provocative
dies.” While the court gave him 30 days to revise his original
questions as it answers.
complaint, Burns didn’t understand that part, he thought the
Take Burns’s experience. He was one of 41 plaintiffs inter-
case was over.
viewed for a study of employment discrimination litigation led
“I got so, you know, depressed. They send you through
by Nielsen and fel ow sociologists Robert Nelson and Ryon Lan-
al this red tape gobbledy-goo, and they say these big 25-cents
caster (I also collaborated with them). In interviews, plaintiffs
words. And you know without a lawyer degree that you don’t
recounted how they quickly found themselves in what seemed
understand a thing that they are telling you,” he recalled.
a maze of manipulative lawyers, judges in cahoots with employ-
Sociologist Laura Beth Nielsen told Burns’s story at the Dis-
ers, and unreasonable or mysterious rules that prevented them
coveries of the Discrimination Research Group conference last
from ever tel ing their stories. For Burns and many others in
Employment discrimination and total civil cases
source of discrimination, which can take many forms.
Sometimes discrimination involves flagrant acts of racism
or sexism. Employment law today is designed to adjudicate this
intentional discrimination. Often, however, people discriminate
unintentional y and unconsciously, or in ways that obscure their
Total civil cases (x 10)
Sociologist and social psychologist Cecelia Ridgeway, one of
the conference panelists, has shown in her research how uncon-
scious bias operates. Popular gender stereotypes contain assump-
tions about people’s status and competence. Such stereotypes
Employment discrimination cases
may lead those making decisions to an “implicit bias” in their
judgments and actions, such as their willingness to listen to
another person’s opinion. These biases tend to work to the dis-
similar situations, the law provides partial protection and inad-
advantage of women, people of color, and other marginalized
equate recourse, and it can inflict its own harms.
We developed our study in conjunction with the Discrim-
Organizations’ own practices also generate much inequity at
ination Research Group (DRG), a network of many of the top
work, especial y when combined with widespread patterns of
social scientists, lawyers, and policymakers who study the
gender and racial bias. Many jobs continue to be segregated by
changing dynamics of employment discrimination. Legal stud-
race and gender, even though civil rights laws make it il egal for
ies is an interdisciplinary field, so although most DRG partici-
employers to consider race or sex when they assign positions and
pants are sociologists, our projects often incorporate questions,
set wages. Employers who rely on their employees’ networks to
concepts, and methods from outside sociology.
obtain applicants are more likely to hire people of the same gen-
The panelists at this conference spoke on topics ranging
der and ethnic characteristics of their current workforce.
from the effects of civil rights legislation to workplace strategies
Here, sociological research provides a compel ing explanation
that increase equality to the insight social science can offer when
for why the law fails to remedy much workplace inequality: the
drafting laws. The sociological findings highlighted tensions,
legal definition of intentional discrimination leaves out implicit bias,
exposed ironies, and posed new ways of thinking about the lay-
hiring by networks, and other influential organizational practices.
ers of contradictions operating in anti-discrimination initiatives.
the litigation system
unfairness in the workplace
Under the current system, people who believe they have
While workplace discrimination is prevalent, white women
been targets of discrimination must file a complaint with the
and black, Latino, and Asian men and women have made some
Equal Employment Opportunity Commission (EEOC), or a state
inroads into wel -paying and high status jobs since 1966, when the
or local agency, and then pursue litigation. Despite the chal-
U.S. government began to col ect these data. Yet, most of these
lenges plaintiffs like Chris Burns face when pursuing a lawsuit,
groups remain underrepresented (some grossly) in craft production,
the volume of employment discrimination litigation ballooned
managerial, and professional jobs, according to a 2007 study by
in the 1990s, Nielsen and her colleagues have shown. The
sociologists Donald Tomaskovic-Devey and Kevin Stainback.
number of discrimination lawsuits filed in federal court tripled
The U.S. Current Population Cen-
sus reveals that in 2006, white men stil
Good sociology complicates our understanding of
earned significantly more than white
women, African Americans, and Lati-
important institutions and basic concepts. It raises
nos. White women had the closest par-
as many provocative questions as it answers.
ity, earning 73.5 percent of what white
men earned that year, while Hispanic
women had the greatest earnings gap, 51.7 percent. Although
from 8,000 in 1990 to 23,000 in 1998, but then dropped to
these figures don’t control for significant factors that affect
15,000 by 2006.
earnings, such as education, they nonetheless demonstrate
Some of the rise in litigation can be explained by the 1991
the persistence of substantial economic inequity.
Civil Rights Act and the 1992 Americans with Disabilities Act
Sociological research on discrimination not only docu-
(ADA)—legislation whose track record of helping its intended
ments these patterns of inequality, it tries to explain them. And
beneficiaries is mixed, but which nonetheless spurred attention.
it shows that our explanations can’t just point to sexism and
Law professors John Donohue and Peter Siegelman sur-
racism in society at large. Rather, workplaces are a significant
veyed a wide range of social scientific studies and found the
Contexts, Vol. 8, No. 2, pp. 28–32. ISSN 1536-5042, electronic ISSN 1537-6052. © 2009 American Sociological Association.
All rights reserved. For permission to photocopy or reproduce see http://www.ucpressjournals.com/reprintinfo.asp.
spring 2009 contexts 29
Discrimination class actions filed in federal court
Moreover, most litigation doesn’t address systemic patterns
of discrimination. The vast majority of cases—93 percent—
1.0 percent of federal discrimination cases
consist of a single plaintiff. Many plaintiffs, especial y those with-
out a lawyer, are dismissed by the court or lose early in the process
on summary judgment.
If we got our information on these discrimination cases
from the news alone, we might conclude that al plaintiffs reap
a windfall. Some 96 percent of media reports cover successful
plaintiff wins at trial, but just 2 percent of cases filed actually
result in a plaintiff win. As wel , media reports tend to focus on
big wins—more than $1 mil ion—but the actual median award
in these cases is just $150,000, Nielsen has also found. The lit-
igation study shows plaintiffs are far more likely to settle, and
early federal employment discrimination laws of 1964 and
for a median award of $30,000.
1972 generated significant benefits—African-Americans and
Although employers complain about the hassles of
white women, for example, made inroads into jobs that pre-
employee lawsuits, employment discrimination law favors
viously had shut them out—but later interventions in the 1990s
employers in both overt and subtle ways. Since the inception
had less encouraging results.
of equal employment opportunity law, employers have created
One study, by Donohue and col eagues, suggested the ADA
departments, positions, policies, and other programs that
didn’t actual y result in more people with disabilities becoming
al egedly prevent or mitigate workplace inequality. But, employ-
employed, nor did it stem the decline in their wages that had
ers’ willingness to follow formal and legal procedures when
dealing with workers—what sociologist
Employment law is designed to adjudicate
Lauren Edelman and her col eagues cal
the “legalization of the workplace”—
intentional discrimination. Often, however, people doesn’t necessarily translate into less
discriminate unintentionally and unconsciously, or
In fact, formal legality can make the
law work to an employer’s benefit. The
in ways that obscure their prejudice.
courts have developed legal standards
begun in 1986. This research raises a troubling possibility: in
based on the very policies and programs employers have created
some cases, the newer extensions of employment discrimina-
to signal their workplaces are “fair,” according to a study by
tion law may have serious drawbacks, such as business costs for
Edelman, and law professors Catherine Albiston and Linda Krieger,
compliance, but no clear benefits. They may even harm the
sociologist Scott Eliason, and EEOC administrative judge Virginia
employment prospects of their intended beneficiaries.
If litigation is workers’ primary option, how do they fare
Judges treat the mere existence of personnel practices,
once they’ve filed suit? The literature on litigation (both civil
non-discrimination policies, and diversity programs as evidence
in general and employment discrimination in particular) suggests
discrimination hasn’t been taking place. They fail to question
the system of individual claims is inadequate. Most targets of
whether these practices are real y implemented or truly effective
discrimination won’t pursue a claim. Many who do face the
at protecting workers from discrimination.
common problems of inadequate legal representation, lack of
knowledge, and lack of resources.
The law can lead to social change only when individuals
Social scientists are now beginning to identify systemic
choose to mobilize it, according to Nielsen and her col eagues.
practices that can promote greater equality in organizations.
A group of plaintiffs can opt to file a class-action lawsuit, and
Many are the reverse of the routine organizational practices
these can have far-reaching consequences. Class actions are
that generate inequality. Job segregation, for example, can be
most likely to claim disparate impact—that an employment
mitigated when employers formalize their processes for posting
practice like a height requirement might seem neutral but, in
job openings, establish clear criteria for selecting candidates,
fact, systematical y hurts a protected group—so they’re able
and hold administrators accountable for improving the repre-
to help far more people. Class actions also are more likely to
sentation of women and people of color.
succeed. Yet, they made up less than 1 percent of the federal
Other effective practices may come as a surprise. After
cases between 1987 and 2003, Nielsen and her colleagues
analyzing more than 800 private employers since the early
reported in their presentation.
1970s, sociologist Alexandra Kalev has demonstrated that some
American today,” one white board member interviewed for
their study said.
In even the best corporate diversity management pro-
grams, many workers fal through the cracks. In my own study
of a Fortune 500 company, I’ve found the company measures
“diversity” by the number of women and people of color who
earn annual salaries more than $24,000 from non-unionized,
non-hourly positions. The company’s diversity networking
groups are for senior managers and professionals, and they
hold events during business hours, which means a worker who
assembles products on a factory line can’t attend. Such an
approach assumes female and minority representation at the
top will “trickle down” to benefit everyone else.
Sociologist Alexandra Kalev at the Discoveries of the
Discrimination Research Group conference.
the discrimination frame
employee involvement programs adopted by companies to
With al these new employer interventions, it may seem like
increase worker efficiency actually end up helping white
there’s no reason to retain traditional concepts of discrimina-
women, black women, and black men enter managerial ranks.
tion. But participants in the final roundtable considered dis-
“Most women and minorities are channeled into low-vis-
crimination as an analytical and legal frame, suggesting different
ibility jobs with little opportunity for advancement. When com-
ways to think about it.
panies create self-directed work teams and cross-training
Since the 1950s, sociologist Sam Lucas explained, civil rights
programs, these women and minorities suddenly have more
law and activism have renounced prejudice with considerable
opportunities to demonstrate their skil s and smarts,” she said.
success. Discrimination, however, remains deeply entrenched.
Sociological research also reveals the law can, in surpris-
“We should stil care about the results of discrimination,”
ing ways, thwart organizational interventions. Sociologist Frank
he insisted. Moreover, the law focuses on assigning blame for
Dobbin presented new results from his study with Kalev show-
discrimination, but blame “is not helping the social scientific
ing that most corporate diversity programs fail to improve the
analysis.” Sociologists should instead analyze discrimination in
numbers of female and African American managers.
terms of the conditions under which it tends to occur and the
Managers aren’t persuaded by mandatory diversity trainings
actual parties involved.
nor by company statements that justify support for women and
Some of those at the discussion fiercely defended the legal
people of color because of the risks of lawsuits or other legal
model of discrimination. Miranda Massie, a civil rights attor-
issues. Diversity trainings can be effective, though. When train-
ney, argued political activism and class-action lawsuits together
ing references the “business case” for cultural differences—that
can create disincentives for discrimination. One of her legal
workplace diversity leads to better prod-
ucts and greater profits—and when it
What this sociological research shows us, however,
avoids any mention of the law, more
women and African Americans move into
is that law has both real payoffs and serious limita-
These findings are significant
tions as a strategy for promoting equality.
because the less effective diversity train-
ings are more popular: roughly 80 percent of companies make
cases helped end sexual harassment in a car manufacturing
training mandatory and nearly 75 percent refer to law in their train-
plant where a male manager repeatedly revealed himself to
ing curricula. These practices are a mainstay of the estimated $8
female employees and abuse of women seemed to be a man-
billion diversity management industry.
agement perk. Their win created a better workplace for female
Despite popular rhetoric about the business case for diver-
employees in that factory, Massie said, and these legal victo-
sity, though, the number of racial minority corporate board
ries must be continually reinforced.
members and senior executives still remains limited. This find-
Law professor Susan Sturm’s current project examines insti-
ing came from a study of corporate boardrooms by sociolo-
tutional innovation, specifical y initiatives that address structural
gists Clayton Rose and William Bielby. When large American
inequalities and promote inclusion. She and her col eagues look
companies systematically manage the racial composition of
at “institutional change on the cutting edge” in such areas as low-
their boards, they focus on African Americans and ignore other
wage work, housing, and criminal justice to understand how
groups. “Race is about black ... all boards need an African
change happens. They see success among institutions “that take
spring 2009 contexts 31
ing tests to screen blue collar jobs, but to the disadvantage of
people of color. Industrial psychologists were able to convince
courts that these tests didn’t predict job performance, and the
EEOC and the Supreme Court adopted their scientific defini-
tions as the basis of disparate impact, which is a very effective
legal doctrine for ending workplace discrimination.
We still need a legal system that frees Chris Burns and
others like him from discrimination in the jobs they need—a
system that ful y hears and fairly considers the cases of aggrieved
parties and that ultimately brings greater parity in wages, career
opportunities, and other key measures of social equality. With-
out such change, civil rights law will perpetuate, rather than
These plaintiffs were among the 1.6 million current and
remedy, workplace injustice.
former female employees who filed a class-action lawsuit
alleging Wal-Mart discriminated against female employees.
What this sociological research shows us, however, is that
law has both real payoffs and serious limitations as a strategy
up diversity as part of their core mission.” In these models, legal
for promoting equality. We learn from sociology that discrimina-
action is just one of many possible strategies for achieving change,
tion is a tricky concept. Tools to combat it can be easily co-opted,
not the primary one.
and even good policies have limitations. Sociology reveals the
The debate continued on the role law can, and should,
subtleties, nuances, tensions, and contradictions that abound
play in achieving social change.
when law is put into practice in the real world. The value of
“Rights aren’t only about litigation,” Edelman argued.
sociology lies in its ability to complicate our assumptions about
“And if you move too far away from rights, what do you lose?”
law and demonstrate both its promises and pitfal s.
“This is not a move away from rights,” Sturm replied. “It’s
about situating rights in a broader context, but people hear this
as abandoning rights and litigation.” She added that the risk
Lauren B. Edelman, Christopher Uggen, and Howard S. Erlanger.
comes from the current political context: “There are risks both
“The Endogeneity of Legal Regulation: Grievance Procedures as
Rational Myth,” American Journal of Sociology (1999) 105:
in moving towards the innovation model and letting go of rights
406–454. Shows how courts incorporate organizations’ norms
and in holding on to court-enforced rights and missing the train.”
and ideas into legal rules.
“All frames have costs and benefits,” sociologist Robin
Sam Lucas. Theorizing Discrimination in an Era of Contested
Stryker interjected. “We need to ask: what do we get and what
Prejudice (Temple University Press, 2008). Draws on critical schol-
do we lose?”
arship to explain racial and gender discrimination as an insidious
social dynamic in many social contexts.
Laura Beth Nielsen, Robert L. Nelson, Ryon Lancaster, and Nicholas
social science and the law
Pedriana. Contesting Workplace Discrimination in Court: Charac-
A pressing question remained after two days of presenta-
teristics and Outcomes of Federal Employment Discrimination Lit-
tions and debate: can sociological findings like these improve
igation, 1987–2003 (American Bar Foundation, 2008). Unique
documentation of the latest trends in federal employment discrim-
the law? After all, the social sciences haven’t gained authority
ination lawsuits and their outcomes in court.
within the law, which sometimes wholesale disregards an enor-
Robert L. Nelson, Ellen Berrey, and Laura Beth Nielsen. “Divergent
mous body of published, refereed research. Judges, too, tend
Paths: Conflicting Conceptions of Employment Discrimination in Law
to minimize or ignore social scientific literature. And, many
and the Social Sciences,” Annual Review of Law and Social Sci-
basic legal concepts are at odds with sociological findings on
ence (2008) 4: 103–122. An overview of socio-legal research on
inequality, workplace discrimination, and effective solutions.
Nicholas Pedriana and Robin Stryker. “The Strength of a Weak
Scientific evidence doesn’t always fit neatly within a legal
Agency: Early Enforcement of Title VII of the 1964 Civil Rights Act
framework. For example, in court, expert witnesses have cited
and the Expansion of State Capacity,” American Journal of Soci-
research findings on implicit bias, but they rarely, if ever, can
ology (2004) 110: 709–760. Shows how the EEOC, in its early
prove it exists in any particular workplace or that it produces
years, took advantage of broadly constructed legislation to expand
and enforce civil rights law aggressively.
the specific instances of discrimination an employee experi-
ences. Social science can, however, influence the content,
Ellen Berrey is in the sociology department at the University at Buffalo, State Uni-
implementation, and effects of civil rights law, Stryker argued.
versity of New York. She studies political rhetoric on diversity and employment
In the 1960s and 1970s, for example, industrial psychol-
ogists played a critical role in preventing employers, especially
in the south, from discriminating against African American job
applicants and workers. Many employers used general think-