Working Law: Courts, Corporations, and Symbolic Civil Rights 9780226400938

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Working Law

The Chicago Series in Law and Society Edited by John M. Conley and Lynn Mather Also in the series: The Myth of the Litigious society: Why We Don’t Sue by David M. Engel Policing Immigrants: Local Law Enforcement on the Front Lines by Doris Marie Provine, Monica W. Varsanyi, Paul G. Lewis, and Scott H. Decker

The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking by Sally Engle Merry

Invitation to Law and Society: An Introduction to the Study of Real Law, Second Edition by Kitty Calavita

Pulled Over: How Police Stops Define Race and Citizenship by Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel

The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design by Mitu Gulati and Robert E. Scott

This Is Not Civil Rights: Discovering Rights Talks in 1939 America by George I. Lovell

Failing Law Schools by Brian Z.

Collateral Knowledge: Legal Reasoning in the Global Financial Markets by Annelise Riles Specializing the Courts by Lawrence Baum

Asian Legal Revivals: LawyerCompradors and Colonial Strategies in the Reshaping of Asian States by Yves Dezalay and Bryant G. Garth

The Language of Statutes: Laws and Their Interpretation by Lawrence M. Solan

Belonging in an Adopted World by Barbara Yngvesson

Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State by Charles R. Epp Lawyers on the Right: Professionalizing the Conservative Coalition by Ann Southworth

Arguing with Tradition: The Language of Law in Hopi Tribal Court by Justin B. Richland

Speaking of Crime: The Language of Criminal Justice by Lawrence M. Solan

Tamanaha

and Peter M. Tiersma

Everyday Law on the Street: City Governance in an Age of Diversity by Mariana Valverde

Human Rights and Gender Violence: Translating International Law into Social Justice by Sally Engle Merry

Lawyers in Practice: Ethical Decision Making in Context Edited by Leslie C.

Just Words, Second Edition: Law, Language, and Power by John M. Conley

Levin and Lynn Mather

Additional series titles follow index

and William M. O’Barr

Working Law Courts, Corporations, and Symbolic Civil Rights

l au r e n b. e de l m a n

the universit y of chicago press

chicago and london

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2016 by The University of Chicago All rights reserved. Published 2016. Printed in the United States of America 25 24 23 22 21 20 19 18 17 16

1 2 3 4 5

isbn-13: 978- 0-226-40062-4 (cloth) isbn-13: 978- 0-226-40076-1 (paper) isbn-13: 978- 0-226-40093- 8 (e-book) doi: 10.7208/chicago/9780226400938.001.0001 Library of Congress Cataloging-in-Publication Data Names: Edelman, Lauren B., author. Title: Working law : courts, corporations, and symbolic civil rights / Lauren B. Edelman. Description: Chicago ; London : The University of Chicago Press, 2016. | Includes bibliographical references and index. Identifiers: lccn 2016020355 | isbn 9780226400624 (cloth : alk. paper) | isbn 9780226400761 (pbk. : alk. paper) | isbn 9780226400938 (e-book) Subjects: lcsh: Civil rights—United States. | Discrimination in employment—Law and legislation—United States. | Discrimination in employment—United States. | Affi rmative action programs—Law and legislation—United States. | Affi rmative action programs—Law and legislation—Social aspects. | Corporate governance—United States. | Corporate governance—Law and legislation—Social aspects. | Sociological jurisprudence. Classification: lcc kf3464 .e34 2016 | ddc 344.7301/133—dc23 lc record available at https://lccn.loc.gov/2016020355 This paper meets the requirements of ansi/niso z39.48-1992 (Permanence of Paper).

To the memory of my parents, Murr ay Jacob Edelman and Bacia Stepner Edelman

Contents Preface and Acknowledgments ix PA RT I .

The Interplay of Law and Organizations

chapter 1. Introduction

3

chapter 2. The Endogeneity of Law

21

chapter 3. Ambiguous Law and the Erosion of the Progressive Vision in the Courts 42 PA RT I I .

Law in the Workplace

chapter 4. Professional Framing of the Legal Environment chapter 5. The Diffusion of Symbolic Structures chapter 6. The Managerialization of Law PA RT I I I .

100

124

The Workplace in Law

chapter 7. The Mobilization of Symbolic Structures chapter 8. Legal Deference to Symbolic Compliance

153 168

chapter 9. Symbolic Civil Rights and the Endogeneity of Law Notes

239

Bibliography 305 Index

337

77

216

Preface and Acknowledgments

T

he paradox at the heart of this book is that discrimination and inequality based on race and gender persist in the workplace a half century after the landmark Civil Rights Act of 1964. My interest in this problem stems in part from growing up during the civil rights movement and the early implementation of civil rights law. Workplace inequality became my focus during graduate school at Stanford, where I was fortunate to study the sociology of law with Lawrence Friedman and the sociology of organizations with Dick Scott and then to collaborate on a project examining due process in organizations with Dick Scott, John Meyer, Ann Swidler, and Frank Dobbin. I recall that Ann Swidler lent me her well-worn copy of Philip Selznick’s Law, Society, and Industrial Justice, and I was fascinated by his theorization of the role of legal ideals in shaping organizational governance. First as a student and years later as his colleague at Berkeley, I would have many conversations with Philip Selznick about the interplay of law and organizational governance. Although our perspectives differed, my research and thinking owes much to the wisdom he shared with me. Partly due to Selznick’s influence, I decided to attend law school at Berkeley. There I began to read employment discrimination cases and was struck by the differences between sociological and judicial conceptions of organizational behavior. This apparent incongruity eventually led me to a series of research projects focusing on how social reform law shapes the governance of organizations and how organizations, in turn, shape the meaning of law. This book represents the culmination of that research, integrating its fi ndings and developing a perspective that I call legal endogeneity theory to explain both the relationship of law and organizations generally and the persistence of race and gender inequality in the workplace. In many

x

Preface and Acknowledgments

ways, I build on the insights of Law, Society, and Industrial Justice, yet with a critical twist: whereas Selznick argued that organizational governance exhibited a natural tendency toward fairness and the rule of law, I highlight the limits of law in taming power and redressing inequality in organizations. The law and society movement has long provided an intellectual home for my interests in law, inequality, and social change. Many law and society scholars have influenced my thinking, but I am particularly grateful to Lawrence Friedman, who has been a great mentor and friend and who makes being a law and society scholar fun. My critical stance on the limits of law derives in part from the influence of my father, Murray Edelman, whose pioneering work on symbolic politics no doubt at least indirectly inspired my thinking about symbolic civil rights. Although I shared his cynicism about the limited capacity of government policies to reshape deeply ingrained power relations, we frequently debated the value of traditional social science methods. He was the radical, conveying skepticism for “dubious empirical indicators,” which he eschewed as a form of political hegemony. I was the traditionalist, trying to convince him that such indicators could sometimes reveal underlying social and political biases. I suppose and hope that he would be at least amused to learn that my empirical indicators, however dubious, led me to conclusions that complement his own. The research for and writing of this book entailed a long scholarly journey, and I owe thanks to a great many people. I thank my many graduate students over the years who have listened to and challenged my ideas, often helping me to discard arguments that made little sense and sharpen those that remained. I have benefited from outstanding research assistants. Early in the writing process, Rachel Best (now a faculty member at the University of Michigan) provided fabulous research assistance, and she has continued to be a wonderful collaborator and to offer sage advice to her successors in that role. Vasanthi Venkatesh, Melissa McCall, and Joy Milligan rendered excellent research assistance on particular chapters. I am especially indebted to my most recent research assistants—Alan Kluegel, Brent Nakamura, and Aaron Smyth— who for the past few years offered very helpful advice and provided coding, statistical analyses, figures, tables, references, and legal research with lightning speed. I also offer thanks to the collaborators who worked with me on the research projects that I discuss in this book: Steven Abraham, Catherine

Preface and Acknowledgments

xi

Albiston, Rachel Best, Mia Cahill, Elizabeth Chambliss, Scott Eliason, Howie Erlanger, Linda Hamilton Krieger, John Lande, Iona MaraDrita, Virginia Mellema, Brent Nakamura, Stephen Petterson, Asad Rahim, Sally Riggs Fuller, Aaron Smyth, Robin Stryker, Mark Suchman, and Christopher Uggen. Two people deserve special thanks for their substantial roles in the judicial deference study, which provided the central empirical test of legal endogeneity theory. Linda Krieger was my collaborator in designing the study. She patiently answered many questions on EEO law and took the lead in training and supervising the coders, an endeavor that turned out to be far more complicated than we anticipated. And it is with a mixture of sadness and admiration that I thank my late collaborator and good friend, Scott Eliason, who worked with me to design a modeling scheme that best represented the theoretical argument I wanted to test. He was a joy to work with and he weathered my statistical questions with great patience and good humor. Rosann Greenspan, Howie Erlanger, and Aaron Smyth read and commented on the entire manuscript, including multiple versions of some parts. I cannot thank them enough for their substantial contributions they made to the fi nal project and for their encouragement and friendship throughout. In addition to his work on this book, Howie Erlanger deserves special thanks for his years of wise and warm mentorship. I hope I have been able to pass on his commitment to younger scholars. I am also grateful to the numerous scholars who provided feedback on particular chapters or sections, including Catherine Albiston, Robert Bartlett, Kitty Calavita, Malcolm Feeley, Judge Nancy Gertner (Ret.), Joshua Guetzkow, Henry Hecht, Valerie Jenness, Cheryl Kaiser, Kimberly Krawiec, Linda Krieger, Joy Milligan, Calvin Morrill, Michael Musheno, Brent Nakamura, David Oppenheimer, Keramet Reiter, Ashley Rubin, James Rule, Vicki Schultz, and Victor Quintanilla. I have gained insight as well from discussions on EEO regulation with William Bielby, Susan BisomRapp, Frank Dobbin, Alexandra Kalev, Brenda Major, Anna-Maria Marshall, Robert Nelson, Laura Beth Nielsen, John Skrentny, Kevin Stainback, Robin Stryker, John Sutton, and Donald Tomaskovic-Devey. John Tryneski, executive editor at the University of Chicago Press, has been fabulous throughout. I appreciate his wise counsel and his patience as the projected completion date for the book became an evermoving target. I also thank Rodney Powell, Leslie Keros, and all the staff at the University of Chicago Press, as well as the two anonymous reviewers who provided excellent feedback.

xii

Preface and Acknowledgments

Finally, I am grateful for the support of a number of organizations. The National Science Foundation supported many of the empirical studies that I draw on in this book (SES 88-14070; SBR- 9696247; SBR- 9511843, and SES 0651870). Some of the research was completed while I was a Guggenheim Fellow and later a Fellow at the Center for Advanced Studies in the Behavioral Sciences at Stanford. I also received support from the University of Wisconsin– Madison, the University of California–Berkeley, Berkeley Law, and the Center for the Study of Law and Society. In 2005– 2006, I learned much from discussions among members of the Discrimination Research Group, supported by the American Bar Foundation, the Center for Advanced Studies in the Behavioral Sciences, and the Ford Foundation. And in 2014, I benefited enormously from a month at the Rockefeller Foundation Center in Bellagio, Italy, where I wrote several chapters of this book and gained important insights from my discussions with Banny Banerjee and Judge Nancy Gertner (Ret.).

CHAPTER ONE

Introduction

T

he Civil Rights Act of 1964 is regarded as one of the most significant social reform laws ever passed in the United States. It held great promise for a nation in which, as Martin Luther King Jr. previsioned, people would be judged only by the content of their character.1 More than fi fty years later, although considerable progress has been made, that dream has yet to be realized. In this book, I argue that an important reason for continuing racial and gender inequality in the workplace is that employers create policies and programs that promise equal opportunity yet often maintain practices that perpetuate the advantages of whites and males. Over time, organizational policies that symbolize diversity have become widely accepted indicia of compliance with civil rights laws, irrespective of their effectiveness. When we see company brochures that highlight their diverse workforces or university websites that emphasize their commitment to equity and inclusion, we tend to think of those organizations as fair and nondiscriminatory even though we know little about whether men and women of color and white women have equal access to management and professional positions or are subject to harassment that makes it difficult for them to succeed. We have become a symbolic civil rights society: one in which symbols of equal opportunity are ubiquitous and yet often mask discrimination and help to perpetuate inequality. The widespread acceptance of organizational policies that symbolize equal opportunity, moreover, extends into the legal realm, where courts too often focus on the presence of organizational policies that signify nondiscrimination more than they attend to evidence that mi-

4

CHAPTER ONE

norities and women face systematic disadvantages at work. In so doing, courts embrace and condone symbolic civil rights. In Wal-Mart Stores, Inc. v. Dukes, 2 a case that illustrates this problem, the United States Supreme Court focused on a company policy banning sex discrimination more than on evidence that women were systematically denied advancement and training opportunities, paid less than men for similar work, steered into lower-paying jobs, subjected to a hostile work environment, and subject to retaliation if they sought to redress the alleged civil rights violations. Betty Dukes, a fi fty-four-year- old employee at a Walmart 3 store in California, was the named plaintiff in a class action lawsuit that began in 2001 in the US District Court for the Northern District of California. In seeking to certify the largest class in US legal history, the plaintiffs provided evidence of widespread disparities in opportunities for women, offered statistical evidence showing that women were underrepresented in management and paid less than men, and presented expert testimony by sociologist William Bielby, who argued that Walmart’s corporate culture and discretionary personnel practices made it vulnerable to gender bias. The issue in determining class certification was whether there were common questions of law and fact such that the female employees could sue as a class rather than individually. In June 2004 the district court ruled in favor of class certification, and Walmart appealed. After multiple hearings at the federal appeals court, the full panel of eleven Ninth Circuit judges affi rmed the district court’s class certification in February 2009 in a 6– 5 vote, and Walmart appealed to the US Supreme Court. The Supreme Court disagreed with the lower courts. In a 5–4 decision in 2011, with the justices divided along ideological lines, the Court ruled that the class action could not go forward and held that female employees would not be able to establish discrimination across all of Walmart’s roughly thirty-four hundred stores. In reaching the conclusion that there could be no common experience of discrimination, the majority opinion, written by Justice Antonin Scalia, emphasized, “Wal-Mart’s announced policy forbids sex discrimination.”4 Thus, despite evidence presented by the plaintiffs that showed overwhelming statistical disparities based on sex (women held more than two-thirds of the low-level hourly jobs but only one-third of the management positions and, even when promoted, were concentrated at the lowest managerial level) and anecdotal evidence of sex discrimination by many managers, the presence of a formal

Introduction

5

policy banning sex discrimination was an important factor in the Court’s decision to shut down the class action case. The Wal-Mart decision is an example of a phenomenon I call judicial deference, in which judges infer a lack of discrimination in part from the presence of organizations’ formal policies even when those policies are ineffective and fail to protect employees’ civil rights. The formal antidiscrimination policy that the Court deferred to is an example of what I call a symbolic structure, a policy or procedure that is infused with value irrespective of its effectiveness. Symbolic structures connote attention to law or legal principles, whether or not they contribute to the substantive achievement of legal ideals. Symbolic structures exist along a continuum from symbolic and substantive, meaning that they signal attention to law and are effective at achieving legal ideals, to merely symbolic, meaning that they are ineffective at achieving legal ideals but retain symbolic value. Many symbolic structures have some substantive effect, but often much less than courts assume. My focus on symbolism is inspired in part by work in political science that calls attention to the political deployment of symbols as a means of ensuring the “quiescent acceptance of chronic inequality, deprivation, and daily indignities”5 and, in the context of law, as “powerful shapers of perceptions.”6 I argue in this book that societal acceptance of and judicial deference to symbolic structures, irrespective of their effectiveness, help to explain why race and gender inequality persist in the American workplace more than a half century after the passage of Title VII of the 1964 Civil Rights Act.7

The Persistence of Race and Gender Inequality after Fifty Years of Civil Rights Legislation Title VII of the 1964 Civil Rights Act ushered in a new era of civil rights legislation. Since its passage, many other civil rights laws mandating equal employment opportunity (EEO) have been enacted, including the Age Discrimination in Employment Act of 1967, 8 which prohibits employment discrimination based on age (over forty); the Equal Employment Opportunity Act of 1972,9 which expanded the power of the Equal Employment Opportunity Commission (EEOC); the Americans with Disabilities Act of 1990;10 the Civil Rights Act of 1991;11 and the Fam-

6

CHAPTER ONE

ily and Medical Leave Act of 1993.12 In addition to federal laws that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, disability, veteran status, and pregnancy, state and local EEO laws in some jurisdictions cover other types of discrimination as well, including discrimination on the basis of weight and sexual orientation. Although most of my arguments apply to protected groups in general, I focus in this book on discrimination on the basis of race and sex because these forms of discrimination are so prevalent in the American workplace and are the most common types of discrimination alleged in discrimination complaints to the EEOC13 and in lawsuits alleging discrimination.14 I use the term minorities to refer to men and women who are members of underrepresented racial and ethnic groups and the term women to refer to both women of color and white women. Although the phrase minorities and women is sometimes read to refer to minority men and white women, thus excluding women of color, I always mean to include women of color unless otherwise specified. During its fi rst fi fty years, EEO law, along with social movement pressure and changing management practices, has sharply reduced overt discrimination, and there has been considerable improvement in the workforce status of minorities and women. Newspapers no longer run job ads for whites or males only, and minorities and women enjoy significantly greater representation in the workforce now than in the 1960s. Yet, as is revealed by the figures and the statistics cited below, substantial workplace inequality on the basis of race, sex, and other protected categories persists. Figure 1.1 shows the employment-to-population ratio by race (blacks and whites only) and gender from 1972 to 2014.15 These data reveal a substantial reduction over time in overall inequality but also show that substantial differences still exist. Black females and males and white females continue to lag considerably behind white males in workforce participation. Most notably, while the gap between white and black males has remained relatively consistent over time, it is actually greater today than it was in 1972. In addition to being underrepresented in the workforce as a whole, women and minorities are underrepresented in high-level positions. Figures 1.2 and 1.3 show that women and minorities, respectively, have gained representation among officials and managers among private fi rms with 100 or more employees but still lag far behind men and whites. As

Introduction

7

Employment-to-Population Ratio (%)

80 75 70 65 60 55 50 45

12 20

08 20

04 20

00 20

96 19

92 19

88 19

84 19

80 19

76 19

19

72

40

Year White Males White Females

Black Males Black Females

Figure 1.1. Employment-to-population ratio by race and gender, ages twenty and above, 1972 to 2014. Source: Data from the Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, (Unadjusted) Employment-to-Population Ratio—20 Yrs. & Over, series IDs LNU02300028, LNU02300029, LNU02300031, LNU02300032.

with overall representation in the workforce, women have made greater gains toward men in obtaining high-level positions than have minorities toward nonminorities. Moreover, minorities are still disproportionately represented among laborers and service workers, and women are still disproportionately represented among office and clerical positions.16 Among all fi rms, in 2014 African Americans made up 11.4 percent of the total workforce but only 6.7 percent of management positions, and Hispanics made up 16.1 percent of the total workforce but only 9.1 percent of management positions.17 Females made up 46.9 percent of the total workforce but only 38.6 percent of management positions.18 Wage gaps for both minorities and women remain, including at management levels. Relative to their white male counterparts, African American males earned 75.8 percent as much, Hispanic males earned 68.6 percent, African American females earned 68.1 percent, and Hispanic females earned 61.0 percent.19 Females earned 82.5 percent of what their male counterparts earned in 2014; and in management professions, females earned only 77.5 percent of what male managers earned. 20

100

Percentage

80

60

40

20

0

1966

1983

2002

2006

2008

2010

Year Women

Men

Figure 1.2. Officials and managers in US private sector, women versus men—1966, 1983, 2002, 2006, 2008, 2010. Source: Data from Equal Employment Opportunity Commission, Job Patterns for Minorities and Women in Private Industry (based on EEO-1 reports).

100

Percentage

80

60

40

20

0

1966

1983

2002

2006

2008

2010

Year Minority

Nonminority

Figure 1.3. Officials and managers in US private sector, minority versus nonminority— 1966, 1983, 2002, 2006, 2008, 2010. Source: Data from Equal Employment Opportunity Commission, Job Patterns for Minorities and Women in Private Industry (based on EEO-1 reports).

Introduction

9

Social scientists have documented systematic patterns of race and sex segregation in the labor market and within organizations. 21 Women and minorities are disproportionately segregated into job categories with shorter mobility ladders, reduced access to job training, and fewer networking opportunities; are more likely to encounter glass ceilings; and generally receive lower pay than workers in job categories dominated by white men. 22 In their book, Documenting Desegregation, Kevin Stainback and Donald Tomaskovic-Devey provided extensive documentation of sustained—and in recent years increasing—segregation on the basis of race and sex in the United States. They showed that from the mid-1960s until about 1980, segregation on the basis of race and sex declined. From 1960 to 1972, black men in particular saw marked improvement in their workforce position. From 1972 to 1980, both white and black women made substantial gains as well. The workforce position of white women continued to improve through about the year 2000, but progress for both black men and black women slowed after 1980.23 Beyond the statistics, scholars have identified continuing forms of discrimination that are less easily measured but nonetheless hinder the employment prospects of white women, minority men, and especially minority women. Employers’ reliance on social networks to fi nd new employees tends to exacerbate segregation by encouraging women to go into traditionally female job categories and minorities to go into job categories with less potential for upward mobility. 24 Seniority rules, transfer policies, and job-posting practices tend to preserve the segregation that occurs at the entry level. 25 Tokenism, or small numbers of women or minorities in a workplace, hinders success by increasing harassment, causing stress, creating performance pressures, and barring men and women of color and white women from social networks that provide critical communication, connections, and mentoring. Coworker harassment discourages the types of participation and respect necessary for leadership positions and thus reinforces glass ceilings. 26 Organizational scholars also fi nd discrimination and inequality on the basis of race and sex as a result of work cultures; 27 stereotypical beliefs about and cultural evaluation of skills and aptitudes;28 harassment;29 and subjective decision-making processes that favor whites and males when assessing leadership skills, creativity, ability to make sound judgments, and other critical attributes. 30 A related literature in social psychology on implicit biases shows how people tend to associ-

10

CHAPTER ONE

ate minorities more often than whites with negative characteristics31 in ways that are likely to encourage unconscious differential treatment in the workplace. 32 Implicit bias affects memories, perceptions, attitudes, and stereotypes, without intent or conscious bias. 33 Biases also manifest at a more macro level, where scholars point to institutional racism— widespread understandings, practices, and stereotypes that put racial minorities at a disadvantage. 34 Even without conscious intent to discriminate, employers tend to understand whites as being more qualified and responsible, and as having greater leadership capacities. 35 Susan Sturm has labeled these more subtle cognitive barriers to advancement “second generation discrimination.”36 For racial inequality in particular, forms of advantage and disadvantage tend to become institutionally locked in, allowing whites to build on the economic advantages gained through discrimination to maintain an unfair advantage. 37 Critical race scholars point to even more subtle forms of discrimination. In Acting White? Devon Carbado and Mitu Gulati suggested that minorities face pressures within organizations to “act white” by covering their identities. 38 They argued that to succeed, minorities must act and dress in a manner consistent with white expectations and disassociate themselves from their own minority groups. For example, a black woman may cover her identity by straightening her hair, an Asian by assuming a more American-sounding name, or a Latino by altering speech patterns to sound more like white peers. Discrimination is based not only on phenotype but also on performing whiteness, disadvantaging minorities who do not alter their language, dress, hairstyle, social networks, or affi liations to appear more culturally similar to whites. In a somewhat similar vein, women must walk a narrow line between appearing too feminine and not sufficiently feminine. 39 Employees who belong to multiple disadvantaged groups, such as black women, suffer forms of “intersectional” discrimination, which produce unique and more severe forms of disadvantage. For example, an employer might hire both white women and black men but refuse to hire black women because they are stereotyped as desperate single mothers or as “welfare queens”; because these stereotypes are specific to black women, they cannot be explained as the summed effects of racism and sexism. Black men, on the other hand, may be stereotyped as likely to resist authority and therefore difficult to manage, or as hypersexualized threats to white women. Employers hold discrete stereotypes for various intersectional categories.40

Introduction

11

Why have EEO laws not been more successful at reducing these structural, cultural, and cognitive forms of workplace bias? In this book, I suggest that an important reason for the limited success of Title VII of the 1964 Civil Rights Act and of EEO law more generally is that legal institutions, and in particular courts, defer to organizations’ symbolic structures—such as antidiscrimination and antiharassment policies, grievance procedures, and diversity programs—even when those structures are merely symbolic, that is, largely ineffective. EEO and diversity structures have become so common that they have been transformed in the public eye from means of achieving civil rights to indicators of civil rights compliance. In some ways, this change in how people understand symbolic structures makes sense: as Frank Dobbin wrote in Inventing Equal Opportunity,41 the creation of these organizational structures has helped to rationalize organizational governance and to mitigate some forms of racism and sexism. My account of EEO and diversity structures, however, differs substantially from those offered by Frank Dobbin,42 Charles Epp,43 and John Skrentny.44 Whereas these authors tend to treat organizations’ EEO, affi rmative action, and diversity policies as evidence of progress in civil rights, I show that in many cases these structures represent little more than cosmetic compliance: they often coexist with discriminatory practices and cultures, and they transform our understanding of civil rights in ways that weaken the capacity of law to produce social change. Judges defer to symbolic structures because the widespread acceptance of the idea that organizations’ antidiscrimination policies and procedures constitute nondiscrimination makes it difficult for them to discern workplace practices that deviate from or undermine those formal policies. If the presence of these policies always meant that organizations were following the law, then judicial reliance on organizations’ symbolic structures would not be a problem. But when judges infer nondiscrimination from the presence of policies that managers ignore, when they look at the presence of diversity training programs rather than whether organizations are in fact diverse, and when they infer fair and rational governance from personnel manuals that do not govern the daily lives of organizations, then the law tends to condone practices that deviate from legal ideals. Judicial deference to symbolic structures, then, helps to explain the puzzle of civil rights in the twenty-fi rst century: Why, a half century after the passage of Title VII of the Civil Rights Act, does substantial discrimination and inequality persist?

12

CHAPTER ONE

Legal Endogeneity Theory Judicial deference to organizations’ symbolic structures evolves because of a broader phenomenon that I call legal endogeneity, a process through which the meaning of law is shaped by widely accepted ideas within the social arena that law seeks to regulate.45 This book develops legal endogeneity theory both as a means of explaining the limited success of EEO law in the United States and as a general theory of the interplay between work organizations and their legal environments. By work organizations, I refer to private businesses, government agencies, schools, and other workplaces. Although I focus on corporations and other private business organizations, the theory pertains to work organizations in general. Legal endogeneity theory posits that organizations respond to ambiguous law by creating a variety of policies and programs designed to symbolize attention to law. As these policies and programs become commonplace in organizations, employers and employees alike tend to equate the mere presence of these structures with legal compliance and become less aware of whether the structures actually promote legal ideals. Eventually the ideals underlying law become so closely associated with the organizational structures that legal actors, as well as organizational actors, understand compliance in terms of the presence or absence of these structures and thus fail to scrutinize their effectiveness. Legal endogeneity theory suggests that the meaning of law evolves through the articulation and resolution of problems not in the halls of Congress but rather in the halls of work organizations. Legal endogeneity theory challenges the standard view of law as exogenously created, or determined outside the boundaries of organizations. In the standard exogenous view, law is a downward force that is primarily coercive and determinative. Congress issues mandates and organizations respond to those mandates, either by complying or risking sanctions for noncompliance. Organizations may, of course, respond with varying degrees of enthusiasm or resistance, but they are essentially reacting to law rather than determining its meaning. Legal endogeneity theory, by contrast, sees law, at least in part, as an upward force. Legislatures, administrative agencies, and courts tend to incorporate and condone ideas about law and compliance that become

Introduction

13

common and widely accepted within organizations. Thus the meaning of law evolves over time in a way that is fundamentally influenced by the institutions that law is meant to regulate. As work organizations increasingly create EEO rules, programs, and offices, those structures become widely accepted forms of compliance with EEO law. The result is that courts tend to assume, as did the Supreme Court in Wal-Mart, that organizations that have policies banning discrimination do not systemically engage in discrimination. Legal endogeneity theory is not the fi rst approach that posits an upward flow of ideas from society to law. Much classic research examining the interaction between law and society locates the origins of law in social norms and social action.46 Political scientists have identified mechanisms such as lobbying, negotiation, and regulatory capture as important ways through which organizations influence law and regulators.47 But this book identifies, theorizes, and empirically demonstrates a subtler path of influence that has received little attention in the academic literature and virtually none within the legal community: courts and lawyers (often unwittingly) accept ideas about compliance and rational governance that evolve within regulated organizations. This book offers a systematic account of how law becomes endogenous, tracing EEO law from its ambiguous statutory origins through its entry into organizational life and examining its transformation within organizations, the development of a managerialized legal consciousness, the framing of legal arguments by lawyers representing both management and employees, and, ultimately, judicial deference to organizational constructions of law. By specifying the mechanisms through which law becomes endogenous, this book offers a comprehensive theory of the interplay of law and organizations and a novel explanation for why social reform laws are limited in their capacity to produce social change. Legal Endogeneity and the Puzzle of Social Reform Laws Sociolegal scholars have long noted that social reform laws have only limited impact on social change, and they have discovered a number of factors that generally cause “the ‘haves’ [to] come out ahead.”48 Empirical studies have shown that legal rights are difficult to mobilize (make use of), disproportionately so for those without social power or eco-

14

CHAPTER ONE

nomic resources;49 the legal profession is highly stratified in ways that tend to benefit corporations, parties who repeatedly use the legal system, and litigants with greater education and economic wealth;50 the poor in particular have limited access to lawyers and law;51 laws themselves tend to further the interests of those who enjoy social, political, and economic power;52 and legal ideology tends to legitimate the power of the status quo. 53 Legal endogeneity theory reveals a new obstacle that limits the potential of social reform laws, particularly in the context of laws that seek to regulate organizations: judicial deference to symbolic structures that appear to advance the rights of the “have nots” but frequently fail to do so. Social reform laws tend to be ambiguous, and legal ambiguity leaves organizations wide latitude to construct the meaning of law and compliance with law. Largely for political reasons, it is common for legislators to agree on law written in broad brushstrokes as a means of resolving basic differences of opinion over what the law should protect and how stringent its measures should be. Civil rights legislation is ambiguous in that it mandates nondiscrimination without specifying what organizational actions constitute discrimination. Legal ambiguity gives organizations broad latitude to construct the meaning of compliance on a daily basis. Given legal ambiguity, compliance professionals within and around organizations—various consultants, lawyers, human resource professionals, and compliance officers who have responsibility for interpreting law and managing compliance— must figure out, in the context of daily events, confl icts, and organizational operations, what it means not to discriminate on the basis of race or sex, to ensure workplace safety, to accommodate religion and disability, and the like. Compliance professionals tend to encourage organizations to respond to ambiguous laws by creating symbolic structures like antidiscrimination policies that symbolize attention to law, or sometimes by creating general bureaucratic structures like progressive discipline policies or formal evaluation procedures, which tend to symbolize rational governance. Symbolic structures are double- edged. On one hand, they provide a vehicle through which legal values enter the workplace and, over time, alter practices that violate the law. On the other hand, they can mask informal practices that deviate from legal ideals. As organizational scholars have recognized for years, organizations are complex entities

Introduction

15

in which informal practices often deviate from formal policies. Organizations can have formal rules banning discrimination alongside informal practices that systematically disadvantage minorities and women; they can have formal procedures that appear to protect the environment while the informal practice is to dump effluents into the sea; they can have officials formally charged with responsible accounting while midlevel managers regularly augment fi nancial data to reflect nonexistent earnings. It is the informal practices of organizations that matter to the daily lives of employees, applicants, neighbors, and customers, but it is the formal policies of organizations that are the most visible to legislatures, regulatory agencies, and courts. When organizations create symbolic structures, and those symbolic structures come to be known as “best practices,” they acquire an aura of legitimacy that makes it difficult for lawyers and judges to see when actual practices diverge from the formal policies and procedures. Compliance professionals have become sophisticated in advising organizations to adopt symbolic structures that convey legality and rationality. In an ideal world, plaintiffs’ lawyers (those who represent employees) would be able to “pierce the veil”54 of symbolic structures, allowing judges to make decisions based on complete and accurate information about the ways in which organizational practices diverge from their formal policies. In reality, plaintiffs’ lawyers are often unaware of or unable to prove divergences between symbolism and actual organizational practices. Even when plaintiffs’ lawyers present abundant evidence of divergences, as appears to be the case in Wal-Mart, judges tend to be impressed by the formal policies that create the appearance of compliance and rational governance. When judges rely, either consciously or unwittingly, on organizational constructions of compliance, the law becomes endogenous—or constructed within the social arenas that it seeks to regulate. Under these circumstances, law tends to operate on myth and ceremony in a way that renders the impact of law dependent on the effectiveness of the structures that organizations create. When organizations hold the key to the meaning of law, they also harness its power, weakening the potential of social reform laws to achieve ideals such as nondiscriminatory treatment of workers, responsible accounting procedures, or environmental protection. Legal endogeneity, then, helps to explain why laws designed to reform organizations often fail to achieve their goals. In the EEO context,

16

CHAPTER ONE

moreover, legal endogeneity helps to explain how we have become not a post– civil rights society but a symbolic civil rights society. A Note on Ideals in a World of Legal Ambiguity Throughout the book, I refer at times to legal ideals. In a world of legal ambiguity, it is difficult to say with any authority what the ideals of law are, especially in a context such as civil rights, where there has been so much political debate over what constitutes equal employment opportunity, whether affi rmative action advances or detracts from civil rights, and what exactly the law requires. For the purposes of this book, I use the term legal ideals to refer in an abstract sense to what EEO law purports to do; that is, to provide equal employment opportunity. This book is meant primarily as a theoretical exposition of legal endogeneity coupled with empirical evidence in the context of civil rights in the workplace. It does, as well, have policy implications, especially for judges (and indeed lawyers) who are not sufficiently attentive to the complexity of organizations. As I demonstrate, judges often fail to recognize the potential for organizations to decouple their symbolic structures from organizational practices, to subtly transform how discrimination is understood, or to use contractual and other tools to escape the reach of EEO law. Thus, I hope this book will encourage judges to engage in far greater scrutiny of organizations’ symbolic structures, plaintiffs’ lawyers to challenge ineffective symbolic structures, and compliance professionals to create more effective symbolic structures.

Mobilizing Empirical Evidence The book relies on an array of empirical data that I have collected over many years, often with collaborators. These data come from surveys of organizations, interviews with managers, and content analyses of the professional human resource (HR) literature, webinars and websites intended for human resource managers, EEOC documents and guidelines, and judicial opinions. In addition to my own empirical analyses, described below, I draw on relevant legal and social science scholarship by many other scholars to construct a broad theoretical model of the relationship of law and organizations and of the process by which law is transformed in, around, and through organizations.

Introduction

17

Survey To analyze organizational response to law, I conducted a national survey of a representative sample of 350 organizations. I collected event histories of organizations’ responses to civil rights laws over the fi rst twentyfive years after the passage of the 1964 Civil Rights Act, which allowed me to explore the timing of organizations’ adoption of various policies, programs, and procedures over this period of civil rights implementation. Interviews To study how legal disputes were handled within organizations, I draw on personal interviews conducted with human resource personnel in the 1980s and 1990s. These interviews explore dispute handlers’ organizational experiences, their understandings of law and legal rights, their professional training and background, and their experience with and approach toward handling complaints brought through internal grievance procedures. 55 Using another set of interviews, 56 I explore the role of affi rmative action officers in organizations, focusing on how they resolve confl icting commitments to legal ideals and organizational goals. Content Analyses of Human Resource Journals, Webinars, and Websites To examine the role of compliance professionals in constructing law and the legal environment and to discover trends in managerial ideologies, I draw on articles in the professional management print literature and web-based materials on issues such as civil rights, wrongful termination, dispute processing, and diversity. These data cover two time spans. A comprehensive data set of articles collected over the fi rst thirty-five years after the passage of the 1964 Civil Rights Act was systematically coded to allow both qualitative and quantitative analyses. 57 I use these data both qualitatively, to illustrate managerial rhetoric and approaches to the law, and quantitatively, to show trends over time and to explore sources of variation in professional ideas about law. A more recent sample of articles from HR Daily Advisor, a daily online memo service provided by Business and Legal Resources (BLR)58 for human resource professionals, was qualitatively coded on a daily basis for the year 2009 and selectively reviewed for the years 2010 through 2013. These articles

18

CHAPTER ONE

provide insight into the types of recent legal advice and characterizations of the legal environment that legal professionals provide managers and HR professionals. In addition, I watched six webinars intended for HR professionals, read nearly five hundred documents available through the BLR website, and read many of the documents available on the website of the Society for Human Resource Management, the largest association for HR professionals. 59 Content Analyses of Judicial Decisions To examine judicial interpretations of civil rights law and, in particular, judicial treatment of organizational compliance structures, I use a probability sample of 1,024 federal civil rights opinions in cases decided during the fi rst thirty-five years after the enactment of the Civil Rights Act. These judicial opinions were systematically coded and analyzed both qualitatively and quantitatively.60 I use these data to show patterns of judicial deference to organizational practices over time and to analyze the types of cases where judicial deference is most likely. These data are supplemented with a more recent probability sample of 164 cases decided in 2004, 2009, and 2014, which I use to extend the fi ndings on patterns of judicial deference over time.61 Content Analysis of EEOC Guidelines I conducted a content analysis of all EEOC guidelines on discrimination issued between 1965 and 2013 to determine when and how the EEOC referenced or recommended organizational practices and structures.62 Government Data I used available data from the Bureau of Labor Statistics and from the EEOC to illustrate changes in the workforce representation of minorities and women over time.

Organization of the Book The book is organized into three parts, starting with this chapter. Part 1, “The Interplay of Law and Organizations,” provides theoretical and

Introduction

19

legal background. Chapter 2 presents the theory of legal endogeneity. It gives an overview of the mechanisms through which law enters the organizational realm and is transformed in a way that incorporates managerial interests and values, and of how this managerialized notion of law subsequently influences understandings of law and legal actors and legal institutions. Because this chapter ties legal endogeneity theory to extant theories of organizations, it is more abstract and involves a bit more sociological jargon than do other chapters. Chapter 3 introduces the principles of EEO law and discusses trends in EEO jurisprudence that frustrate the capacity of law to correct inequality and discrimination within organizations. This chapter provides a background for readers less familiar with civil rights law and also offers a critical analysis of how EEO law fails to remedy the types of discrimination that typify the modern workplace. Part 2, “Law in the Workplace,” addresses the process through which EEO law affects organizational governance and the various professions within and around organizations. Chapter 4 discusses the critical role of compliance professionals in framing the legal environment as one replete with risk. Chapter 5 explores the origins and diffusion of symbolic structures as the primary form of compliance with EEO law. Chapter 6 examines the managerialization of civil rights law within the workplace, as business and managerial values overshadow legal ideals so that symbolic structures in many cases fail to protect the rights of women and minorities. These chapters draw on my surveys and interviews with managers and complaint handlers, archival data from trade journals, and analyses of websites and webinars aimed at HR professionals and other managers. Part 3, “The Workplace in Law,” turns the tables, examining the process through which symbolic structures come to signify compliance with EEO law within the legal realm. Chapter 7 looks at the mechanisms through which litigants and lawyers alike come to see managerialization as normal and symbolic structures as evidence of compliance with EEO law, as well as the ways in which symbolic structures are mobilized through litigation. Chapter 8 turns to the courts, showing how law becomes endogenous. I show how judges increasingly infer nondiscriminatory workplaces from the mere presence of organizations’ symbolic structures, often without adequate scrutiny of whether those structures in fact advance legal ideals. Chapter 8 also shows how the EEOC came to incorporate organizational constructions of compliance. The empiri-

20

CHAPTER ONE

cal data for this section come from content analyses of federal civil rights decisions and EEOC guidelines. Chapter 9, the conclusion, explores the policy implications of legal endogeneity, the potential for legal endogeneity beyond the civil rights context, and the theoretical significance of legal endogeneity for the study of both law and organizations and law and social change.

CHAPTER TWO

The Endogeneity of Law

W

e tend to think of law and organizations as separate spheres, when in fact they are highly interconnected.1 Modern organizations are awash in a sea of law. They are born through the legal act of incorporation; they die or change form through the legal acts of bankruptcy, merger, or acquisition; they form relationships through legal contracts; they innovate and protect their market power through patent and copyright laws; they form their identities through trademark and intellectual property law; they expand their markets or seek to constrain the markets of others using antitrust law; they hire and govern within the sphere of labor and employment law; they produce products or services under health and safety law; and they expel waste according to environmental law. Conversely, law is a social institution composed of and through organizations. Statutes and regulations tend to emerge from the efforts of lobbying organizations or social movement organizations and to die at their behest. The US court system is a highly complex bureaucracy. Legislatures, administrative agencies, and criminal and juvenile justice systems as well are complex bureaucratic organizations. The primary actors in the legal order—lawyers, judges, and police—are trained in and certified by organizations and interact through organized professions. Beyond the formal organization of the legal profession, lawyers are arrayed in a complex social ordering with well- defi ned patterns of interaction and both modes of and obstacles to mobility. Private organizations regularly participate in the legal order as lobbyists and litigants. The interconnectedness of law and organizations has been recognized for some time. Max Weber’s well-known defi nition of bureaucracy

22

CHAPTER TWO

highlights the role of “rational-legal” authority in organizations, referring to the law-like character of modern organizational rules and governance. 2 In Law, Society, and Industrial Justice, Philip Selznick understood organizations as private governments in which moral and legal values tend to evolve from the public legal order. 3 Selznick saw organizations as microcosms that mirror the public legal order and emphasized the natural evolution toward “legality” or the reduction of arbitrariness in organizations. Since then, scholars have given greater attention to the conditions under which organizations comply or fail to comply with law, the impact of regulation on organizations, and the reasons for organizational noncompliance.4 Since about 1990, neoinstitutional organizational scholarship has addressed the process through which organizational actors respond to their broader legal environments and shape the defi nition of compliance. 5 But there is not yet a comprehensive theory of the interplay between law and organizations that accounts both for how organizations respond to law and for how law responds to organizations. The theory of legal endogeneity that I develop in this book explains how organizations construct the meaning of rights and compliance and, in so doing, shape the behavior of formal legal institutions and, ultimately, the meaning of law. This chapter sets out legal endogeneity theory in general form. I fi rst develop the notion of law and organizations as broad and overlapping social fields with divergent logics. I then present the stages of legal endogeneity, which account for how the logic of organizational fields gradually transforms the logic of legal fields. In subsequent chapters, I use EEO law as a case study of how legal endogeneity evolves. The stages of legal endogeneity that I present below correspond to the remaining chapters of the book, and so in discussing each stage I offer a brief preview of how it pertains to the EEO context.

Organizational and Legal Fields Drawing on neoinstitutional theory in sociology, I conceptualize law and organizations as overlapping social fields, which I call legal fields and organizational fields, respectively. The notion of a social field has proved useful in sociology for explaining the development of shared understandings of social relationships, power relations, and cultural practices that come to be seen as rational and legitimate.6 The construct of

The Endogeneity of Law

23

an organizational field is now well known in the sociological literature on organizations: it refers to the subset of the environment that is most closely relevant to a given organization, including suppliers, customers, and competitors, as well as flows of influence, communication, and innovation.7 Courts or regulatory agencies are often recognized as relevant but peripheral elements of organizational fields. Although legal institutions may be peripheral to the fields that are organized around a given set of business organizations, they may also be understood as central to a separate but overlapping legal field.8 Legal fields comprise legal institutions (courts, legislatures, and administrative agencies), the various legal actors who work in and around legal institutions (e.g., judges, lawyers, and court clerks), formal law (statutes, administrative regulations, and judicial opinions), informal norms and principles that evolve around the formal law, and flows of influence, communication, and innovation regarding legal norms and ideas. Legal and organizational fields have different core logics, or principles, that drive the field. Legal logic is centered on rules and rights and involves a commitment to the rule of law—or the idea that law legitimately governs all social actors and constrains arbitrary behavior by rulers, including organizational rulers. Legal logic gives great weight to legal principles such as due process, equal access to law, and equal protection of law; and generally holds that those principles should be given deference above the political or economic interests of any citizen or organizational entity. Managerial logic, on the other hand, is centered on market rationality, organizational efficiency, and managerial control. Managerial logic holds that organizational rulers (not only business owners but also the managers to whom they have designated control) have legitimate authority to set workplace rules, to control workers, and to resolve disputes that arise within organizations. Because there are multiple points of overlap between legal and organizational fields, there are multiple opportunities for the exchange of logics. The points of overlap occur as organizations are regulated by and seek to influence legal institutions; as organizations interact with legal institutions and actors through litigation; as organizational actors are litigants or make use of legal procedures and forums to engage in business transactions; as lawyers advise or work within organizations; and as actors within organizations interpret the law and devise forms of compliance. As figure 2.1 illustrates, the overlap between legal and organizational fields engenders both a legalization of organizations (in which

CHAPTER TWO

Legal field

Legal environment

Managerialization of law

Legalization of organizations

24

Organizational field

Figure 2.1. The blurring of logics in legal and organizational fields.

legal logic pervades organizational fields) and a managerialization of law (in which managerial logic pervades legal fields). The legalization of organizations and the managerialization of law encourage a flow of ideas from legal into organizational fields and from organizational into legal fields. In part as a result of this exchange, field logics in general tend to be multiple, contested, and changing.9 The Legalization of Organizations The legalization of organizations is the process through which elements of law and legal principles become relevant to organizations and motivate the infusion of law-like ideas and the creation of law-like structures into organizational governance. Usually prompted by some combination of social movement activity and collectively perceived legal threat, the organizations within a field that are most vulnerable to normative pressure incorporate elements of their legal environment to gain legitimacy, or general societal acceptance.10 Because the public legal order already enjoys legitimacy,11 these organizations tend to create policies that look like legal statutes, grievance resolution mechanisms that look like courts, and a variety of compliance positions that loosely mimic public

The Endogeneity of Law

25

law enforcement. I refer to these structures as symbolic structures because they symbolize attention to law, irrespective of their effectiveness. As noted in chapter 1, symbolic structures exist along a continuum from symbolic and substantive, meaning that they both symbolize attention to law and are effective, to merely symbolic, meaning that they symbolize attention to law without furthering legal ideals. The presence of symbolic structures in turn causes legal values and principles to acquire greater salience and legitimacy, which motivates more organizations within the field to follow suit. As these law-like symbolic structures become more prevalent, they also come to be commonly viewed as rational forms of organizational governance and to spur greater awareness and acceptance of the logic of rules and rights. Thus legalization is a process that occurs over time as fields legitimate forms of private organizational governance that increasingly mimic the public legal arena. But because the managerialization of law occurs along with the legalization of organizations, legalization does not guarantee substantive commitment to legal ideals; rather, it often involves a transformation, as legal ideals are infused with managerial and business values. The Managerialization of Law The managerialization of law is the infusion of managerial or business values and ideas into law,12 and it is spurred by the legalization of organizations. As compliance professionals bring law into the organizational realm, they tend to be influenced by the organizational settings in which they work, by their training, and by their aspirations toward promotion or mobility or power, and thus they adapt ambiguous legal requirements to the needs of the organization or reframe legal constructs in terms more conducive to managerial interests. Compliance professionals could, in theory, adopt the values of social movement activists, which would lead them to implement ambiguous legal requirements in ways that would promote employees’ civil rights over managerial interests. In the context of a capitalist economy and a highly stratified organizational world, however, social movement activists rarely have sufficient power to challenge business interests, and compliance professionals are more likely to adopt interpretations of law that are consistent with capitalist interests or managerial prerogatives.13 Managerialization occurs as legal rules are fi ltered through managerial lenses, which tends to involve a reconceptualization of law so that it

26

CHAPTER TWO

is more consistent with general principles of good management. Some individual managers may elevate legal ideals above managerial ideals, but collectively law tends to be interpreted, framed, and reimagined in ways that elevate managerial ideals above legal ideals. Managerialization may allow organizations to navigate around elements of the law that confl ict most with business values. Further, a critical element of the managerialization of law is that organizations’ symbolic structures become the accepted form of compliance with law. The same interplay between legal fields and organizational fields that promotes a legalization of organizations also carries the managerialized constructions of law back into legal fields. As managerial understandings of law become prevalent, they influence the framing of legal claims and responses to those claims. Lawyers for both employees and employers either consciously or unwittingly assume the validity of managerialized conceptions of law. In particular, they come to accept symbolic structures not just as means of achieving compliance but also as representations of compliance and legality. Judges, administrative officials, and legislators come to incorporate—and ultimately legitimate— managerialized conceptions of law. In so doing, they often fail to scrutinize symbolic structures, so that ineffective structures may serve as indicators of compliance as easily as effective structures do. To the extent that the meaning of law within legal fields is influenced by organizational constructions of law and compliance, law becomes endogenous, or constructed within the social fields that it seeks to regulate. Legalization, Managerialization, and the Limited Success of EEO Law Much has been written about the legalization of organizations in the context of EEO law. Many studies show that organizations have adopted a variety of antidiscrimination policies, affi rmative action plans, diversity offices, and the like.14 As noted in chapter 1, Frank Dobbin’s Inventing Equal Opportunity, Charles Epp’s Making Rights Real, and John Skrentny’s The Ironies of Affirmative Action provide excellent accounts of how legalization has dramatically reshaped organizational governance in the EEO context. But these accounts focus almost exclusively on legalization and, consequently, overlook the managerialization process through which organizations elevate managerial logic over legal logic. The legalization of organizational fields is an important factor in explaining why the workforce status of minorities and women is far bet-

The Endogeneity of Law

27

ter today than it was in the 1960s. The managerialization of legal fields, however, is also important because it helps to explain why minorities and women are still underrepresented in management and professional positions and why they are paid substantially less than white men. By identifying and explaining the processes through which law is managerialized, fi rst in organizational fields and then in legal fields, legal endogeneity theory helps to explain the limited effectiveness of civil rights law and the continuing forms of discrimination and inequality.

The Stages of Legal Endogeneity I now turn to a discussion of the stages through which law becomes endogenous. The early stages predominantly involve legalization whereas the later stages predominantly involve managerialization. Throughout the process, the blurring of legal and managerial logics affects understandings of law and compliance by organizational and legal actors alike. In this section I present each stage generally and then identify its relevance to EEO law. The remaining chapters of the book are organized according to the stages of legal endogeneity and provide empirical examples of how each stage promotes a managerialization of civil rights in the EEO context. I return in the fi nal chapter to the ways in which legal endogeneity applies outside of the EEO context. As shown in figure 2.2, legal endogeneity evolves through six stages: (1) ambiguous law, (2) professional framing of the legal environment, (3) diffusion of symbolic structures, (4) managerialization of law, (5) mobilization of symbolic structures, and (6) legal deference to symbolic compliance. In addition, as shown in the center of figure 2.2, each stage both encourages and is responsive to a managerialization of legal consciousness, a process through which people increasingly think about law and compliance in managerial terms. Because the managerialization of legal consciousness is not a discrete stage, I discuss it primarily in the context of the mobilization of symbolic structures (stage 5). In reality, of course, all these processes are interrelated, and there are many more feedback loops. Rather than muddy figure 2.2, however, I highlight the primary processes through which organizations respond to their legal environments and subsequently influence law and legal institutions. Although figure 2.2 shows the endogeneity cycle beginning with ambiguous law, law is itself the product of social forces,15 so the interplay

28

CHAPTER TWO

Figure 2.2. The stages of legal endogeneity.

between law and organizations begins prior to the passage of ambiguous law. For example, organizations may lobby Congress prior to the passage of a new statute or administrative regulation, and they may fi le amicus briefs with courts prior to a judicial ruling. I begin the endogeneity cycle with ambiguous law, however, to challenge the exogenous vision of law, which sees law primarily as a top- down phenomenon. For statutory law, this means that courts interpret statutes, administrative agencies issue regulations to clarify and implement those statutes, and organizations simply respond to law. By contrast, legal endogeneity theory posits that the formal enactment of a statute initiates a process through which organizational conceptions of law and compliance are gradually incorporated into the rulings of courts, the regulations of administrative agencies, and even subsequent legislation. In other words, even after statutes are enacted or judicial rulings are handed down, organizations construct the meaning of compliance in ways that ultimately influence formal legal institutions and rules. Legal deference to symbolic structures may occur within the judiciary, administrative agencies, or legislatures. Although I briefly discuss the role of legislatures and administrative agencies in legitimating organizational constructions of law, my focus in this book is primarily on the ways in which courts defer to organizational constructions of law. In contrast to the idea, implicit in both liberal-legal and lay understandings of

The Endogeneity of Law

29

the judiciary, that courts are the most independent and impartial of legal institutions,16 I show how courts play a very strong role in rendering law endogenous in the EEO context. Stage 1: Ambiguous Law Rules that regulate organizations tend to be broad and ambiguous and, in some cases, subject to considerable controversy. Legal ambiguity often results from debates in Congress. As various interest groups seek to influence legislation, and as social movement organizations pressure Congress for particular wording, the resulting compromises often substitute broader and more ambiguous statutory language for more specific language or regulate procedure more than substance. Ambiguity may also result from postlegislation political efforts to construct law in particular ways. For example, litigation may yield judicial interpretations that give organizations greater discretion in determining the definition of compliance, or administrative agencies may issue rulings or guidelines that introduce new ambiguities. The fragmentation of federal policy into federal, state, and local rules; federal and state judicial opinions; and federal and state regulatory policy may also increase legal ambiguity.17 Statutory ambiguity generally enhances the potential for managerialized constructions of law to enter legal fields and to affect judicial rulings by leaving organizations wide latitude to fi ll in the gaps or construct the meaning of compliance. When either the original statutes or later interpretations by courts emphasize procedural as opposed to substantive requirements, or render compliance dependent on traits that are difficult to observe (such as employer intent), there is greater potential for employers to comply symbolically and in ways that may mask a lack of substantive change. Statutory ambiguity also provides an opportunity for political interest groups to advocate interpretations of law that favor their interests. Although both employers and employees may attempt to influence the courts, employers have greater resources and opportunities to obtain favorable rulings.18 Chapter 3 provides an overview of the ambiguity of EEO law. I argue that statutory ambiguity led to political debates over the interpretation of EEO law and set the stage for organizations to defi ne the meaning of compliance. In addition, legal ambiguity engendered court battles over the meaning of law that systematically eroded the progressive vision of

30

CHAPTER TWO

civil rights in employment. I show how these judicial developments not only made it far more difficult for employees to redress EEO violations in court but also set the stage for legal endogeneity. Stage 2: The Professional Framing of the Legal Environment Organizations exist in a complex and ever- changing legal environment in which the dissemination of information about legal rules and their meaning is neither simple nor straightforward. Law becomes relevant to organizations only when it is made known to organizational actors. Actors within organizations generally learn about the law not by reading statutes or cases or administrative regulations but rather through compliance professionals who work within organizations or as consultants to organizations. Compliance professionals become interpreters of the legal environment and fi lters through which information about law must pass to become relevant to organizational decision making. Compliance professionals include those who play some role in monitoring the legal environment and in influencing how organizations respond to it. HR professionals, who are generally charged with designing and administering personnel policy, and in-house counsel, who are generally charged with monitoring and managing the legal environment, play key roles in this regard. Further, new compliance professions may emerge in response to or in anticipation of new forms of law: for example, affi rmative action and diversity officers emerged in response to EEO law, safety officers in response to occupational health and safety law, privacy officers in response to privacy law, and environmental officers in response to environmental laws. In addition to in-house compliance professionals, most organizations also have lawyers or law fi rms on retainer to do work that cannot be managed in-house. Various management consultants and fi rms that advise organizations may also participate in the framing of the legal environment. Increasingly, insurance fi rms and insurance professionals play a role in advising organizations on employment discrimination.19 Compliance professionals serve as windows to the legal environment. They frame the environment for organizational administrators and filter information about the salience of various elements of the legal environment. Compliance professionals often heighten that salience by framing law as risk, emphasizing an increasing number of lawsuits against employers and highlighting particularly large awards to plaintiffs. Com-

The Endogeneity of Law

31

pliance professionals within organizations may inflate the risk posed by law in part to encourage change but also in part to gain power by claiming the expertise to reduce risk. 20 Compliance professionals outside of organizations, such as management consultants, outside counsel, or insurance professionals, often emphasize risk to gain a market for their services. The various compliance professions are likely to represent somewhat different visions of the legal environment, reflecting the logics of their professional training and roles. Over time, however, through their interactions within and around organizations and through professional networks, the various compliance professions come to share and to advocate a risk framing of the legal environment. Through the eyes of compliance professionals, other organizational administrators come to understand law as risk and perceive a need to respond to that risk. Chapter 4 explores the role of compliance professionals in framing the legal environment for EEO law. Using empirical examples, I show how compliance professionals make law salient for organizations by framing law as replete with legal risk and framing themselves as the experts who can contain that risk. I discuss the varying roles of lawyers, HR professionals, management consulting fi rms, and insurance agents and show how their perspectives tend to converge in a risk framing of the legal environment. Stage 3: The Diffusion of Symbolic Forms of Compliance Armed with a vision of law and legal threats provided by compliance professionals, actors within organizations seek rational solutions to those threats. The contradictory logics of legal and organizational fields, however, create a dilemma. The rational response to the legal ideals would be to change business practices that compromise or even appear to compromise those ideals. Yet the rational response to the business ideals would be to minimize the capacity of law to intrude on traditional managerial prerogatives or business goals. Hence the dilemma: How can organizations devise forms of compliance that maximize attention to both legal and business ideals? The ambiguity of law offers a potential solution. Where law does not directly dictate how organizations are to comply, savvy organizations may devise forms of compliance that symbolically demonstrate attention to law while maintaining sufficient flexibility to preserve managerial prerogatives and practices that are seen as advancing business goals. By

32

CHAPTER TWO

adopting structures that mimic the public legal order in form, organizations incorporate the ready legitimacy of the public legal order. Viewing the public legal order as a model of legality, organizations create formal rules or policies that look like statutes, offices that look like administrative agencies, and grievance or appeals procedures that look like courts. These symbolic structures demonstrate attention to law and, therefore, lend legitimacy to organizations in the eyes of the law. Yet by adopting these symbolic structures, organizations maintain flexibility to preserve business practices that seem rational by managerializing the law within organizations. Symbolic structures may be merely symbolic, may be both symbolic and substantive, or may fall somewhere in between merely symbolic and substantive. Merely symbolic structures are cosmetic forms of compliance that do little or nothing to effectuate legal ideals within organizations. Structures that are both symbolic and substantive are more effective in bringing organizations closer to legal ideals. But irrespective of their effectiveness, symbolic structures symbolize attention to law and legal principles. Because these structures are law-like in form, they afford organizations the possibility of demonstrating attention to law while adapting or maintaining practices that meet business prerogatives. Because symbolic structures help to reconcile contradictory legal and organizational logics, they come to be seen as successful solutions to the compliance dilemma and, therefore, spread quickly across organizational fields as organizations mimic one another and as compliance professionals advocate symbolic structures as the optimal form of meeting legal obligations. 21 Thus organizational compliance evolves as symbolic forms of compliance acquire increasing legitimacy. Although organization theory has previously identified legal compliance as a form of coercive isomorphism in which law is imposed on organizations, legal endogeneity theory suggests that compliance evolves primarily through mimetic isomorphism (organizations copying other organizations) or normative isomorphism (professional influence). 22 Chapter 5 explores the construction and diffusion of symbolic structures in response to EEO law. The confl ict between legal and managerial goals is especially salient in EEO law, where legal constraints on discrimination challenge managerial prerogatives to make decisions about hiring, promotion, termination, and working conditions. EEO law also comes into confl ict with organizational structures such as seniority  systems, internal promotion ladders, subjective determination of

The Endogeneity of Law

33

skills and leadership, and other institutionalized organizational practices that systematically favor whites and males over minorities and women. I show how organizations resolved that confl ict by creating symbolic structures modeled after the public legal order, such as antidiscrimination policies, EEO offices, and discrimination or sexual harassment appeals procedures—solutions that spread quickly across populations of organizations. Stage 4: The Managerialization of Law The creation of symbolic legal structures and formal governance structures is only the beginning of the process through which organizations defi ne the meaning of compliance. Once in place, these structures become the sites in which the requirements and meaning of law are confronted and negotiated in the context of everyday organizational events. Nearly every time compliance professionals who staff symbolic structures make decisions about organizational operations or policy, they are likely to encounter in some form the confl ict between legal and business ideals. Just as the ambiguity of law creates the potential for symbolic structures, it allows compliance professionals to interpret the meaning of legal requirements in ways that render law closer to business values and managerial prerogatives. As compliance professionals confront the daily issues of organizational governance, they tend to fi ll in the gaps through the shared lens of their education and training, their professional networks, and their particular organizational context. Over time, the meaning of law thus tends to be understood in ways that incorporate managerial logic, values, and ways of understanding the world. There will, of course, be substantial variation in how compliance professionals fi ll in those gaps, especially early on. In some cases, compliance professionals are enthusiastic proponents of legal ideals and confront organizational officials or other employees who appear to be violating the law. When compliance professionals are granted authority and autonomy, and when symbolic structures are designed to achieve specific goals, the structures may act as catalysts that engender the institutionalization of legal values within organizations. 23 In these cases, organizational structures tend to be both symbolic and substantive, and organizational efforts at compliance may even exceed what proponents of the law envisioned.

34

CHAPTER TWO

In many other cases, however, compliance professionals who are steeped in the logic of organizational fields are likely to resolve confl icts between legal and organizational logics in ways that introduce business logic into the meaning of law. As this occurs, law becomes managerialized within organizations, and symbolic structures move further from substance and closer to pure symbolism. The transformation is gradual, subtle, and rarely involves conscious decisions to circumvent the law. While managerialization can result from intentional efforts to circumvent legal requirements, it is more often the unintentional result of addressing everyday problems in ways that infuse law with managerial values and objectives. As compliance professionals use professional networks to fi ll in the details that law has left ambiguous, law within organizations acquires a managerial flavor that may differ in important ways from law within the public legal order. Law, in other words, becomes managerialized or infused with managerial values and interests. The forms of managerialization are likely to vary from one legal regime to another. Managerialization occurs through at least four processes: (1) internalizing dispute resolution; (2) contracting or managing away legal risk; (3) decoupling legal rules from organizational activities; and (4) rhetorically reframing legal ideals. These processes of managerialization may coexist within particular organizations, and certainly coexist within organizational fields. Internalizing Dispute Resolution. Internal dispute resolution (IDR) involves the use of internal complaint procedures, which allow employers much greater control over the resolution of disputes than is the case when those disputes are handled through the formal legal system. Through IDR, complaint handlers may subtly reframe the meaning of law in ways that render it more consistent with business logic. IDR also allows complaint handlers to reframe complaints as instances of poor management or personality confl icts as opposed to rights violations and to devise remedies that are pragmatic for the organization but that de- emphasize law and rights. 24 Contracting or Managing Away Legal Risk. Compliance professionals may also navigate around legal assumptions or standards in a manner somewhat akin to taking advantage of tax loopholes. Organizations can revise rules or employment contracts in ways that navigate around legal risk; for example, they may include predispute mandatory

The Endogeneity of Law

35

arbitration policies in employment contracts or employment handbooks that require employees to waive their right to sue for certain types of violations25 and, somewhat akin to IDR, give employers greater control over disputes that do arise. In some cases, employers can even insure against the risk of legal liability. 26 Strategies of this type tend to be adopted quickly by other organizations as compliance professionals come to see them as successful ways of circumventing liability. Decoupling Legal Rules from Organizational Activities. Even when organizational rules mimic public laws fairly closely, they need not constrain organizational activities. Because it is generally the form rather than the substance of compliance that attains institutionalized status, there is variation in how enthusiastically management embraces legal ideals. By decoupling 27 (or disconnecting) organizational practices from formal organizational policies, organizations may enjoy the legitimacy bestowed by symbolic structures without substantially changing their everyday practices. They may, for example, create policies but encourage managers to ignore them, create complaint procedures but discourage employees from using them, or create plans for compliance that are never implemented. Rhetorically Reframing Legal Ideals. The subtlest form of managerialization occurs through the rhetorical reframing of legal ideals. As law is imported into the organizational setting, managers may reframe legal constructs in ways that subtly alter their meaning. Through rhetorical reframing, ambiguous or politically charged legal constructs may be reshaped in ways that render law less challenging to traditional managerial prerogatives or business practices. 28 All these forms of managerialization tend to render symbolic structures less effective, moving them closer to mere symbolism and further from the substantive achievement of legal ideals. And because all these forms of managerialization involve symbolic structures (such as grievance procedures, contracts, formal rules, and programs), they tend to reinforce the structures’ symbolic value even as they render them less effective. Figure 2.3 illustrates the dynamic through which managerialization renders symbolic structures less substantive (and hence closer to being merely symbolic), and, conversely, how legal activism by compliance professionals renders symbolic structures more substantive (and hence

36

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Figure 2.3. How managerialization renders symbolic structures less substantive.

closer to being both symbolic and substantive). In any given organization, symbolic structures may be more or less effective at promoting legal ideals. Across organizational fields, however, managerialization collectively weakens the capacity of law to overcome business practices that frustrate legal ideals. The four types of managerialization may operate independently or simultaneously to render symbolic structures less substantive. By contrast, when compliance professionals are committed to legal ideals and adopt an activist stance, they can render symbolic structures more substantive. Chapter 6 describes the managerialization of law in the EEO context and offers empirical examples of how the types of managerialization delineated above undermine the legal rights of minorities and women. I show that through managerialization, EEO law has been reframed in ways that render it largely consistent with principles of good management. Employers actively use IDR and mandatory arbitration to divert discrimination complaints from the courts. They revise policies and contracts, redefi ne supervisory roles, and purchase employment practices liability insurance to navigate around legal risk. They decouple their

The Endogeneity of Law

37

antidiscrimination and antiharassment policies from organizational practices. They also reframe the ideals of EEO law in terms of diversity, which tends to undermine attention to race and sex. Stage 5: The Mobilization of Symbolic Structures When social reform laws depend on a private right of action to enforce rights, as opposed to enforcing them through bureaucratic means such as audits and inspections, individuals must mobilize those rights to benefit from them. To mobilize rights, individuals must recognize a rights violation, attribute the violation to a legally responsible party, and take action to seek redress for the violation, a process that is known as “naming, blaming, and claiming.” 29 Symbolic structures inhibit rights mobilization in two important ways: (1) by leading people to view the organization as fair, and (2) by making it easier for organizations to challenge rights mobilization through the countermobilization of symbolic structures. Sociolegal scholars have long recognized that rights mobilization is a complex process and often disadvantages precisely those individuals who were meant to benefit from social reform laws. 30 A large body of research suggests that the vast majority of individuals whose rights are violated take no formal action to redress those violations, especially in the employment context. 31 Many individuals do not recognize when rights violations have occurred. Those who do face myriad obstacles to fi ling legal claims, including fear of retaliation, a belief that legal redress is futile, and a desire to avoid placing oneself in the role of a victim. 32 People who believe their rights have been violated are somewhat more likely to take quasi-legal action such as using an internal grievance procedure (although even that action tends to be rare);33 but the most common response to perceived rights violations is to do nothing or to take very informal steps such as complaining to friends or engaging in prayer. 34 Rights mobilization by rights-bearers depends in part on legal consciousness, or how people understand the meaning of law and rights. As shown in figure 2.2, the process of legal managerialization also produces a managerialization of legal consciousness. In other words, as symbolic structures become more common, people increasingly associate them with legality and compliance, even where managerialization renders the structures merely symbolic. Thus, as legal consciousness becomes managerialized, people come to believe that organizations with symbolic structures are complying with the law, which, in turn makes it less likely

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that they will perceive rights violations, blame the organization, or fi le a claim. Thus, the presence of symbolic structures becomes a strong barrier to rights mobilization by those whose rights have been violated. Organizations, on the other hand, actively mobilize symbolic structures to counter rights mobilization by employees or other rights-bearers who may challenge them in court. Lawyers for organizations advocate the creation of symbolic structures precisely for the purpose of avoiding liability, and did so long before courts endorsed them. When organizations are sued, lawyers for organizations point to the presence of symbolic structures in constructing their defenses, again, even in the absence of law that makes those symbolic structures legally relevant. Organizations in some cases even lobby to have symbolic structures formally recognized in law. Over time, if courts legitimate these structures, then administrative agencies become more likely to recommend them and legislatures to mandate them, which in turn makes it even easier for organizations to use them as a defense to lawsuits. While it might seem likely that plaintiffs’ lawyers, who represent rights-bearers seeking to sue organizations, would challenge the mobilization of symbolic structures, they often do not. As symbolic structures come to be taken as evidence of legal compliance, plaintiffs’ lawyers become more reluctant to bring cases against organizations that have those symbolic structures in place. Plaintiffs’ lawyers are often unaware of the potential for symbolic structures to be ineffective; and even where they are conscious of the coexistence of symbolic structures and rights violations, they often lack access to the types of evidence that might establish the ineffectiveness of these structures. Thus, irrespective of whether an organization is actually complying with the law, the presence of symbolic structures makes rights mobilization far more difficult for those challenging organizations and much easier for lawyers who are defending organizations. Chapter 7 explores the ways in which a managerialized legal consciousness discourages rights mobilization in the EEO context. I show that victims of employment discrimination face myriad barriers to rights mobilization and that symbolic structures make it even less likely that employees will sue under EEO law. Lawyers who represent employees (plaintiffs’ lawyers) often discourage employees from pursuing legal claims if their employers have symbolic structures in place. 35 Lawyers who represent employers (management lawyers) may be more likely to settle claims when the employer has failed to create symbolic legal struc-

The Endogeneity of Law

39

tures and, conversely, to pursue summary judgments or refuse to settle when an employer has those structures in place. 36 In some jurisdictions, moreover, organizations support laws that explicitly treat symbolic structures as evidence of compliance. Stage 6: Legal Deference to Symbolic Compliance As symbolic structures become widely institutionalized indicia of compliance, legal institutions become more likely to defer to symbolic forms of compliance that originate within organizations. Courts tend unwittingly to endorse symbolic structures without evaluating their effectiveness. Legislatures may mandate them without ensuring that they will produce substantive compliance. 37 And administrative agencies may recommend them without any guarantee of their effectiveness. When legal institutions incorporate symbolic structures into their formal rulings, law becomes endogenous. When the symbolic structures are, in fact, effective, then legal endogeneity will achieve or even surpass legal ideals. But when those symbolic structures are merely symbolic, then legal endogeneity condones managerialization and undermines legal ideals. Because organizations are complex entities, judges, legislators, and officials in government agencies cannot easily know or comprehend the intricacies of organizational operations or informal organizational cultures. Rather, they tend to infer legality from the mere presence of symbolic structures. The tendency to defer to symbolic structures irrespective of their effectiveness is particularly problematic in courts. As symbolic structures are increasingly understood to constitute legal compliance, judges become less likely to recognize the ways in which managerialization frustrates legal ideals. Without strong efforts by those challenging organizational behavior to prove the ineffectiveness of symbolic structures, judges are unlikely to recognize (or even consider the possibility) that internal dispute resolution processes may fail to redress legitimate complaints; that organizations may evade meaningful compliance by contracting or managing away legal responsibilities; that formal policies may be decoupled from organizational practices; or that organizations may rhetorically reframe law in ways that frustrate legal ideals. Thus, judges become more likely over time to infer compliance from the mere presence of symbolic structures. Judges legitimate managerialized conceptions of law through a process of reference, relevance, and deference, which represent progressive

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stages of legal endogeneity. Judges initially incorporate organizational structures into their decision making simply by referencing those structures in their opinions. Over time judges become more likely to fi nd institutionalized organizational structures relevant to whether legal violations occurred. And fi nally, in some instances structures become so closely associated with rationality and legal compliance that judges no longer scrutinize them, deferring to the mere presence of symbolic structures. Reference is an early stage of legal endogeneity, indicating that symbolic structures have entered the judicial lexicon. Relevance is an intermediate stage, indicating that symbolic structures have become more closely associated with legal compliance. Deference is the most extreme form of legal endogeneity, in which judges replace meaningful legal analysis of compliance with organizational symbols of compliance. Judicial deference to organizations’ symbolic structures prevents courts from distinguishing those organizational structures that are effective and protect employees’ legal rights from those structures that are merely symbolic and do little to advance justice. The increasing legitimacy of symbolic structures in organizations and throughout organizational fields may lead administrative agencies and legislatures to defer to them as well. As administrative agencies issue guidance for compliance, they are likely to take into account compliance practices that become widely accepted in organizational fields. As is the case with courts, administrative agencies are rarely aware of the processes of managerialization that render symbolic structures ineffective. Further, as symbolic structures become increasingly accepted, and especially when courts or administrative agencies condone them, legislatures may incorporate them into formal rules. Chapter 8 discusses the mechanisms through which judges come to incorporate organizational structures into their legal thinking and decisions and provides evidence of those mechanisms in the EEO context. I present empirical evidence from social psychology, which shows how symbolic structures may subtly influence judicial thinking, priming judges to believe that employers who have instituted these structures are fair and nondiscriminatory. 38 I also present an empirical study that illustrates increasing judicial deference to organizational structures over time in federal EEO cases. Although the focus of chapter 8 is on legal endogeneity in judicial decision making, I also present an empirical analysis of EEOC guidelines that shows how the EEOC is also subject

The Endogeneity of Law

41

to legal endogeneity, and I discuss the interplay between the EEOC and the courts.

Symbols as Law Legal endogeneity thus challenges the notion that law is an exogenous, coercive, downward force on organizations. It suggests that, especially where law is ambiguous, compliance is a process that evolves as compliance professionals confront the daily challenges of organizational governance. Law often creates a dilemma that requires compliance professionals to negotiate between contradictory legal and organizational logics. Legal ambiguity offers a solution by facilitating the creation of symbolic structures that demonstrate attention to law while leaving room to maneuver in ways that often elevate business logic over legal ideals. These symbolic structures gradually acquire legitimacy not only within organizational fields but also within legal fields. As lawyers, administrative officials, legislators, and judges come to equate symbolic structures with legal compliance, formal law condones and legitimates managerialized forms of compliance. The symbol, in essence, becomes the law.

CHAPTER THREE

Ambiguous Law and the Erosion of the Progressive Vision in the Courts

I

n this chapter,1 I show how ambiguity in civil rights legislation led to a battle in the courts that gradually diminished the potential of EEO law as a tool for social change and put in place precedent that generally favored employers. I also show how these changes in judicial doctrine set the stage for legal endogeneity. Many excellent books and articles by legal scholars provide more detailed accounts of the statutory requirements of EEO law and the judicial doctrine interpreting EEO law. 2 My goal is not to replicate those legal analyses but rather to provide social science readers with an overview of Title VII jurisprudence and to provide legal readers with a sense of the contradictions between legal doctrine and social science knowledge about discrimination. To the extent possible, I describe the legal doctrine in nontechnical terms in the text and provide more detail in the notes. EEO law comprises a broad array of legislation, constitutional doctrines, executive orders, and administrative regulations. The landmark civil rights legislation in employment was Title VII of the 1964 Civil Rights Act, 3 which prohibits discrimination on the basis of race, color, sex, national origin, and religion.4 Other major early civil rights legislation includes the Age Discrimination in Employment Act of 1967, 5 which prohibits employment discrimination based on age (forty and older); the Equal Pay Act of 1963,6 which requires that women receive equal pay for equal work performed by male employees; the Rehabilitation Act of 1973,7 which prohibits government agencies and contractors from discriminating on the basis of disability; and two post– Civil War civil rights statutes: 42 U.S.C. § 1981, which prohibits race- and ancestry-

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43

based discrimination in the making and enforcement of contracts, including employment contracts; and 42 U.S.C. § 1983, which provides a statutory basis for asserting violations of the equal protection clause of the Fourteenth Amendment, including those involving alleged employment discrimination.8 Several executive orders also play an important role in civil rights regulation. In particular, Executive Order 11246,9 issued by President Lyndon Johnson in 1965, prohibits discrimination and requires affi rmative action among federal contractors. More recent civil rights legislation includes the Americans with Disabilities Act of 1990,10 the Civil Rights Act of 1991,11 and the Family and Medical Leave Act of 1993.12 To make my analysis manageable, and because of the significance of Title VII for other areas of civil rights law, I focus primarily on Title VII in this chapter. I also focus on issues regarding race and sex, although Title VII also precludes discrimination on the basis of religion and national origin.

Ambiguity in Title VII Perhaps the most salient feature of Title VII is what it does not do: Title VII does not specify the meaning of the term discrimination—nor is it clear about the types of evidence courts should consider in determining whether discrimination occurred.13 At the beginning of Title VII, there are defi nitions of many terms, including person, employer, employment agency, labor organization, employee, and commerce, but not of the term that is arguably most important to the act: discrimination. And although Title VII establishes the Equal Employment Opportunity Commission, it never explicitly defi nes equal employment opportunity. This ambiguity results in part from the long and arduous process of political debate and compromise that fi nally led to the passage of the Civil Rights Act of 1964.14 But the passage of the act hardly ended the debate, which continued both on the political front and in the courts. Ambiguous legal language constitutes contested terrain for social and political actors. The struggle over the meanings of discrimination and equal employment opportunity would have critical implications for the success of civil rights law in achieving racial and gender equality. Title  VII was arguably open to two broad interpretations.15 Under a more conservative interpretation, which emphasized equality of treatment, equal employment opportunity would require race- and gender-

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blind policies. Animus-based intentional discrimination would be illegal, but so would race- or gender-based policies designed to achieve greater equality in the workplace. This vision was favored by the civil rights defense bar and others who sought to minimize the impact of law on business interests and managerial prerogatives. The progressive vision focused on equality of outcome and sought a more expansive understanding of discrimination to include any practices that placed protected groups—principally racial minorities and women16—at a disadvantage in the workplace. This vision would permit race- and gender- conscious policies designed to achieve equality or to eliminate unjustified barriers to women’s and minorities’ advancement. Civil rights advocacy groups and the civil rights plaintiffs’ bar,17 which wanted to use the law to attack race and gender inequality in the workplace, favored the progressive vision. The debate over these two very different understandings of equal employment opportunity—and of what actions constitute discrimination—has taken place in the executive, legislative, and judicial branches of government, both leading up to and following the passage of Title  VII. Extant social science scholarship on the topic, including work by Hugh Davis Graham,18 John Skrentny,19 Alfred Blumrosen, 20 Michael Sovern, 21 Nicholas Pedriana and Robin Stryker, 22 and Frank Dobbin, 23 has focused predominantly on the executive and legislative branches, often emphasizing developments in the 1960s and early 1970s. This scholarship tends to emphasize support for the progressive vision by Presidents John F. Kennedy, Lyndon B. Johnson, and Richard M. Nixon as well as in the administrative agencies charged with enforcing Title VII and the executive orders. It tends, however, to neglect a longer-term trend, in which the federal courts moved toward the more conservative vision of equal employment opportunity and erected procedural barriers that systematically favor employers. I draw on the extant scholarship to review the highlights of the debate over the meaning of equal employment opportunity in the executive and legislative branches before turning to the important role of the courts. Kennedy, Johnson, and the Debates over the Meaning of Equal Employment Opportunity Kennedy had made progress on civil rights a focus of his 1960 campaign. Upon taking office, he appointed Vice President Lyndon John-

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son to head his equal employment committee. Johnson recommended that Kennedy create a new committee called the President’s Committee on Equal Employment Opportunity (PCEEO) and that government contracts be revised to require not only the standard nondiscrimination clause but also an affirmative duty to treat employees on the basis of their qualifications rather than because of “race, creed, color, or national origin.” 24 The undefi ned affi rmative duty became affirmative action in Kennedy’s 1961 Executive Order 10925, which created the PCEEO and included the following requirement for federal contractors: The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affi rmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. 25

As civil rights advocacy groups and protests called attention to the wide economic gap between white and black Americans in the early 1960s, 26 the use of the term affirmative action in connection with the mandate to avoid discrimination would raise important questions about the legality of race- conscious hiring among federal contractors more specifically, and the government’s position on race- conscious hiring more generally. The Congress of Racial Equality organized boycotts against major fi rms such as Pepsi- Cola and Esso, and persuaded twenty-four fi rms to agree to specific hiring goals for blacks. 27 Other black advocacy groups took up the call for race-specific hiring goals, and some businesses began to adopt race- conscious hiring practices designed to bring more blacks into the workforce. But the issue of race- conscious hiring and racial quotas was seen by many, including organized labor, as a zero-sum game that would harm “innocent” qualified white applicants and employees, 28 and it quickly became a hot button issue as Congress debated the civil rights bill. The debate, detailed in Graham’s book The Civil Rights Era, eventually led to the addition of section 706(g) to Title VII, which introduced the language of intentional discrimination: If the court fi nds that the respondent has intentionally engaged in or is intentionally engaging in, an unlawful employment practice . . . the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affi rmative action as may be appropriate. 29

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Although Senator Hubert Humphrey, who would become vice president under Johnson, successfully mobilized support for Title VII among Senate conservatives by assuring them that this language would preclude the act from being interpreted to require racial preferences (or affi rmative action), his assertion did not prevent civil rights advocates from later arguing that affi rmative action was consistent with the purpose of Title VII. 30 Legal scholars, moreover, fi nd support in the legislative history for both the color-blind and the race- conscious interpretations of the act. 31 The passage of Title VII in 1964, of course, did not end the debate over race- conscious hiring. Just one year after the passage of Title VII, Johnson issued Executive Order 11246, 32 which superseded Executive Order 10925 but incorporated its ambiguous language regarding affi rmative action for government contractors. 33 In 1967 Johnson issued Executive Order 11375, 34 which amended Executive Order 11246 to prohibit sex discrimination and to require affi rmative action to promote equality on the basis of sex. By the late 1960s, responding to violent protests that captured the media’s attention, the Johnson administration funneled federal funding into black community action programs;35 around the same time, some business elites advocated hiring blacks to ease the social crisis, and some major employers in regions with large black populations actively sought to hire blacks. 36 Johnson also created the National Advisory Commission on Civil Disorders, known as the Kerner Commission, to investigate the causes of the 1967 race riots. Issued in 1968, the Kerner Report emphasized a lack of economic opportunity for blacks as the source of the riots and advocated new government programs to encourage black employment, diversify police forces, and reduce residential segregation. 37 In the wake of the Kerner Report, and of the murder of Martin Luther King Jr. in 1968, Richard Nixon campaigned on, and later supported the idea of, race- conscious hiring. In short, Presidents Kennedy, Johnson, and Nixon all lent support to the progressive vision of equal employment opportunity. Government Contractors, Office of Federal Contract Compliance, and the Ambiguous Affirmative Action Obligation The tension between the conservative and progressive visions of equal employment opportunity was particularly salient for government con-

Ambiguous Law and the Erosion of the Progressive Vision

47

tractors, who were subject not only to Title VII but also to the executive orders and the regulations of the Labor Department’s Office of Federal Contract Compliance (OFCC), which had been created by President Franklin D. Roosevelt in 1941 to curb race discrimination among defense contractors. 38 Charged with enforcing Johnson’s Executive Order 11246, the OFCC had to contend with ambiguity over the meaning of the affi rmative action requirement for government contractors and objections by conservatives who argued that race- conscious hiring was inconsistent with the language of Title VII. The OFCC began to articulate its vision of affi rmative action with its 1967 Philadelphia Plan, which focused on the recipients of government construction contracts in order to address the serious underrepresentation of minorities in the building trades. The program was race- conscious in that bidders had to produce specific plans for hiring minority workers in each category of craft workers; and if awarded a contract, had to produce the promised number of minority workers. 39 Opponents characterized the plan as a quota plan and it led to contentious debates in Congress over the legality of race- conscious hiring. Amid considerable turmoil, the Labor Department under Johnson rescinded the initial Philadelphia Plan in 1968, but in 1969 the new Nixon administration instituted a revised Philadelphia Plan. To avoid the appearance of quotas, which conservatives argued were a violation of Title VII, the revised plan required numerical hiring ranges, called “goals,” for minority workers in certain categories of construction work and required contractors to make a “good faith effort” to achieve those goals.40 Even with the softened language, the plan brought the confl ict over the meaning of equal employment opportunity and affirmative action to a head in what Pedriana and Stryker term “political culture wars” in Congress.41 Opponents of the Philadelphia Plan mobilized the symbolism of color-blind equal opportunity and meritocracy, claiming that the “plain meaning” of Title VII as well as the legislative history precluded raceconscious hiring. Supporters conceded that Title VII precluded quotas but contended that goals were completely consistent with the broad goal of equal employment opportunity and were legal under Title VII because they were linked to the substantial underrepresentation of minorities in the construction trade.42 Efforts in Congress to dismantle the revised Philadelphia Plan failed, and in 1970 the district and circuit courts upheld the plan under both Title VII and Executive Order 11246.43

Chapter Three

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Also in 1970, the OFCC issued its fi rst guidelines on the affi rmative action obligation for all government contractors with contracts worth $50,000 or more, stating in its Order 4: The rate of minority applicants recruited should approximate or equal the ratio of minorities to the applicant population in each location.44

The order, which had been issued without proper opportunity for review and comment, was immediately denounced as requiring quotas and was withdrawn by OFCC director John Wilks.45 It was replaced by Revised Order 4, which modified the earlier language by making it more ambiguous, requiring federal contractors with fi fty or more employees and contracts of $50,000 or more to conduct “utilization analyses” to examine the representation of women and minorities in their workforces.46 Where these analyses showed underutilization relative to the available workforce, contractors were to set goals and timetables to improve their utilization. The language regarding goals, timetables, and affi rmative action, however, was seemingly contradictory: Section 60-2.12(e) specified this language: Goals may not be rigid and inflexible quotas which must be met, but must be targets reasonably attainable by means of applying every good faith effort to make all aspects of the entire affi rmative action program work.47

But section 60-2.12(g) and (h) reads this way: Goals, timetables, and affi rmative action commitments must be designed to correct any identifiable deficiencies. . . . Where deficiencies exist and where numbers or percentages are relevant in developing corrective action, the contractor shall establish and set forth specific goals and timetables separately for minorities and women.48

The ambiguity of a specific but flexible goal remained in the order, a concession to the political debate over the meaning of equal employment opportunity. Federal contractors were theoretically subject to revocation of their contracts or debarment from future contracts for violations, although the OFCC rarely used its debarment power. Instead, it enforced the order primarily by conducting desk audits and on-site compliance re-

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49

views as well as by conducting investigations in response to complaints. Where deficiencies were found, contractors were usually required to sign a conciliation agreement that outlined steps to be taken.49 Those steps, in turn, generally involved changes to personnel policies rather than hiring quotas or specific goals. 50 The Department of Labor, then, endorsed the progressive vision by supporting race- conscious hiring, but its guidelines requiring flexible goals left the parameters of legal affi rmative action undefi ned. The Equal Employment Opportunity Commission: Weak Authority but a Strong Early Stand In passing Title VII, Congress created an enforcement agency, the Equal Employment Opportunity Commission, but it was weak by design. Until the passage of the Equal Employment Opportunity Act of 1972, 51 which amended Title VII to give the EEOC authority to sue private organizations in federal court, the EEOC was constrained to a role of investigation and conciliation. Even since the 1972 act, lawsuits brought by the EEOC have been relatively infrequent and limited to cases where there is a systemwide “pattern or practice” of discrimination. Title VII provides that the EEOC has sixty days after a complaint is fi led to investigate and attempt conciliation. If conciliation fails, the EEOC has thirty days to issue a right-to-sue letter, which gives the complainant the option of fi ling a private lawsuit in federal court. Thus, Title VII enforcement depends primarily on individual employees’ fi ling lawsuits in federal court to seek redress for rights violations. In The Litigation State, Sean Farhang showed that the combination of a weak administrative agency and a private right of action was the result of political wrangling and, ultimately, a compromise between liberal Democrats, who initially favored a strong enforcement agency and no private right of action, and conservative Republicans, who opposed a strong enforcement agency and argued instead for a private right of action. 52 Southern Democrats were the strongest opponents of the bill. But in light of strong social movement pressure for civil rights, nonsouthern Democrats and Republicans who supported the bill compromised by voting for enforcement through private lawsuits together with a relatively weak EEOC. Despite the EEOC’s weak authority and meager enforcement resources, Pedriana and Stryker argued that the agency was able to use

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law as a resource by seeking a broad construction of the meaning of Title VII. 53 Initially, civil rights groups, in particular the NAACP Legal Defense Fund, sought to swamp the EEOC with complaints to demonstrate its weakness. Lacking the staff or funding to handle the nearly three thousand complaints fi led by December 1965, the EEOC focused its efforts on the segregated workplaces and unions of the South, where overt and intentional discrimination had generated an enormous number of complaints. Pedriana and Stryker argued that this strategic solution to the administrative problem planted the seeds for a more aggressive legal strategy: by attacking the rampant and overt discrimination in the South, the EEOC encountered little resistance from employers and unions and was able to make progress relatively quickly. 54 Buoyed by its early success, by the late 1960s the EEOC began to tackle the more difficult problem of seniority systems and employment tests that were seemingly neutral and yet greatly disadvantaged blacks and other minority workers. Through its own guidelines and through amicus briefs fi led in connection with Title VII lawsuits, the EEOC sought a broad defi nition of discrimination, which would include not only intentional discrimination but also the discriminatory effects of common employment practices that placed minorities and women at a disadvantage. 55 In the 1968 case Quarles v. Philip Morris, 56 a federal district court drew on an EEOC amicus brief in ruling that seniority systems that perpetuated the effects of past discrimination violated Title VII, a major victory for the EEOC and civil rights groups. Although this reasoning would be invalidated by the US Supreme Court less than a decade later, 57 it opened the door for an outcome-based understanding of equal opportunity. Even more important, the EEOC worked with civil rights advocacy groups to advance the progressive vision of equal employment opportunity in the context of employment testing. In 1966 the EEOC issued guidelines suggesting that employment tests should be professionally developed and validated against the specific requirements of the job, and it repeatedly found legal merit in cases where testing had an adverse impact on minority employees. 58 The EEOC position influenced the US Supreme Court’s 1971 decision in Griggs v. Duke Power Co., 59 which embodied the progressive vision of equal employment opportunity. Thus, Pedriana and Stryker showed that despite its initial lack of enforcement authority, the EEOC, working with civil rights advocates and creative litigators, was able to use the ambiguity of Title VII to push the courts in

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the direction of a broader, more progressive understanding of equal employment opportunity.60 At least in the early years, then, the EEOC endorsed the progressive vision of equal employment opportunity. Political and EEOC support for affi rmative action would wane under the Reagan administration, but as Pedriana and Stryker pointed out, the early efforts of political leaders, social advocacy organizations, and the EEOC and OFCC led to substantial improvements in the workforce status of minorities and women, institutionalized some aspects of the progressive vision, and made it harder for those who wished to dismantle progressive efforts.61 Why the Courts Matter in Defi ning EEO Law Although extant accounts have demonstrated support during the 1960s and early 1970s for the progressive vision of equal employment opportunity, the ambiguity over the meaning of discrimination remained. Precisely because Congress gave few formal powers to the EEOC and relied primarily on a private right of action to enforce Title VII,62 the federal judiciary came to play a central role in resolving the legal ambiguity that had been codified in Title VII, in executive orders, and in OFCC’s Revised Order 4. Ultimately, the legal meaning of discrimination and of equal employment opportunity would be determined not in the legislative and executive branches of government but in the courts, in the context of particular employer policies and practices. Although the social science scholarship on civil rights provides great insight on the evolution of equal employment opportunity in the executive and legislative branches, it leaves the story of the evolution of judicial doctrine interpreting Title VII largely untold. These accounts do mention pockets of judicial doctrine, often highlighting cases such as Griggs that support the progressive vision. Yet an analysis of judicial doctrine interpreting Title VII, especially in the later years, reveals a different and more complicated story. Although EEO jurisprudence during roughly the fi rst decade after the enactment of Title VII saw a number of developments that embraced the progressive outcome-based vision of equal employment opportunity, subsequent developments have slowly but systematically tended to move toward the conservative vision, and in particular toward the requirement of proving intentional discrimination. Beyond the substantive erosion of the progressive vision, moreover, the courts have instituted a series of procedural obstacles that have

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received almost no attention in the social science literature yet have dramatically limited the capacity of EEO law to protect the rights of minorities and women. In the remainder of this chapter, I focus on how the federal judiciary— primarily the US Supreme Court—has changed the rules of the game in ways that have gradually weakened the private right of action as a tool for combating discrimination and inequality in the workplace. I cannot cover every development in EEO doctrine, but I do cover the major theories of discrimination and important procedural developments that affect the parties to civil rights litigation. I begin by outlining the two primary theories of discrimination that evolved during the early years of Title VII litigation: disparate treatment and disparate impact. I then turn to a number of trends in EEO jurisprudence that have gradually weakened the capacity of litigation to protect the rights of minorities and women. My focus in this chapter is on how courts have moved gradually away from the progressive vision. In part 3 I show how the erosion of the progressive vision set the stage for courts to defer to constructions of compliance that have evolved within organizations.

The Early Development of Disparate Impact and Disparate Treatment Doctrine In the early years of civil rights litigation, the courts outlined two primary models (sometimes called “theories”) of discrimination within civil rights jurisprudence: disparate impact and disparate treatment, which are roughly parallel to the progressive and conservative visions of Title VII described above. As Alan Freeman noted long ago, disparate impact is an effects-based conception of discrimination that focuses on the impact of employment practices on protected groups, and is thus well suited to addressing institutionalized forms of inequality. Disparate treatment, in contrast, limits discrimination to the intentional acts of biased perpetrators, making it useful for addressing overt bias but little else.63 There are two broad types of disparate treatment claims: individual and systemic. Both are intent-based but involve different standards for proof. There are a number of related models that pertain to particular types of offenses such as sexual harassment, religious discrimination, and retaliation. I discuss sexual harassment doctrine, which evolved out of disparate treatment doctrine, later in this chapter. I present the basic

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structure of the disparate impact and disparate treatment theories, and then discuss doctrinal trends that have changed the legal landscape. Disparate Impact Theory Disparate impact theory, established by the Supreme Court in Griggs in 1971, was among the earliest and also the most progressive theories of discrimination ever articulated by the Court, principally because it does not require the employee (almost always the plaintiff in employment discrimination cases) to prove that the employer (almost always the defendant in employment discrimination cases) intended to discriminate.64 Rather, under disparate impact theory, employment practices that are facially neutral (e.g., strength requirements or written tests required for promotion) but have an adverse impact on members of a statutorily protected group (e.g., women or minorities) are discriminatory unless employers can justify them as a “business necessity.” If an employer does establish business necessity, the employee can still prevail by showing that there is a less discriminatory alternative practice that meets the employer’s business interests.65 Disparate impact doctrine had enormous potential to challenge institutionalized employment practices that put women, minorities, or other protected groups at a disadvantage.66 As I will show later in this chapter, however, disparate impact theory has been seriously weakened by a series of modifications that narrow its applicability and favor employers.67 Individual Disparate Treatment Theory In contrast to disparate impact, disparate treatment theory places the focus of the analysis squarely on the intent of the employer and is therefore more consistent with the conservative vision of equal employment opportunity.68 Intent can be proved either through direct or circumstantial evidence, although the latter is far more common because most employers today are sufficiently knowledgeable about law to avoid direct statements (of the “I refuse to hire women for this position” variety). The standard for proving disparate treatment with circumstantial evidence was fi rst articulated in McDonnell Douglas Corp. v. Green 69 in 1973 and later modified in Texas Department of Community Affairs v. Burdine.70 The McDonnell Douglas– Burdine framework requires that the employee fi rst establish a prima facie case of discrimination71 by proving that (1) the

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employee is a member of a protected class, (2) the employee is qualified for the job, (3) the employee was subject to an adverse employment action, and (4) the “circumstances . . . give rise to an inference of unlawful discrimination.” 72 If the employee successfully establishes a prima facie case, then the employer must produce, and provide some evidence for (but not prove), a “legitimate, nondiscriminatory reason” for the adverse employment action.73 Once the employer articulates a legitimate nondiscriminatory reason, the employee must prove that the actual motivation was discriminatory, either by presenting direct evidence of the employer’s motive or by showing that the employer’s stated reason is mere pretext.74 I show below that most litigation under Title VII currently employs individual disparate treatment theory even though the theory fails to address the types of discrimination that are most prevalent today. Systemic Disparate Treatment Theory Whereas most of disparate treatment doctrine addresses individual claims (and is therefore sometimes referred to as individual disparate treatment), the doctrine can also be used to address class-based claims or claims based on a pattern or practice of discrimination against an entire class (referred to as systemic disparate treatment theory).75 Systemic disparate treatment cases are generally litigated either as class actions brought by a group of employees who have experienced a common rights violation or as pattern or practice actions brought either by the EEOC (against private employers) or by the US Department of Justice (against state or local government employers).76 Some systemic disparate treatment cases challenge policies that make explicit distinctions on the basis of race or gender,77 such as a policy requiring women to make larger pension contributions than men based on their longer life expectancy78 or affi rmative action plans or programs.79 In systemic cases that challenge employment practices rather than explicit policies, the method of proof is similar to individual disparate treatment cases that rely on the McDonnell Douglass– Burdine framework, except that greater emphasis is placed on statistical methods. Continuing Ambiguity The disparate impact and individual and systemic disparate treatment theories specify different ways of understanding what discrimination

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is and how it can be proven. In the early years of Title VII jurisprudence, they held the promise—especially when considered together—of a legal regime that would substantially reduce discriminatory organizational practices by recognizing that discrimination could originate either in neutral practices that had an adverse impact on a protected class or in practices that intentionally discriminated against employees in a protected class. But as I show below, the courts gradually put in place a series of constraints on disparate impact doctrine so that it could be used only in a fairly narrow set of circumstances, which left most potential plaintiffs in the position of having to prove intentional discrimination. The developments that I describe below are important not only because they have weakened the law as a tool for fighting discrimination and inequality in the workplace, but also because—as I show in subsequent chapters—they created the conditions under which judges would be more likely to equate organizations’ symbolic structures with the achievement of civil rights.

The Erosion of Disparate Impact and the Rise of an Intent-Based Jurisprudence Many US Supreme Court decisions on disparate impact in the 1970s, and some in the 1980s, were favorable to employees. In Albemarle Paper Co. v. Moody, decided in 1975, 80 the Supreme Court clarified the method of proof, holding that the employer must “show, by professionally acceptable methods [that its selection methods are]  .  .  . predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated” in order to establish business necessity. The Court further held that the plaintiff may still prevail, even after the employer has proved business necessity, by showing that another method with less disparate impact would also serve the employer’s objectives.81 In 1977, the Supreme Court held in Dothard v. Rawlinson 82 that at least under some circumstances, the employee could use general population data rather than applicant statistics to show disparate impact. The Court also held that employers had to present specific evidence of job relatedness and could not rely on commonsense assumptions, such as the employer’s unsupported claim that height and weight requirements, which put women at a disadvantage, were correlated with strength and, therefore,

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were job related. In 1982, the Court held in Connecticut v. Teal 83 that a practice that disproportionately excluded minorities was illegal even if the employer ultimately hired or promoted minorities in greater proportions than whites. And in 1988, the Court ruled in Watson v. Fort Worth Bank84 that subjective selection practices could be challenged under the disparate impact theory. These cases were consistent with the progressive vision of equal employment opportunity. The Narrowing of Disparate Impact Yet within the fi rst decade after the 1971 Griggs decision, federal courts began to narrow the applicability of disparate impact doctrine within the Title VII context and to make clear that it was not available in some other contexts. In 1976, the Supreme Court ruled in Washington v. Davis 85 that disparate impact doctrine was not available for claims brought under the equal protection clause of the Constitution. In a 1977 case, International Brotherhood of Teamsters v. United States, 86 the Court exempted bona fide seniority systems from disparate impact theory even when they operate to perpetuate the effects of pre–Title VII discrimination against minorities. Because seniority systems tend to favor whites and males, this decision was a significant defeat for the progressive idea that equal employment opportunity should be outcome oriented. In 1979, the Court’s decision in New York City Transit Authority v. Beazer 87 made it easier for employers to defend against disparate impact claims by implicitly weakening the standard for establishing “business necessity.” The same year, the Court held in Personnel Administrator of Massachusetts v. Feeney 88 that the disparate impact theory could not be used in equal protection cases brought under section 1983, and in 1982, the Court ruled in General Building Contractors Association v. Pennsylvania 89 that disparate impact theory did not apply to cases brought under section 1981.90 In 1989 amid political and media framing of disparate impact theory as promoting quotas,91 the Court dealt a significant blow to disparate impact doctrine as a tool for combating discrimination in Wards Cove Packing Co. v. Atonio 92 by requiring employees to identify the specific employment practice causing the disparity,93 by replacing the “business necessity” standard with a weaker “legitimate business purpose” standard while shifting the burden of persuasion onto the plaintiff to prove that the practice was not justified by such a purpose,94 and by requiring

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that an employee offering a less discriminatory alternative to show that it was “equally effective.”95 Congress reacted to Wards Cove and several other conservative decisions issued in the same year by passing the 1991 Civil Rights Act,96 which was intended to scale back some of the 1989 Supreme Court changes. But the act left substantial ambiguity as to what the law requires of employers seeking to justify their selection practices or of plaintiffs seeking to prove the availability of alternative practices with less disparate impact.97 In a 2009 case, Ricci v. DeStefano,98 the City of New Haven Fire Department was sued for “reverse discrimination” after it chose not to use the results of the promotion exam in which minorities who took the test had scores that were far lower than those of nonminorities. The Supreme Court ruled that the fi re department, in seeking to avoid disparate impact on minorities, had engaged in disparate treatment of whites.99 The Ricci decision is not only another impediment to disparate impact theory100 but also creates substantial ambiguity about employers’ affirmative action efforts by increasing the number of actions that may be subject to reverse discrimination claims. Thus, the initial promise of the disparate impact doctrine has over time been dramatically curtailed. The Supreme Court’s 1971 Griggs decision in the Title VII context appeared to endorse a broad view of discrimination, which would look to the effects of organizational policies and would invalidate policies that adversely affected any legally protected groups. Since then, however, the courts have gradually narrowed the applicability of disparate impact doctrine. Although disparate impact theory may still be used for Title VII employment testing cases and in a handful of other situations, the courts have largely retreated to a narrow view of discrimination that requires a biased perpetrator who intentionally engages in disparate treatment. Further, lawyers tend to shy away from bringing disparate impact claims because they are inherently demanding in terms of proof required to establish an adverse impact101 and offer limited potential for damages.102 Numerous legal scholars have commented on the near demise of disparate impact doctrine. Michael Selmi wrote in 2005 that courts in recent years appear far more willing to accept employers’ validation efforts and less likely to fi nd disparate impact.103 Noah Zatz wrote of a “deep-seated hostility to disparate impact analysis and, more generally, to any theory of liability that defi nes wrongful ‘discrimination’ without reference to discriminatory intent.”104 Thus, in the vast majority of EEO

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cases, plaintiffs’ lawyers must use disparate treatment theory, which requires proof of discriminatory intent. Empirical Evidence of the Demise of Disparate Impact and the Rise of Disparate Treatment Figure 3.1 shows the prevalence of disparate impact and disparate treatment by year from 1973 through 1999 in a representative sample of 1,024 federal civil rights cases.105 By about 1980 courts had in effect defi ned discrimination as an intentional act, and by 1999, twenty- eight years after Griggs, about 90 percent of all claims were brought under disparate treatment theory. The decline of disparate impact cases and the rise of disparate treatment cases are particularly dramatic in the district courts. Disparate impact cases remain extremely rare today, and are used most often in employment-testing cases.106 How the Demise of Disparate Impact Weakens the Potential of Civil Rights Law The demise of disparate impact doctrine and the concomitant rise of an intent-based jurisprudence dramatically weaken the potential of EEO law to address discrimination in the modern workplace. An effective method of addressing the types of overt discrimination that characterized the Jim Crow era, disparate treatment doctrine is much less effective at addressing the more structural and cognitive types of discrimination, discussed in chapter 1, that are more common in today’s workplace. Individual disparate treatment theory, by requiring plaintiffs’ lawyers to locate discrimination in a particular actor or set of actors who intended to discriminate, simply fails to grasp the nature of discrimination and inequality in the modern era. Employers today are much more likely to employ stereotypes about leadership skills or work commitment that favor white males than they are to overtly ban women or minorities from leadership positions. Internal labor markets, sex and race segregation in the workplace, social and professional networks that provide paths to employment and training, and patterns of mentoring systematically favor whites and males irrespective of the conscious intent of managers. And coworker harassment, together with subtle pressures for minorities to act white and for women to walk a narrow line between professionalism and femininity, make it harder for these groups to succeed even

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Figure 3.1. Percentage of opinions involving disparate impact and disparate treatment by year, five-year moving average.

when managers are strongly committed to equality. Disparate treatment theory was not designed to address these forms of disadvantage, making litigation to redress these discriminatory practices an uphill battle.107 Systemic disparate treatment theory would seem somewhat more appropriate for addressing organizational practices that place women and minorities at a disadvantage. Yet even in these cases, proof of discriminatory motive is required; by the mid-1980s, proving causation had become very difficult for plaintiffs’ attorneys due to complicated issues involving mixed motives,108 subjective decision making,109 and statistics.110 Courts became increasingly reluctant to infer intent from statistical disparities alone and generally required plaintiffs to prove that a particular organizational practice had caused the statistical disparity.111 Even if statistical disparities could be attributed to a defi nitive cause, neither validation studies nor statistical techniques are well suited for proving bias in subjective decision-making processes. Management attorneys have often succeeded in offering alternative rationales for statistical disparities, such as the argument that women lack interest in traditionally male jobs that carry higher pay and status.112 There is a mismatch, then, between legal requirements for proving disparate treatment and social science knowledge regarding the nature

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of discrimination in organizations.113 Disparate treatment doctrine envisions a malicious supervisor or bias- driven organizational practice as the source of discrimination, whereas social science scholarship shows that racial and gender inequality at work is complex, messy, and rarely attributable to a single source. Disparate impact doctrine once held the promise of an EEO jurisprudence that would rectify discriminatory practices based on their effects, obviating the need to pinpoint a specific cause. But the erosion of disparate impact doctrine, combined with the narrowing of systemic disparate treatment doctrine, means that plaintiffs’ attorneys must try to prove intentional discrimination even when there is no smoking gun in the form of an overtly malicious supervisor or single flawed practice.

Sexual Harassment Theory and the Birth of the Affi rmative Defense In the mid-1980s the Supreme Court recognized a new form of discrimination: sexual harassment. Nothing in the language of Title VII explicitly prohibits sexual harassment. In the early years of Title VII litigation, sexual harassment cases were brought as disparate treatment cases involving sex discrimination, but they were often dismissed, either because courts did not see sex discrimination as including sexual harassment or because courts were reluctant to hold employers liable for sexual harassment by individual supervisors or coworkers.114 Likely in response to feminist activism, some courts in the 1970s and 1980s began to hold that sexual harassment was a form of sex discrimination. In an influential 1979 book, legal scholar Catharine MacKinnon defi ned sexual harassment as “the unwanted imposition of sexual requirements in the context of a relationship of unequal power” and articulated two forms of sexual harassment.115 The fi rst, called quid pro quo harassment, involves a supervisor conditioning a tangible employment action upon sexual favors from the employee (for example, when a supervisor says, “We can negotiate that promotion if you meet me at the motel.”). The second, called hostile work environment harassment,116 involves workplace conduct that interferes with job performance, even if it has no tangible economic consequences (for example, repeated jokes or comments that are sexually derogatory or unwanted sexual advances). In 1980, for the fi rst time, the EEOC adopted guidelines dealing with

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sexual harassment, specifying that harassment on the basis of sex is a violation of Title VII, and—consistent with MacKinnon’s defi nition— that sexual harassment could involve unwelcome sexual advances or demands for sexual favors either as a condition of employment or in a way that creates a hostile environment.117 Lower courts generally began to hold employers vicariously liable for quid pro quo harassment but were divided on sexual harassment cases where there was not an explicit threat of an adverse job action conditioned on some sexual favor.118 Catharine MacKinnon’s work on sexual harassment119 would further influence legal doctrine when she served as one of Mechelle Vinson’s lawyers in the fi rst sexual harassment case to reach the US Supreme Court, Meritor Savings Bank v. Vinson.120 In that case, decided in 1986, the Supreme Court for the fi rst time recognized sexual harassment as a form of sex discrimination, specifying that “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”121 Citing the EEOC guidelines, the Court held that Title VII covers harassment that creates a hostile environment irrespective of whether there is a tangible economic loss.122 Although the Court in Meritor recognized sexual harassment as a form of sex discrimination, it also laid the foundation for employers to avoid liability by creating symbolic structures, in particular antiharassment policies and grievance procedures. Until 1986 no Supreme Court cases had explicitly stated that organizational structures might protect employers from liability in the context of a Title VII case. In most areas of civil rights law, that is still the case. But when the Supreme Court defi ned hostile work environment sexual harassment in Meritor, it, for the fi rst time, suggested that an effective antiharassment policy and a grievance procedure might protect an employer from liability when a supervisor harasses an employee. The legal landscape changed dramatically in 1998 when the Supreme Court decided two cases: Faragher v. City of Boca Raton123 and Burlington Industries, Inc. v. Ellerth,124 which created the affi rmative defense that the Meritor Court had hinted at. The Court held that employers were vicariously (or automatically) liable for harassment when a supervisor demands sexual favors in exchange for a tangible economic benefit.125 But in hostile work environment harassment, when an authority relationship between the employer and the harasser varies, the Court instead outlined two more demanding routes to liability. For coworker

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harassment, the plaintiff must affi rmatively prove that the employer was negligent, that is, that it “knew or should have known about the [harassing] conduct and failed to stop it.”126 The affi rmative defense will be discussed in greater detail in chapter 8, where I show how it exemplifies legal endogeneity. For now it is important to note that the US Supreme Court explicitly stated that in proving the elements of the defense, it would in most cases be sufficient for the employer to demonstrate that it had established a policy prohibiting harassment and a grievance procedure, which the employee had failed to use.127 Further, a development in 2013 made it easier for employers to avoid liability for hostile work environment harassment. Under Faragher and Ellerth, the employer could be held vicariously liable if the harasser had “day-to- day supervisory authority” over the victim and the employer failed to make out the affirmative defense. But in 2013, in Vance v. Ball State University,128 the Supreme Court narrowed the scope of who constitutes a supervisor, specifying that someone who has daily supervisory authority but does not have authority to take tangible employment actions against the victim is essentially a coworker rather than a supervisor, thus making the affi rmative defense available.129 In response to Vance, the Society for Human Resource Management (which fi led an amicus brief in favor of the employer in Vance),130 employment practices liability insurance companies,131 and EEO consulting fi rms are already recommending that employers concentrate authority in a few high-level supervisors so that sexual harassment by lower-level supervisors would be subject only to the negligence standard. The genesis of sexual harassment theory in the 1986 Meritor decision, then, appeared to broaden the meaning of equal employment opportunity substantially by recognizing a form of discrimination that had previously been unrecognized by many lower courts. Yet only twelve years later, in the Faragher and Ellerth decisions, the US Supreme Court made it substantially harder for employees to win sexual harassment cases by creating an affi rmative defense. I will argue in chapter 8 that the Faragher-Ellerth affi rmative defense is an example of legal endogeneity in that courts explicitly incorporated employers’ symbolic structures (grievance procedures and antiharassment policies) into their reasoning with respect to discrimination. In doing so, the Faragher and Ellerth cases presume that employers create effective and strictly enforced antiharassment policies and provide grievance procedures that are fair and accessible to employees without fear of retaliation. Yet as I show in sub-

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sequent chapters, employers often create policies and grievance procedures that are ineffective or inaccessible or involve fear of retaliation. And courts, for their part, often fail to distinguish between effective and ineffective organizational policies.

Civil Procedure and the Rise of Obstacles to Rights Mobilization The previous two sections have outlined the Supreme Court’s substantive weakening of two theories that had been helpful to employees in challenging discriminatory employment practices: disparate impact theory and sexual harassment theory. In this section, I turn to a series of procedural developments that have made it increasingly difficult for employees who experience civil rights violations to have their claims heard in court. These developments include the judicial endorsement of predispute mandatory arbitration agreements, changes in pleading standards that facilitate motions to dismiss, changes in summary judgment standards, and barriers to class action litigation. Increasing Judicial Approval of Mandatory Arbitration Clauses Mandatory arbitration clauses, which are increasingly common in employment contracts, personnel manuals, or even in application forms, generally require employees to pursue redress for perceived discrimination via arbitration rather than litigation. Sometimes these clauses also include class action waivers, which preclude employees from proceeding as a class as opposed to individually. Critics contend that mandatory arbitration clauses are deficient in due process protections, relegate workers to a second- class system of justice, and compromise employee rights in that arbitrators are not accountable to the public or to standards of public law.132 A 2011 study by labor relations scholar Alexander Colvin found that employee success rates in arbitration are lower than in litigation and that the median and mean awards to employees were lower in arbitration than in litigation.133 Further, legal scholar Judith Resnik suggests that although employees are frequently required to sign these clauses, very few employees ever take their complaints to mandatory arbitration, with the result that predispute mandatory arbitration in essence erases employees’ rights.134

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Yet courts are increasingly upholding these clauses, even though employees fare worse under them and have no option to opt out (other than to exit the workplace). Further, to the extent that employment discrimination litigation might have the potential to encourage nondiscriminatory norms by creating binding judicial precedent in the form of published opinion, arbitration fails to do that because it does not produce legal precedent. Prior to the 1980s, prevailing law did not permit employers to require employees to waive their statutory rights to a trial under Title VII. In a 1974 case, Alexander v. Gardner-Denver Co.,135 the Supreme Court held that an employee’s statutory right to a trial under Title VII was not waived when the employee proceeded to fi nal arbitration under the terms of a collective bargaining agreement that independently prohibited discrimination.136 Since the 1980s, however, many courts have relied on the Federal Arbitration Act (FAA)137 to uphold and enforce arbitration clauses in employment (as well as in other contexts). The key change for employment discrimination claims came in 1991, when the Supreme Court decided Gilmer v. Interstate/Johnson Lane Corp.138 In Gilmer, the Court held that a claim under the Age Discrimination in Employment Act could be subjected to compulsory arbitration, rejecting arguments that arbitration procedures might undermine the statutory rights due to arbitrator bias, limited discovery, lack of written precedent, or the lack of broad equitable relief and class actions. Cases since Gilmer have expanded employers’ ability to use mandatory arbitration, including in the Title VII context.139 Where state laws have offered protections against mandatory predispute arbitration agreements that compromise workers’ statutory rights, the Court has generally held that these laws were preempted by the FAA.140 In a further blow to employees, the Court has vigorously supported class action waivers in arbitration clauses—regardless of their effect on individuals’ ability to effectively vindicate their federal or state statutory rights.141 Lower courts had often held that arbitration clauses with a class action waiver were unconscionable (or too unjust to be enforced). But in AT&T Mobility v. Concepcion,142 decided in 2011, the Supreme Court held that the FAA preempted state unconscionability doctrine.143 Two years later, in American Express Co. v. Italian Colors Restaurant,144 the Court upheld a class action waiver in an arbitration clause and was dismissive of language from its early opinions indicating that arbitration must allow effective vindication of federal statutory rights.145

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There have been a number of congressional attempts to amend the FAA. On May 7, 2013, the Arbitration Fairness Act was introduced in the US Senate and House,146 but it never reached a vote, as was the case for substantially similar proposed legislation in 2011. On July 31, 2014, President Barack Obama signed Executive Order 13673, creating a right to litigation for Title VII, sexual assault, and harassment claims for employees of large federal contractors.147 The executive order, however, affects only a very small slice of the American workforce. With the exception of fi rms that enter into new federal contracts, private employers can continue to opt out of civil rights litigation, in essence replacing civil rights law with a dispute resolution system that favors managerial interests. These developments mean that many employees can only seek redress for civil rights violations in noncourt settings. For employees who do arbitrate, employers have greater control and significant advantages in arbitration relative to litigation. “Twiqbal” and Increasing Awards of Motions to Dismiss by Employers Even for employees who do have the option of litigation, the chances of having a “day in court” are slim. Since the EEOC has limited power to enforce the law and litigates only a small number of pattern or practice cases, more than 80 percent of employees who fi le a complaint with the EEOC receive a right-to-sue letter,148 which means that the EEOC authorizes the employee to fi le a lawsuit as an individual but will not fi le a lawsuit on the employee’s behalf. The litigation process itself formally begins when the employee, as plaintiff, fi les a complaint against the employer, as defendant, stating a claim for relief. The Federal Rules of Civil Procedure provide that a properly pleaded complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief”149 and that a defendant may object to the sufficiency of the claim by fi ling a motion to dismiss.150 If the court grants the motion to dismiss, the employer in essence wins without discovery or trial. A 1957 case, Conley v. Gibson,151 established the “notice pleading” standard, requiring that a complaint only provide “fair notice” of the plaintiff’s claims and that a court dismiss a case only if it is “beyond doubt” that the plaintiff could not prove any set of facts that would establish that the plaintiff was entitled to relief.152 In a 2007 case, Bell Atlantic Corp. v. Twombly,153 however, the Court introduced a more demand-

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ing “plausibility standard,” which requires the plaintiff to show that the claim is both legally viable and factually plausible.154 In making it easier for employers to win at the pleading stage, the Court emphasized the time and expense lost to meritless claims.155 Although Twombly was an antitrust case, in 2009 the Court made clear in Ashcroft v. Iqbal 156 that the new pleading standard applies to all types of civil claims.157 The Court also stated that in assessing plausibility, the Court should rely on its “judicial experience and common sense.”158 The combined Twombly and Iqbal decisions, often referred to as “Twiqbal,” make it far easier for employers to avoid trial by winning motions to dismiss. Empirical work generally suggests that dismissals of employment discrimination cases rose sharply after Twiqbal, and that it is likely that fewer lawsuits are fi led due to the greater likelihood of dismissal.159 Dismissal rates for Title VII claims rose from 42 percent pre-Twombly to 53 percent post-Iqbal.160 In race discrimination and racial harassment cases involving ambiguity,161 dismissals increased from 20.5 percent preTwombly to 54.6 percent post-Iqbal, and denials of motions to dismiss dropped from 75.6 percent to 37.7 percent.162 The plausibility standard, then, appears to have made it substantially less likely that EEO litigation will survive employers’ motions to dismiss, and may disproportionately have harmed plaintiffs alleging race discrimination or harassment.163 Increasing Awards of Summary Judgment to Employers If the case is not dismissed at the pleading stage, the employer has another chance to win without a full trial via summary judgment: through a decision based solely on statements made by the parties and evidence presented during the pretrial process. The Federal Rules of Civil Procedure allow either party to move for summary judgment if the only genuine issues in the case are legal rather than factual.164 In employment discrimination cases, almost all summary judgments involve a motion by the employer.165 The federal rule permitting summary judgment was adopted in 1938, and for many years courts were cautious about granting summary judgments, generally resolving any ambiguity in favor of the nonmoving party (almost always the employee).166 But in a trio of cases decided in 1986, known as the Celotex trilogy,167 the Supreme Court dramatically reshaped the use of summary judgment, embracing it as a device for expediting litigation and making it much easier for the moving party, almost always the employer, to win through summary judgment

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motions.168 In a major shift from previous law, the Court ruled in Celotex Corp. v. Catrett that the party moving for summary judgment need not offer evidence negating the claim that the party is challenging but can simply point to the absence of evidence offered by the other side.169 The Court in Celotex also offered a sweeping rhetorical endorsement of summary judgment at the end of its opinion: Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.”170

Empirical evidence suggests that Celotex had a dramatic impact on employers’ likelihood of obtaining summary judgment, especially in the circuit courts. Prior to Celotex, employers won on average 59 percent of summary judgment motions in the district courts and 58 percent in the circuit courts. After Celotex, employers won on average 62 percent of motions in the district courts and 81 percent in the circuit courts.171 The impact of Celotex is also clear in figure 3.2, which shows the proportion

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Figure 3.2. Percentage of summary judgment opinions and percentage of opinions defendant won via summary judgment over time (n = 1,188).

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of cases from 1973 to 2014 that involved employers’ motions for summary judgment, and the proportion of those motions that were successful, by year.172 It is important to note that judges tend to write opinions when granting summary judgment more than when denying summary judgment,173 which means that tallies based on written opinions will overrepresent the proportion of cases in which summary judgments were granted, although they accurately represent the proportion that constitute “law” for the purposes of precedent that influences future decisions.174 Only the written opinions are visible to judges, however, which leads them to believe that employees have weak cases in general.175 Further, grants of summary judgments appear to disproportionately disadvantage minority and female litigants.176 Barriers to Class Action Lawsuits Class actions were once an effective tool for seeking redress on behalf of a class of employees in both disparate impact and systemic disparate treatment cases. A number of changes in the standard for class action lawsuits in the federal courts, however, make this strategy an increasingly difficult one for plaintiffs’ lawyers in EEO cases. Before a class action lawsuit can move forward, the class must be certified by a court under Rule 23 of the Federal Rules of Civil Procedure. The certification phase is increasingly the stage at which the real battle takes place, often centering on whether the class members share a sufficiently common injury and are adequately represented by the relative few people named as plaintiffs.177 In the early years of civil rights litigation, a majority of appellate courts adopted the Fifth Circuit’s 1969 “across the board” rule, which, in essence, allowed a single employee to represent all members of his or her racial, gender, or other group, including past and future employees.178 But the tide soon began to turn as the courts put in place a series of obstacles to class action litigation. Some circuits placed limitations on the across-the-board rule based on geographical and other factors.179 In General Telephone Co. v. Falcon,180 decided in 1982, the Supreme Court rejected the across-the-board standard, holding that the representative must have the same interests and have suffered the same injury as the rest of the class,181 although it did note that a broader class might be per-

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missible when the employer operated under a general policy of discrimination.182 After Falcon, relatively minor variations in how employees were affected could make it difficult to certify a class. Further, across all types of cases, courts increasingly began to delve into the merits of the plaintiffs’ claims before certifying a class, effectively requiring the plaintiffs to substantiate their claims long before trial.183 The issue of combining the class certification and merits issues was central in the Wal-Mart Stores, Inc. v. Dukes184 litigation. In Wal-Mart, the plaintiffs’ attorneys sought to certify one of the most expansive class actions ever. Betty Dukes and six other plaintiffs sought to represent approximately 1.5 million women who were current and former Walmart employees across thirty-four hundred stores throughout the United States.185 Years of litigation took place over the issue of whether the women shared a sufficiently common injury to be certified as a class. The plaintiffs’ attorneys produced statistical evidence of gender-based disparities in pay and promotion and argued that Walmart endorsed a companywide culture of subjective decision making, which (together with a culture of sexism) resulted in the observed disparities. They pointed out, for example, that Walmart put women at a disadvantage in the following ways: by allowing managers to select employees for the company’s management training program based on subjective criteria and with little guidance; by failing to post openings in its management training program but instead using an informal “tap on the shoulder” selection system; by requiring managers to certify that they would be willing to relocate;186 by failing to monitor promotion and salary decisions; and by failing to hold managers accountable for gender disparities in pay.187 The district court certified the class in 2004, and the Ninth Circuit upheld that order in most respects in 2007 and again after hearing the case en banc in 2010. The Supreme Court, however, reversed it in 2011. In seeking to establish proof, the plaintiffs demonstrated statistical disparities in pay and promotion and argued that the cause of these disparities was Walmart’s practice of encouraging discretion by its store managers together with a culture of gender stereotyping that placed women at a disadvantage. The Supreme Court declined to certify the class because it was ultimately unconvinced that the discretionary practices of thousands of local managers constituted a companywide policy of discriminatory decision making, in part because of the presence of a formal policy prohibiting discrimination. Although the long-term impact of

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Wal-Mart is not yet clear,188 many experts in employment discrimination law consider it a major blow to plaintiffs in civil rights litigation in particular and to class actions in general.189 How Obstacles to Mobilization Weaken the Potential of Civil Rights Law Equal employment opportunity law is premised on the idea that aggrieved employees will mobilize their legal rights by fi ling a claim with the EEOC and, if necessary, fi ling a lawsuit in federal court. Yet the procedural barriers to mobilization discussed in this section all make it more difficult for employees to mobilize their legal rights. If employees tended to overmobilize by fi ling frivolous discrimination lawsuits, then at least some of these barriers might be justified. But the social science evidence on mobilization suggests precisely the opposite. A large sociolegal literature on rights mobilization shows that only a small fraction of employees with discrimination complaints actually mobilize their legal rights. Due to myriad structural and psychological barriers to mobilization, most employees who perceive that their rights have been violated simply tolerate the discrimination. Some choose to view themselves as survivors rather than as victims.190 Some talk to friends or family, or engage in prayer, or seek help from clergy. A small percentage use quasi-legal mechanisms such as an ombudsperson or internal grievance procedure.191 Of the relatively small percentage of people who attempt litigation, most settle or give up before trial. Thus, again, there is a mismatch between law and social science.192 Obstacles to mobilization in the form of predispute mandatory arbitration clauses, the Twiqbal plausibility standard that makes it harder for employees to prevail in motions to dismiss, the Celotex summary judgment standard that makes it easier for employers to win without trial, and the greater difficulty of establishing commonality to certify class action lawsuits make it far more difficult for minorities and women to challenge discriminatory employment practices.

Why the Conservative Turn in Civil Rights Jurisprudence? There are multiple reasons for the conservative trend in civil rights jurisprudence. One is simply that courts in general, including the Supreme

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Court, have been moving in a conservative direction since the mid1960s.193 Another significant reason is that ambiguity in civil rights legislation created the conditions that would lead to a pro- employer bias in the law. Once the debate over the meaning of civil rights law and the requirements for proving discrimination moved into the courts, employers had a distinct advantage not only in individual cases but also in their capacity to influence the direction of civil rights jurisprudence overall. One advantage employers have is their status as “repeat players” in the legal system with greater stakes in the long-term direction of the law;194 they also have much greater resources and access to more elite lawyers, who tend to be more specialized and have lower caseloads.195 As Marc Galanter illustrated in “Why the ‘Haves’ Come Out Ahead,” repeat players can maximize their odds over the long run by selecting which cases to litigate and which to settle, and by playing for rule changes that favor them in future litigation.196 And because the stakes are higher for employers, they invest more resources in litigation, making them more likely to win.197 The ability to use a long-term strategy allows employers to influence both the procedural rules that control whether employees have access to the courts and the substantive rules regarding what constitutes discrimination and the burdens of proof. Employers tend to settle cases that would produce unfavorable precedent and litigate those that produce favorable precedent so that the cases that come before judges tend to be those in which employers have a stronger case. Catherine Albiston showed, in the context of early litigation under the 1993 Family and Medical Leave Act, that employers were able to settle cases that could result in precedent that would hurt them and litigate (and win) cases that offered them the opportunity to move the law in a favorable direction, slowly but systematically weakening the reform capacity of the law.198 She found that although only about 20 percent of all cases result in published opinions,199 the vast majority of those opinions, which are relied on in future cases, favor employers.

Conservative Trends and the Potential for Legal Endogeneity In addition to making it harder for plaintiffs to prevail in court, the trends I have discussed in this chapter help to set the stage for law to become endogenous. The trend toward recognizing only intentional dis-

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crimination, in effect, renders judges blind to the more subtle forms of discrimination that characterize today’s workplace. Judges are left looking for the racist employer of the Jim Crow era or the overtly sexist supervisor who announces that he will never hire a woman. In the absence of such clear indicia of intent to discriminate, judges tend to interpret symbolic structures as evidence of nondiscrimination. Against this background, law invites organizations to create symbolic structures and judges to equate those structures with civil rights compliance, even when those structures fail to advance civil rights ideals. The trends in civil procedure make it harder for plaintiffs to reach trial and encourage judges (who are skeptical of employees’ claims) to view organizations’ symbolic structures as indicia of legality. Because the accepted purpose of motions to dismiss and summary judgments is to weed out weak or frivolous cases, judges are likely to interpret the fact that employers disproportionately win the remaining cases as an indication that most civil rights claims are without merit. 200 The bias in published opinions stems not only from the fact that employers usually win but also from the judicial practice of writing detailed decisions when granting summary judgment (or judgment as a matter of law) but not writing any decision when denying summary judgment. This bias, in turn, reinforces several known judicial heuristics intended to help judges quickly dispose of civil rights cases. 201 These heuristics include the “stray remarks” doctrine, under which judges view evidence of sexist or racist comments as stray remarks rather than as indicative of a supervisor’s discriminatory motivations; 202 the “honest beliefs” doctrine, under which judges tend to view employer’s accounts of events as genuine beliefs on the part of the employer, even if they are shown to be incorrect;203 and the “same actor inference,” under which judges assume that when an employer acts in a way that benefits an employee and later takes an adverse action against the same employee (e.g., the employer fi rst hires an employee but later fi res the same employee), the motivation for the adverse action must be nondiscriminatory. 204 All these heuristics make it more likely that judges will interpret symbolic structures as indicia of nondiscrimination by inducing them to overlook evidence of discrimination. The 1998 US Supreme Court decisions in Faragher and Ellerth, which specified that organizational antiharassment policies and grievance procedures could immunize employers from Title VII liability, are, as I noted earlier, the product of legal endogeneity. But those decisions, in

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turn, probably made judges more open to associating symbolic structures with EEO compliance outside of the sexual harassment context. It is noteworthy that sexual harassment doctrine (which is generally applicable to racial harassment cases) is the only area in which the Supreme Court has explicitly endorsed organizations’ symbolic structures, and that did not happen explicitly until 1998. For the fi rst thirty-four years after the passage of the 1964 Civil Rights Act, nothing in EEO statutes or Supreme Court jurisprudence specified that organizations could escape legal liability for employment discrimination by putting symbolic structures in place. And yet, as I show in the remainder of this book, employers and legal actors alike came to assume that symbolic structures constitute compliance with civil rights law.

CHAPTER FOUR

Professional Framing of the Legal Environment

A

striking feature of legal orders is that there is no systematic mechanism through which information about law is disseminated to citizens or organizations. Statutes and important judicial decisions are generally accessible only to those with the time and skills to fi nd them. How organizations and managers within organizations respond to law, therefore, depends largely on how they become aware of their legal environments and how legal environments are framed. Legal environments can be framed, for example, as threatening or nonthreatening, as important or unimportant, and as a resource or as a constraint. I argue in this chapter that compliance professionals—including HR managers, management consultants, lawyers (both in-house and those who have contractual relationships with organizations), and even insurance agents—are not simply conduits to but also are architects of the legal environment. Compliance professionals frame the legal environment, influencing how it is seen by organizations and other organizational actors. Based on two case studies, one from the early years of civil rights enforcement and one contemporary, I show that in the civil rights context, compliance professionals have advanced a particular frame, which I call the risk framing of the legal environment.1

Compliance Professionals? Compliance professionals have varying roles. Some work within the organizational hierarchy and are paid as employees of organizations.

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Others are hired as outside consultants and sell their services or products to organizations. Some are generalists whereas others specialize in a particular aspect of the legal environment. In general, larger organizations have more compliance professionals, who tend to be more specialized, and they also hire more outside consultants. Smaller organizations may have employees who are generalists and handle compliance matters as only one part of their work responsibilities. Below I outline the primary types of compliance professionals who are involved with the framing of EEO law. Human Resource Professionals Human resource professionals within organizations play a central role in making the legal environment salient to organizations and various organizational actors and procedures. HR professionals have multiple—and increasingly important—responsibilities within organizations, including hiring, devising personnel policies, ensuring compliance with all laws relevant to employee management, handling internal complaints, responding to complaints fi led with federal or state agencies, and, more recently, participating in strategic planning. HR professionals also include affi rmative action officers, diversity officers, inclusion officers, equity officers, ombudspersons, and others charged with handling law-related problems or disputes generally. The profession emerged toward the end of the nineteenth century, when “welfare secretaries” were entrusted with protecting women and girls in industrial enterprises. With the increasing numbers of women entering the workforce during the First World War, women were increasingly hired as labor (or employment) managers to handle absenteeism, recruitment, and dismissals. By the mid-1940s welfare work and employment management were integrated under the term personnel management, which by the 1980s came to be called human resource management. 2 Today, HR professionals are generally trained in business schools, in industrial relations certificate programs, or in the growing number of specialty programs in human resource management at the bachelor’s, master’s, or doctoral level. 3 The Society for Human Resource Management (SHRM), founded in 1948 as the American Society for Personnel Administration, is now an international organization with more than 275,000 members in more than 575 chapters. It provides numerous resources through its website4

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and various programs, including information about employment law and legal issues, guides for many HR tasks including management of legal issues, templates for policies and handbooks, summaries of research, conferences, listservs, newsletters and other publications, social media connections, software packages, discussion groups, and access to experts. In addition to SHRM, numerous other listservs and electronic communities for HR professionals focus on particular areas of law related to HR such as disabilities, affi rmative action, benefits, dispute resolution or alternative dispute resolution, labor, healthcare, and privacy. These networks provide fi ltered accounts of the laws that are relevant to organizations, rationales for or characterizations of those laws, accounts of the risks of noncompliance, and best practices for responding to those laws. The National Academy of Human Resources, an honorary society founded in 1992, provides a venue for established leaders in the field to influence the norms of the entire profession. The academy publishes best practice cases designed for HR educators at colleges and universities. The Legal Profession If HR professionals are the front-line workers who handle day-to- day problems and oversee personnel policy, lawyers are the teachers, trainers, and experts who provide HR professionals with information about law and compliance. Especially in larger organizations, in-house counsel tend to oversee personnel policies and to monitor compliance along with HR professionals. In-house counsel may also coordinate with lawyers in private fi rms, who provide advice to organizations on personnel policies and, more generally, on situations that pose legal risks to organizations. Lawyers also hold workshops and webinars, many of which are sponsored by management- oriented law firms or management consulting fi rms, write articles intended for HR professionals, and serve as consultants to the HR community. Thus, lawyers frame the legal environment for HR professionals, who, in turn, frame the legal environment for administrators, employers, and employees. The academic branch of the legal profession, which includes law professors and other legal scholars, provides a knowledge base for the profession and lends it legitimacy as a whole. 5 Academics frame the law when they write commentary on judicial decisions and on what they see as developing legal trends. Law reviews are the primary forum for academic legal commentary, although legal academics also write treatises,

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or hornbooks. Practicing lawyers frame law in their daily activities; for example, when they give employers (and other clients) advice; when they decide what legal actions to take; when they write briefs and argue before courts; and, importantly, when they write books or articles or offer workshops, websites, and webinars aimed at HR professionals. As HR becomes more legalized, educational forums conducted by lawyers have become prevalent, as have reference works written by lawyers designed to explain the law to HR managers. Prominent lawyers and law fi rms on both the management and employee sides also offer continuing legal education (CLE) programs, usually accompanied by written materials aimed at instructing other lawyers in employment law.6 Because attorneys are required to complete CLE credit on a regular basis, these programs provide a primary mechanism for the dissemination of ideas about the legal environment and methods of compliance. As I discuss in the case studies below, academic lawyers are somewhat less likely than practicing lawyers to engage in the risk framing of the legal environment. Management Consultants Management consultants and consulting fi rms offer legal and other HR support to employers and to HR professionals and play an important role in synthesizing and diffusing information among compliance professionals. Examples of management consultants in the EEO arena include Business & Legal Resources (BLR), Biddle Consulting Group, EEOC Consultants Inc., HR Hero, Criticality Management Consulting, and EEO Legal Solutions, and there are many more. These fi rms and many like them employ management- oriented legal professionals and offer a wide array of services focused on avoiding EEO lawsuits. Many offer webinars, informative websites, and newsletters in addition to private consulting. Some are focused on EEO only, whereas others focus on all aspects of human resource management. For example, BLR offers online products and services, including HR.BLR.com, Compensation.BLR.com, Safety.BLR.com, Enviro.BLR.com, HRlaws.com, an online training system called TrainingToday.BLR.com, and the Advanced Employment Issues Symposium. BLR also provides compliance portals for HR (a subscription-based service that provides white papers and summaries of the law, checklists to help with compliance, FAQs on specific compliance issues, forums, and newsletters); web-based training platforms with

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modules for employers to train their staff in legal requirements; statefocused compliance manuals; and other products that are designed to help employers stay current on a wide variety of employment practices. BLR, which counts several lawyers with experience in management-side employment practice among its editors, develops many of its products and events in conjunction with the Employers Counsel Network, an affi liation of fi fty law fi rms, one in each state, representing management in employment law matters.7 Employment Practices Liability Insurance Companies Insurance companies are relative newcomers to the world of compliance professionals. Although insurance companies previously offered general forms of liability insurance to organizations, the 1990s saw the rise of employment practices liability insurance (EPLI), which indemnifies insured employers against employment discrimination and wrongful termination claims.8 EPLI was fi rst offered as a stand-alone policy in 1992,9 and the number of insurers providing such coverage has increased substantially since then.10 EPLI providers offer workshops and loss prevention guides that urge employers to shift the risk of liability onto insurance providers. Networks and Networking Networks of compliance professionals help to create widespread agreement about the legal environment and, more specifically, about the threats posed by various laws, the opportunities posed by procedural mechanisms, and the meanings of legal constructs. A wide variety of professional journals, websites,11 memo services,12 listservs, software,13 workshops, and consultants provide accounts that shape how law is understood and whether law is seen as relevant to organizations. Some listservs focus on particular areas of law related to HR such as disabilities, affi rmative action, benefits, dispute resolution or alternative dispute resolution, labor, healthcare, and privacy. Professional HR journals often include articles written by legal professionals that are aimed primarily at HR professionals. Through these networks, compliance professionals come to share common ideas about the extent to which the legal environment is friendly or threatening to organizations. As I discuss in chapter 5, these networks also shape the evolution of HR “best practices,” or

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practices that come to be commonly accepted among compliance professionals regarding how organizations should comply with the law.

Compliance Professionals as Architects of the Legal Environment Just as architects can influence how people see a building and the features of the surrounding environment, compliance professionals shape the aesthetic of law in the sense of whether it is perceived as pleasing and consistent with good managerial policy or distasteful and intrusive. Compliance professionals make certain laws or norms visible or invisible to employers and frame those laws’ relevance to organizational life. Through their role in framing the character and demands of the legal environment, compliance professionals shape whether and how organizations respond to law. Compliance professionals mobilize the ambiguity and complexity of EEO law to frame the legal environment as a landscape replete with risk and accessible only through the expertise of professionals. The language of risk is ubiquitous, with characterizations of law as hostile, volatile, uncertain, vague, complex, constantly changing, and highly variable across jurisdictions. Although systematic studies of EEO cases show that employers prevail in the vast majority of cases,14 compliance professionals characterize the legal landscape as favorable to employees and highlight the few high-profi le multimillion- dollar class action settlements involving discrimination and harassment, such as the $170 million settlement agreed to in a 1996 case against Texaco.15 The central message is that the legal environment is treacherous and that no employer should seek to negotiate it without professional expertise. It is in this sense that compliance professionals engage in the risk framing of the legal environment. The risk framing of the legal environment is a catalyst for legal endogeneity in that it motivates organizations to respond to law initially. In part because of the growing compliance industry that markets its services, the risk framing continues well after employers come to see the legal environment as a threat. To illustrate this framing at both early and later stages of the legal endogeneity cycle, I discuss two empirical examples. The fi rst is a study of compliance professionals’ response to wrongful termination doctrine during the 1980s, as it was fi rst framed as a threat to employers. The second example shows the risk framing of the

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legal environment since about 2008, as EEO consultants highlight the increasing risk posed by antidiscrimination law.

The Inflated Threat of Wrongful Termination An early example of compliance professionals as architects of the legal environment may be found in how the HR and legal professions framed the evolution of wrongful termination cases in the 1980s. I draw on a study that I conducted with Steven Abraham and Howard Erlanger,16 which involved a content analysis of articles on wrongful termination in law and human resource journals from 1980 through 1989. We compared the portrayals of risk in those articles to the actual risk based on an analysis of court cases involving claims for wrongful termination in six US states during the same time period. Wrongful Termination Doctrine Wrongful termination is a form of civil rights action that is grounded in the legal principle of due process. Most employment relationships in the United States have been governed by a common law doctrine known as employment at will.17 This doctrine holds that absent a contract, either party to an employment relation may terminate it for any reason or without reason. American courts adopted the employment-at-will doctrine beginning in the late nineteenth century.18 Employment at will was recognized by the US Supreme Court in a 1908 case, Adair v. United States: In the absence  .  .  . of a valid contract between the parties controlling their conduct towards each other and fi xing a period of service, it cannot be  .  .  . that an employer is under any legal obligation, against his will, to retain an employé in his personal service, any more than an employé can be compelled, against his will, to remain in the personal service of another. The [employé] was at liberty to quit the service without assigning any reason for his leaving. And the [employer] was at liberty, in his discretion, to discharge the [employé] from service without giving any reason for so doing.19

State courts began to recognize common law exceptions to the employment-at-will doctrine as early as 1959, under the rubric of wrong-

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ful discharge or wrongful termination. That year California adopted the fi rst of three such exceptions to the at-will doctrine: violation of public policy, 20 which allows an employee to sue when the employer discharges the employee for refusing to violate law, for exercising a legal right, or for taking other actions that are in the public interest (e.g., warning the public about safety hazards). In 1974 a New Hampshire court recognized a second exception: violation of the implied covenant of good faith and fair dealing, 21 which precludes bad faith discharges (e.g., an employer fi res an employee to avoid having to pay benefits that the employee has earned). These fi rst two exceptions attracted little attention, but compliance professionals sounded the alarm about the third exception, violation of implied contract, which was fi rst recognized by a Michigan court in 1980. Essentially a civil right to fair treatment, the implied contract exception allows employees to sue when a contract requiring good cause for termination can be inferred from company practices or policies. In the Michigan case, Blue Cross & Blue Shield was sued on the basis of a statement in its personnel manual, which said that the company’s policy was to release employees only for just cause. 22 The next year, California adopted an even broader version of the implied contract exception because an implied contract was inferred in part from the employee’s long employment with consistently positive evaluations. 23 By 1986, twentyfour states had adopted the implied contract exception and by 2013, thirty-seven states and the District of Columbia had done so. 24 Professional Framing of the Threat After the creation of the implied contract exception in 1980, there was a burst of attention in the professional HR journals to the threat of lawsuits for wrongful termination generally. Most articles, though not all, focused on the implied contract exception. 25 Articles in HR journals emphasized a rapidly growing threat of wrongful termination doctrine generally, and of violations of the implied contract theory of wrongful termination in particular. These articles framed the threat as a litigation explosion in which employees and their lawyers were suing for violation of implied contract in record numbers and courts were biased in favor of employees. The threat was conveyed with language about excessive litigiousness among employees, examples of exceptional cases with very large jury awards, warnings about jury bias, misleading statistics, and

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warnings that almost any language in personnel manuals might be construed as creating an implied contract. Ominous titles helped to frame the legal environment as replete with risk. For example, a 1985 article in Personnel Administrator, entitled “Wrongful Discharge: The Tip of the Iceberg?” and written by lawyers, made this claim: [W]rongful discharge lawsuits are proliferating across the country against employers. It is an era that will be marked by growing challenges to the traditional concept of employment at will, posed by the wrongful discharge assault. 26

An article in the Harvard Business Review the same year, entitled “How to Safeguard Your Right to Fire,” suggested that companies were unprepared for the aggressive actions of courts: Acceptance of the employment-at-will doctrine . . . has declined so fast in the last few years that many companies have been caught unprepared. . . . When imposing a standard, a court will often review all company-related literature to discover any phrase, clause, or sentence on which a legally enforceable contract can be constructed. 27

As exemplified in this 1988 article in Personnel, many writers warned that juries were sympathetic to plaintiffs: The verdict is in for employers engaged in wrongful termination lawsuits fi led by former employees. In most cases, jury panels side with employees and shift the burden to employers, despite judicial instructions to the contrary and strong evidence that the former worker was terminated for good cause. 28

Although statistics were plentiful, they were often inaccurate, and a surprising number of the articles offered no authority at all for the statistics that were provided. For example, a 1984 article in Personnel Journal offered the following—inaccurate—statistics without providing any source: [T]he employer success rate is approximately 9%. That means that employees are winning 91% of the time, at least in California, and with an average jury award of $400,000. 29

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Articles inflated the threat of wrongful termination in part by discussing or using statistics based on California cases without informing readers that California courts were much more receptive to wrongful termination cases than most other states. Articles that did offer an authority almost always cited, and frequently mischaracterized, the fi ndings of one particular study. The study was published by the RAND Institute for Civil Justice in 1988 and was based on an analysis only of California cases that reached a jury verdict. 30 The RAND study, which was based on all three exceptions to the at-will doctrine, reported that about 68 percent of California plaintiffs won their wrongful discharge lawsuits and that the mean initial award was $650,000. The report clearly stated that that figure was skewed by a few multimillion- dollar judgments and that the median jury award was $177,000. It further reported that about 40 percent of these awards were for punitive damages (which are not available in implied contract cases but are sometimes available under the other two at-will exceptions). The RAND study also pointed out that initial verdicts were usually reduced significantly during posttrial settlements and appeals. Finally, the RAND report concluded that if one took into account posttrial reductions, the annual cost of jury trials amounts to only $2.56 per worker. Yet articles that cited the RAND study (and many that did not) frequently claimed that employees almost always win, that multimilliondollar verdicts were not uncommon, and the average jury verdict was over a half-million dollars. These figures mischaracterized the RAND study and substantially overstated the actual risk posed by wrongful termination litigation at that time. 31 More Accurate Statistics Table 4.1 shows our own analysis of cases brought under the implied contract exception from 1980 to 1989 for six states. 32 California and Michigan were highly receptive to the implied contract exception; New York and Pennsylvania were less receptive, and Missouri and Delaware both rejected it. 33 In the two unreceptive states, Missouri and Delaware, employers almost always won on the merits. 34 In the two somewhat receptive states, New York and Pennsylvania, employers won on the merits in more than 70 percent of the cases. Even in the two highly receptive states, California and Michigan, employers still won on the merits in well

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Table 4.1. Percentage of published implied contract cases won by employer and employee, 1980–1989

Receptivity to implied contract theory

Employer wins on the merits

Employer’s motion to dismiss is denied

Employee wins on the merits

%

n

%

n

California

61.7

37

23.3

14

15.0

Michigan

69.5

41

15.3

9

15.3

%

n

Total cases %

N

9

100

60

9

100

59 a

Very receptive

Somewhat receptive New York

81.4

35

14.0

6

4.6

2

100

43

Pennsylvania

71.4

40

23.2

13

5.4

3

100

56

Missouri

89.5

17

5.3

1

5.3

1b

100

19

Delaware

100.0

2

0.0

0

0.0

0

100

2

Nonreceptive

Source: Edelman, Abraham, and Erlanger, “Professional Construction of Law,” 58, table 1. Note: Percentages do not always add up to 100 due to rounding. a There were fi fty-nine cases but only fi fty- eight decisions—the Toussaint decision involved two separate cases, but because they had very similar facts, the court considered them together. b This case was decided before the Missouri Supreme Court’s 1988 decision in Johnson v. McDonnell Douglas, 745 S.W.2d 661 (Mo. 1988), which held that the implied contract cause of action was unavailable.

over half the cases, and employees prevailed on the merits in only 15 percent of the cases. Further, in the relatively few cases in which employees prevailed, the awards that they received were much lower than the figures reported in most of the articles. Table 4.2 shows the range, median, and mean of awards to plaintiffs in all types of wrongful termination cases and in implied contract cases from 1980 to 1989. All but column 7 are based only on cases in which employees actually won damages. 35 For California, one of the two states most receptive to wrongful termination lawsuits, we found a median award of $93,750 and a mean award of $188,278. These figures are markedly less than those reported by the RAND study ($177,000 and $650,000, respectively). The reason for the difference is likely that the RAND study was based on all three exceptions to the atwill doctrine and only on cases that reached a jury. Yet the articles we reviewed frequently cited the RAND figures as applicable to the risk posed by the implied contract exception generally. Column 7 of table 4.2,

9

Michigan

10,000– 740,000

22,858– 700,000

2

Pennsylvania

0

Delaware

 

—

22,500

50,000– 200,000

94,689– 304,000

—

22,500

140,000

199,345

110,000

237,000

Median ($) (3)

 

—

7,500

10,000– 200,000

94,689– 304,000

10,000– 560,000

22,858– 600,000

Range ($) (4)

Contract claims

—

7,500

127,000

199,345

100,000

93,750

Median ($) (5)

—

7,500

127,083

199,345

168,072

188,278

Mean ($) (6)

 

 

—

395

6,808

9,272

25,000

28,720

Mean award, contract claims (including cases won by employers) ($) (7)

Source: Edelman, Abraham, and Erlanger, “Professional Construction of Law,” 59, table 2. Note: Col. (4): In several Michigan and California cases, awards were made for combined claims (e.g., Age Discrimination Employment Act violations and breach of implied contract). When the published opinion did not state how much of the award was for each claim, we divided the award evenly among the various claims. This technique is likely to produce high estimates for breach of implied contract awards, since awards for violations of civil rights statutes tend to be greater than awards for breach of implied contracts. Col. (7): The mean jury award for each state for all published cases involving implied contract claims was averaged over the total number of such cases for that state. a One case involved three employees, each of whom received an award under the ADEA and the implied contract theory. The amount awarded to each employee was different under both theories. Since the unit of analysis is the case rather than the employee, I use the mean award for that case as the value of the award. b One case involved nine employees, each of whom received a different amount. Since the unit of analysis is the case rather than the employee, I use the mean award for that case as the value of the award.

1

Missouri

Not receptive to implied contract theory

2b

New York

Somewhat receptive to implied contract theory

9a

California

Range ($) (2)

All claims

Very receptive to implied contract theory

No. of cases with awards (1)

Awards (excluding cases won by employers)

Table 4.2. Size of awards in wrongful termination cases, 1980–1989

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89

which shows the average jury award for all implied contract cases, provides the most realistic estimates of the fi nancial risks employers faced from the implied contract theory. It shows that the overall threat to employers was actually quite small, especially in states that were not highly receptive to implied contract theory, and even these figures overstate the threat to employers because they do not account for posttrial reductions based on appeals or settlements. There were quite a few instances in which an appeals court remanded the case to the jury to reduce the damage award. 36 Thus, our study found a much lower success rate for employees than what is reported in the RAND study. Our study showed that in contrast to the inflated claims of impending doom found in many of the articles we examined, employers were, in fact, winning the vast majority of such cases even in the states that were most sympathetic to employees. Variation in Framing across Professions and Audiences There were some differences across professions in how the threat of litigation was framed. Figure 4.1 shows the results of a content analysis of articles in law reviews (aimed at academics), law practice journals (aimed at practicing lawyers), and HR journals (aimed at HR professionals). We also considered the profession of the lead author of the article. In general, HR professionals emphasized the threat most, followed by practicing lawyers, and then legal academics. All compliance professionals, however, were more likely to frame the legal environment as threatening when they were writing for an audience of HR professionals. 37 In sum, our study of wrongful termination in the 1980s illustrates how compliance professionals engaged in a risk framing of the legal environment, often inflating the threat of litigation and the size of awards to draw organizational attention to a new law.

The Risk Framing of the EEO Environment The second example comes from an analysis of how compliance professionals framed civil rights law from 2008 through 2014. I conducted content analyses of documents available on the websites of Business & Legal Resources (BLR), 38 a management consultant fi rm that offers advice on EEO law for compliance professionals, and of SHRM. Most of

CHAPTER FOUR

90

Predicted probability (%)

100

80

60

40

20

0

Academic

Lawyer

Law review Human resources journal

HR manager

Law practice journal

Figure 4.1. Predicted probability of portraying wrongful termination threat as high by profession and type of journal (n = 87). Source: Based on Edelman, Abraham, and Erlanger, “Professional Construction of Law,” 73, table 5.

these documents are aimed at HR professionals. First, from June 2008 through July 2009, I collected and coded the HR Daily Advisor, a free daily memo service offered by BLR. Each daily memo is written by a BLR editor who frequently provides advice from others with expertise in the fields of human resource management and law. The coding scheme includes variables that reflect references to types of laws, HR functions, characterizations of the legal environment (as risky, complex, ambiguous, etc.), values such as fairness or efficiency, various types of problems that were discussed, and various products and services for sale. 39 I also read the daily e-mails from 2009 through 2014. Second, I viewed six webinars offered by BLR on various employment discrimination topics (discussed below). Third, I downloaded and reviewed numerous reports and articles provided by BLR, including twenty-four compliance checklists, twenty-seven “Ask the Expert” question-and-answer articles on various legal topics, three lists of legal interview questions, twenty-six legal summaries, 297 news summaries on various civil rights law issues, and 122 white papers on legal issues pertaining to civil rights.40 I used

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Python, a general-purpose programming language, to conduct a basic text analysis that found words associated with law, risk, fairness, and discrimination in each type of document. Fourth, I joined the SHRM and read numerous documents intended for HR professionals on the SHRM website, including materials available only to paid members. Content Analysis of the HR Daily Advisor: A Terrain of Risk and a Province for Experts As with the case of wrongful termination in the 1980s, the most prevalent characterization of the legal environment in the twenty-fi rst century is one of risk. The threat of litigation is omnipresent in documents intended for HR professionals, with frequent references to “legal land mines” and “forbidden questions.” Legal risk was mentioned 199 times in the HR Daily Advisor memos, whereas fairness came up only 25 times. Multiple interrelated types of risk were mentioned, including litigationhappy plaintiffs’ lawyers and employees, frivolous lawsuits, the dangers posed by lawyers, legal complexity, legal ambiguity, state variation in law, mistakes by supervisors, economic risk, the need to be constantly mindful of legal change, improper documentation, and failure to train employees properly. As illustrated by the examples below, virtually every daily memo invoked the threat of litigation and the ease with which employers can fi nd themselves in legal peril. The memos frequently emphasized the risk of large jury verdicts and personal liability for supervisors. There’s bad news on the gender discrimination front for employers: when cases go before a jury, judgments have skyrocketed. For example, in 1991 the average harassment award was $141,000. Now, it’s more like $1 million. What’s more, some states, such as California, are imposing personal liability on those who know of harassment and take no action to stop it. In a recent case, the fi rm involved was hit with a harassment judgment of $1.7 million. But two supervisors were each ordered to put $50,000 of their own money toward that total. (Gender Discrimination Lawsuits: Essentials to Avoid Them, June 25, 2008)

As illustrated by the following example, compliance professionals continue to emphasize the risk of wrongful termination lawsuits:

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If your organization has an employee handbook, uses employment agreements or offer letters, or has somehow promulgated, in written or oral statements, language that appears to assure employees that their employment is for a certain period or will not be ended without a disciplinary process, your termination decision may be subject to challenge for not adhering to this “contract.” For example, Taco Bell was required to show good cause for terminating an employee who had signed employment documents with at-will disclaimers. A jury found that language in relocation agreements modified the employee’s at-will status and implied that termination could occur only for good cause. The penalty? $800,000—Ouch! (We’re At Will—Why the Fuss Over Documentation, October 14, 2008)

The myriad laws and changes in law were also a common theme: Unfortunately, we’ve just seen major changes to FMLA, ADA, military leave, and accommodation rules—the list of new policy requirements seems endless. But you can’t back-burner work on your policies—they’re your only hope for consistent management that avoids lawsuits. (We’re Sued—What to Do, How to Avoid It, February 23, 2009)

Some memos suggested that careful review of HR practices carries its own risks: Regular examination of HR practices is critical to ensure compliance and to minimize exposure to very expensive lawsuits. But it’s risky business. Collecting data about your workplace is an important part of HR management. . . . But there is a potentially big pitfall. The results of these audits often show negative information. For example, results might show that your diversity program, affi rmative action program, or safety program has produced substandard results. Or a climate survey might show that most employees think that management is discriminatory toward members of a protected group. Unfortunately, these negative results are often discoverable in court by an employee in a discrimination or other employment lawsuit. Whoops! The organization itself has created the evidence that will be used against it in court. (Self-Audits—Dangerous Documents of Self- Incrimination?, March 4, 2009; emphasis in the original)

There were numerous instances in which products or services were offered to help compliance professionals understand or minimize risk.41

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The theme in many of these memos was that the legal environment is too dangerous to navigate without expert advice. Many ads featured templates or prewritten policies that had been vetted to reduce risk. The following are representative examples: Important laws are changing left and right, and increasingly disgruntled employees mean an increasing number of lawsuits. Steer clear of these issues with the practical, plain-English advice you’ll get at BLR’s National Employment Law Update conference. (advertisement that ran in many of the daily memos) [I]t’s no light task to write and update the dozens of policies that any organization needs. What’s more, the nearly constant changes made necessary by new laws or business practices make managing the situation that much harder. Our editors, however, have a suggestion that will help you do it, with a minimum of cost and effort. It’s a remarkable program called Encyclopedia of Prewritten Personnel Policies. Its expert authors have already worked through the critical issues on some 100 critical policy topics, prewritten the policies for you, and tested them at thousands of companies over time. (Alcoholism Policies and Accommodations—What DOL Recommends, July 14, 2008)

In short, my analysis of the HR Daily Advisor memos over a thirteenmonth period shows that the editor and his invited experts, who included management lawyers and various HR professionals, framed the legal environment as a terrain of risk and a province to be navigated only by legal experts. While informative, the HR Daily Advisor memos were also intended to sell HR software, checklists, webinars, and professional expertise designed to reduce that risk. Webinars: Risk for Free and Legal Insight for Pay Six webinars offered by BLR in the fi rst half of 2014 also framed the legal environment as one of very high risk.42 Each webinar had two presenters (in every case, one male and one female). The presenters were predominantly management lawyers, although one was a marketing manager and one was an HR specialist. Three of the webinars were offered free of charge by BLR and three required a fee. The three free webinars were on the topics of HR challenges in 2014, the legal pitfalls of reference checking, and legal challenges posed by technology. The three

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fee-based webinars were on the topics of affi rmative action and EEO obligations for federal contractors, EEOC position statements, and employee complaint investigations.43 The risk theme was prevalent throughout, although it was much more prevalent in the three free webinars, which appeared to be designed to motivate attendees to buy further services, whereas the paid webinars were more focused on advice as to how to reduce the threat of litigation and liability. The themes common to all the webinars were the rapid pace of legal change and the difficulty of keeping up with those changes without expert advice, the growing number of lawsuits and the high risk of litigation and liability, the ambiguity and complexity of the law, and the importance of expert advice. Words such as “pitfalls,” “uncertainty,” “volatility,” and “complexity” were used frequently to describe EEO law and the legal environment, usually together with adjectives such as “increasing” and “on the horizon.” Employers were constantly admonished to be mindful and aware of risk and to seek legal advice. The free webinar on HR challenges presented the direst view of the legal environment. A major theme was that state legislatures were busy fi lling the void created by a gridlocked Congress. The webinar emphasized the difficulty of keeping up with rapidly changing laws; pointed to variation among state requirements; and emphasized the likelihood of new legislation on wages, immigration, gay partners, and pensions. There were frequent references as well to complex recordkeeping and reporting requirements. Plaintiffs’ lawyers were characterized as “crafty,” a theme that was prevalent in materials written by management- oriented compliance professionals.44 The fee-based webinar on how to write EEO position statements, which are sometimes required by the EEOC in response to complaints fi led by employees, interestingly advised HR professionals not to use expensive “legalistic” experts to write these statements, instead advocating a more personal, if formulaic, “story-based” approach. Presented by a management-side attorney who had previously worked for the EEOC, the webinar provided a detailed discussion of the EEOC complaint process with “inside information” on how to tell whether the EEOC is taking a case seriously and, therefore, how many resources the company should devote to the case.45 The presentation portrayed the EEOC, moreover, as biased against employers. In general, all the webinars painted the legal terrain as replete with

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risk, complexity, and ambiguity. All emphasized the rise of litigation, and most characterized litigation as frivolous and unfair as well as extremely costly. As in the HR Daily memos, plaintiffs’ lawyers were portrayed as crafty and sly. The fee-based webinars, however, spent considerably less time establishing the risk of the legal environment and instead focused on steps that employers should take to reduce the risk of liability. The explanations of legal requirements in the fee-based webinars were generally detailed and accurate with respect to the rules. The webinars did have a decided management orientation, with frequent references to how unfair the law was to employers and how easy it was for plaintiffs’ lawyers to elicit large settlements or jury verdicts. Risk and Law Go Together To get a broader sense of how law was represented in these documents, I conducted a computer-based text analysis of 483 documents downloaded from the BLR website46 on the topics of discrimination, compensation, HR administration, performance and termination, and benefits and leave. The documents took various forms: legal summaries, white papers, news articles, lists of interview questions, Q&As with experts, and checklists. I used the text analysis to fi nd words associated with law, risk, fairness, and discrimination in each type of document. The law category included references to law generally, specific laws, accommodation, termination, and employment at will. The risk category included references to risk, threat, hazard, pitfall, danger, trouble, land mine, complexity, trickiness, ambiguity, liability, or audit. As shown in figure 4.2, risk was the most common theme in the documents other than law. Nearly all documents (99 percent) included references to law, and close to half of the documents (47 percent) included discussions of risk. Almost as many articles discussed risk as discrimination (52 percent), even though discrimination is a key construct in EEO law. By contrast less than a quarter (24 percent) of the articles discussed fairness. Other analyses showed that almost half of the documents (46 percent) discussed both risk and law, but virtually all (99 percent) that discussed risk also discussed law. The document types that were most likely to include discussions of risk were checklists (91 percent ) and legal summaries (85 percent ). Those least likely to include discussions of risk were news summaries (40 percent ) and white papers

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Figure 4.2. Percentage of human resource documents by theme (n = 483).

(48 percent). Thus, even a half century after the passage of the 1964 Civil Rights Act, compliance professionals continue to frame the legal environment as threatening.

Explanations for the Risk Framing of the Legal Environment In this section I consider three explanations for the risk framing of the legal environment. To some extent, the motivations for highlighting risk vary across the compliance professions. These explanations are not mutually exclusive, and, indeed, probably operate simultaneously to engender an emphasis on, and often inflation of, the threat of liability. The Professional Explanation: Taking Law Seriously The professional motivation derives from the norms, values, and orientations that are instilled through compliance professionals’ training and education as well as through professional networks. They generally take law seriously because they view compliance as part of their professional

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responsibilities. Further, many companies hire minorities and women disproportionately for HR positions, and they may be particularly motivated by their personal identity and commitment to induce employers to take EEO law seriously. For both professional and political reasons, then, HR professionals may bring their normative commitments to bear in a way that pushes employers toward a greater embrace of legal values. Compliance professionals may expect to encounter resistance from employers who are either opposed to legal intervention on principle or who believe that the law interferes with their ability to select the most qualified candidates, and may therefore emphasize the threat of law to motivate reluctant organizational officials to view the costs of noncompliance as high enough to act. The Power Explanation: Expert Threat Management Another reason that compliance professionals emphasize the risk of the legal environment is to elevate their own power and professional status within organizations. Sociologists of professions point out that aspiring professions must often create a market for their services; claim and demonstrate expertise in servicing that market; and establish, maintain, and legitimate their professional jurisdiction.47 This point is particularly important for the HR profession, which is, in Magali Larson’s terms, “technobureaucratic”: it is generated by, and dependent on, the existence of the corporation. Larson argues that for technobureaucratic professionals, advancement depends on “the capacity to claim esoteric and identifiable skills—that is, to create and control a cognitive and technical basis” and that the “claim of expertise aims at gaining social recognition and collective prestige.”48 The growth of laws regulating the employment relation can be seen as providing HR professionals with precisely such a basis for asserting claims of expertise. In fact, the status of the HR profession has largely depended on environmental threats to organizations: it tends to lose status when the environment favors employers and to gain status when environmental conditions (appear to) favor employees. HR professionals gain power and status, as well as legitimacy, within organizations to the extent that their expertise is critical to managing legal risk. But the power and prestige to be gained from the ability to contain legal threats requires that employers perceive law as a threat and the legal environment as a source of uncertainty. Indeed, the risk framing of the legal environment has been particularly valuable to the status of

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the HR profession. Once relegated to a subservient managerial role, HR professionals are increasingly becoming central to senior strategic management teams. The process works very similarly for in-house attorneys who also gain power and prestige within a fi rm by virtue of being able to manage legal risk. The Market Explanation: Creating a Demand Just as the HR profession stands to gain power by emphasizing legal risk, professions that sell their services to organizations—including the legal profession, the management consulting profession, and the insurance profession—stand to expand their markets by emphasizing the dire risk of litigation and the high likelihood of liability. By portraying law as biased against employers, juries as sympathetic to plaintiffs, and the legal environment as highly complex and difficult to navigate, these professions increase the value of their expertise and the perceived need for their services. For that reason, many websites and newsletters offered by law fi rms or management consulting fi rms are available free of charge but are designed to convince employers that they need to pay for more in- depth analyses of, and more specialized solutions to, the legal risks that they face. Professionalism, Power, and Market Together There is undoubtedly some truth to all three explanations for the risk framing of the legal environment. Further, it seems likely that during the early days of EEO regulation, compliance professionals emphasized risk for the purpose of encouraging greater compliance; over time, however, as the risk framing of the legal environment became widely accepted, they became convinced that the legal environment is, in fact, hostile and threatening. Irrespective of the motivations for emphasizing or exaggerating the risk of liability, the risk framing of the legal environment has increased the status and power of compliance professionals. The HR profession, in particular, has evolved from being responsible primarily for worker hiring and welfare to being involved centrally in organizations’ strategic management. The role that HR professionals play in managing EEO compliance seems critical to this transition. Outside the organization, law fi rms and management consulting fi rms, EPLI providers, and specialty consultants such as diversity trainers have also bene-

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fited from the risk framing of the legal environment. Consultants now comprise a multibillion- dollar compliance industry, advising clients on general legal compliance, sexual harassment, diversity training, and related compliance matters.49 The various compliance professionals do not appear to compete over jurisdiction, probably because their combined efforts increase the value of the compliance enterprise for all. Instead, they work collaboratively to expand all their jurisdictions. HR professionals appear to have developed a symbiotic relationship with the legal profession. Legal professionals offer workshops that train human resource professionals, which give them the expertise they need to offer human resource solutions to legal problems, and HR professionals provide employment to legal professionals as consultants for their organizations. HR professionals may also bring in a variety of outside management consultants, including sexual harassment and diversity consultants. Management consulting fi rms combine and consolidate legal and HR expertise, all the while framing legal threats as dire, while EPLI providers gain market share by encouraging employers to reduce risk through insurance premiums. As the primary professional association in the field, SHRM helps integrate all these compliance professionals and contributes to the increasing centrality of the HR profession to the governance of work organizations. In short, compliance professionals both within and outside of organizations expand the market for their services, and hence their power, status, and legitimacy, by framing the risk environment and claiming the expertise to manage that risk. In framing the legal environment as something of a war zone, compliance professionals can move on to regulate through risk, 50 invoking the threat of litigation and liability to motivate compliance and to construct the forms of organizational compliance.

CHAPTER FIVE

The Diffusion of Symbolic Structures

F

raming the legal environment as replete with risk, compliance professionals, in particular HR professionals,1 positioned themselves as compliance experts who could tell employers how to respond to the changing legal environment. In this chapter, I focus on the role of compliance professionals in shaping compliance both immediately before and during the fi rst quarter century after the passage of the 1964 Civil Rights Act. This was a critical juncture in the evolution of civil rights law and civil rights compliance. Compliance with EEO law could evolve primarily in a substantive direction through hiring and promoting more minorities and women, or it could evolve primarily in a symbolic direction through creating structures such as EEO offices, EEO grievance procedures, and EEO rules that would constitute visible evidence of compliance. Although many organizations did respond to EEO law by seeking to hire more minorities and women, compliance professionals quickly endorsed symbolic structures as both a means to achieve equal opportunity and as visible symbols of attention to law. Over time, symbolic structures would emerge as the primary form of compliance with EEO law. Further, as I will show in the remainder of this book, these structures came to be viewed not just as a means to achieve equal opportunity but as measures of organizations’ compliance with civil rights law. When symbolic structures were effective, the equation of symbolic structures and compliance made sense. But the presence of symbolic structures does not guarantee the substantive achievement of civil rights. As these structures came to be viewed as measures of compliance, it became feasible for organizations to comply by creat-

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ing structures that failed to protect employees’ civil rights or that transformed the meaning of law in ways that benefit organizations.

What Are Symbolic Legal Structures? A structure refers to an organizational office, officer position, program, policy, rule, or practice that exists independently of particular individuals. Most structures are formal in the sense that they are written into organizational policies or designated as part of the formal organization chart. A practice that is widely accepted and regularly used, however, might also be considered a structure even if it is not written into formal policy. A legal structure refers to a structure that is in some way related to law or legal principles. Any policy or practice designed to implement a law or legal principle or that is created in response to law or by an officer with compliance responsibilities, or is a statement that pertains to law, would be a legal structure. Examples of legal structures include health and safety offices, affi rmative action offices or affi rmative action officer positions, diversity training programs, antiharassment policies, grievance procedures, equal opportunity statements, and the like. Some structures that are less obviously legal, like progressive discipline policies and rules regarding attendance or dress, over time come to have legal significance in that they are understood as a commitment to fair and consistent treatment of employees. Thus, these structures may also be thought of as legal structures. By symbolic, I mean that the very presence of these structures evokes a notion of legality and compliance, usually because the structure resembles a form (such as the public legal order) that already enjoys legitimacy and connotes legality. Symbolic does not mean, nor does it necessarily imply, ineffective, and it is not the opposite of substantive. Structures may be both symbolic and substantive or they may be merely symbolic. When symbolic legal structures improve the status of women and minorities, they have both symbolic and substantive value. When symbolic legal structures do little or nothing to advance the status of minorities or women, they are merely symbolic. When I use the term symbolic structure I am referring only to the symbolic value of that structure, irrespective of its substantive value. I use the term merely symbolic to refer to structures that have little or no substantive benefit. As was illustrated in

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figure 2.3, symbolic structures have a continuum of effectiveness, with merely symbolic at one end and both symbolic and substantive at the other.

Title VII and the Compliance Dilemma Title VII posed a compliance dilemma for employers. Not only was the law ambiguous, but employers faced multiple pressures that were sometimes contradictory. On one hand, as noted in chapter 3, the Kennedy and Johnson administrations worked hard to enforce civil rights objectives and affi rmative action for government contractors. 2 Also, as discussed in chapter 3, the EEOC and OFCCP worked together to fi le numerous lawsuits, fi rst against southern employers engaged in intentional discrimination and later taking aim at practices that had the effect of perpetuating discrimination and inequality. Public employers faced possible lawsuits by the Department of Justice, and after 1972, private employers faced the potential for pattern or practice lawsuits by the EEOC. 3 On the other hand, traditional managerial prerogatives, together with social resistance from white and male managers, pressured organizations to maintain the status quo. Social Movement Pressure In addition to the early government enforcement efforts described in chapter 3, social movement pressure had intensified in the four years prior to the enactment of the Civil Rights Act. In 1960 lunch counter sit-ins protesting segregated facilities in Greensboro, North Carolina, and Atlanta, Georgia, drew national attention. The Atlanta protest led to Martin Luther King Jr.’s arrest and the involvement of presidential candidate John F. Kennedy and his brother Robert. At about the same time, the Student Non-Violent Coordinating Committee was formed and began to organize sit-ins, voter registration drives, and civil rights protests. In 1961 seven blacks4 and six whites joined together as the Freedom Riders and began to test compliance with Boynton v. Virginia, 5 the 1960 Supreme Court decision that required nondiscrimination in interstate transportation. A series of violent attacks on members of the Freedom Riders ensued. In 1962 there were protests over the University of Missis-

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sippi’s attempt to block the admission of black student James Meredith despite a Supreme Court ruling requiring that he be admitted. The legendary March on Washington and the Birmingham Campaign protesting segregation took place in 1963. In 1964 three civil rights workers participating in the Freedom Summer voter registration drive in Mississippi— James Earl Chaney, Andrew Goodman, and Michael Schwerner—were murdered. Further, blacks were organizing boycotts of businesses known for discriminatory practices, creating direct pressure on the business community. Thus, by the time the Civil Rights Act was passed in 1964, normative pressure was strong not just from government but also from social movement organizations and activities. Civil rights pressure was the major social issue of the day and awareness of civil rights was high.6 Managerial Resistance to Civil Rights Although employers faced strong pressure to demonstrate civil rights progress in the 1960s and some business elites strongly advocated hiring blacks as a means of responding to that pressure,7 there was also substantial resistance among managers and business elites. To examine managerial views about civil rights around the time that the Civil Rights Act was passed, I examined surveys and articles that were published in management journals in the mid-1960s. These documents show that many managers saw a tension between pressure to hire blacks and women and the traditional ideal of merit-based hiring. Some of the published articles were written by managers or academics who favored civil rights progress but were discussing resistance by others in the industry. The quotes and fi ndings below illustrate the thinking of managers at the time. An article published in 1963, one year before the Civil Rights Act was passed, discussed an interview with the president of a corporation that had contracts with the federal government. The corporation’s general counsel had warned the president that his company was in violation of both contract provisions and state EEO laws because it had no black employees. The author quoted the president as saying: As a rule we just don’t have Negro applicants. And Personnel tells me we’ll stir up a hornet’s nest in the plant if we hire Negroes. We talked with a couple of union officers and they just shrugged it off; said it was our problem, not theirs.8

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The author went on to discuss attitudinal barriers to change in organizations, including among personnel professionals. He concluded by suggesting that managers should implement change slowly to reduce resistance and should begin by hiring black professionals, who were more likely to be accepted by other workers. A study published by the Harvard Business Review (HBR) about six months after the passage of the 1964 Civil Rights Act reported on a survey of two thousand readers regarding their views of the characteristics of promotable and unpromotable executives.9 With respect to the “unpromotable person,” the study reported this fi nding: Factors of race, sex, and national origin appear to be more important deterrents to promotion than the candidate’s dishonest, self-seeking, or authoritarian tendencies. . . . The greatest difference between ideal and actual promotion practices in the area of equality of opportunity is on individual merit. “Race: Negro” is the one characteristic of a candidate for promotion where principle most frequently differs from practice.10

Although most managers reported that race and gender should not be a factor in promotion, there was high consensus that race and gender did matter, with a strong majority of respondents agreeing that blacks (87 percent) and women (77 percent) were less likely to be seen as good candidates for promotion. When asked why blacks were less likely to be promoted, respondents cited traditional stereotypes, community prejudice, residential segregation, and the belief that black employees tended to lack the required education and experience. When asked why women would not usually be promotable, managers replied that male subordinates would be uncomfortable taking orders from a woman and expressed concerns about women not being able to control their emotions. When asked to explain the gap between ideal and actual, 80 percent of respondents pointed to the ambiguity of law by agreeing with the statement, “[I]ndividual executives can generally interpret these equalopportunity policies to suit their own beliefs.”11 One year later, HBR published a survey entitled “Are Women Executives People?”12 It surveyed two thousand executives, half of whom were women.13 The study found that while only 6 percent of male executives said that they were strongly opposed to women in management, another 41 percent looked on the idea with some disfavor. Most male exec-

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utives explained women’s exclusion from managerial ranks by saying that women were not qualified for management or did not have the appropriate attributes of a good manager. There was also widespread concern that even a highly qualified woman would not be a good manager because men would feel uncomfortable working for a woman. Even among the women executives surveyed, more than half expressed skepticism about women in management, which the researchers speculate was based on their experiences or the fact that they saw themselves as atypical. In 1968, as lawsuits were beginning to challenge employment-testing procedures, an article in HBR discussed the problems caused by the government’s focus on employment testing as a source of discrimination. It is often assumed that if Negro applicants score lower than whites, the test must be unfair. But this is not necessarily the case. If low-scoring Negroes are also ineffective workers because of poor education or the debilitating effects of discrimination, it is not the tests that are unfair; it is society.14

Another theme that came through in many of the articles I reviewed was that any type of affi rmative action for blacks (usually discussed as “lowering standards for Negroes”) encountered resistance from white employees. More generally, civil rights laws were viewed as challenges to business efficiency. What should be done if, after all these precautions, a company still does not hire enough Negroes to satisfy top management, the Equal Employment Opportunity Commission, or the conscience of the civil rights-minded supervisor? Management then must consider whether Negroes should receive special treatment, which means either special training to bring them up to job standards or acceptance of poorer performance temporarily, and perhaps permanently. Tolerating inefficiency comes under attack not only from supervisors who are held accountable for the work, but also from other workers who resent seeing another person getting by with performance that they know would not be acceptable from them.15

Resistance came from unions as well as management, which often saw fair employment laws as a challenge to seniority systems, unions’ duty of fair representation, grievance arbitration, methods of recruitment, negotiated job standards, and negotiated work rules.16 An article published in

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1977, entitled “Labor Relations and Affi rmative Action: A Tug- of-War,” for example, contended: Nondiscrimination laws intrude into the collective bargaining process because they essentially introduce another party into what was once a twoparty agreement.17

It is certainly not the case that all managers were resistant to change. By the time Title VII passed, some compliance professionals and other managers had endorsed the broad ideal of opening up employment to minorities. Herbert Northrup, who was a professor at the Wharton School of Business at the University of Pennsylvania, wrote in 1964: Large employers are not fighting the law. Rather they are moving to comply with it before it becomes effective. . . . Similarly, the leaders of labor unions are urging their members and affi liates to obey the law and open up doors to Negroes and other minorities where equal treatment does not exist.18

Nonetheless, my review of surveys conducted and articles published in the 1960s underscores a tension that many managers perceived between legal ideals and business norms and values. Given that the survey respondents were primarily readers of the HBR, who may have been more liberal than the general business community, the surveys may understate the degree of resistance toward hiring minority and female supervisors. Structural Compliance as a Solution to the Dilemma Pressures from social movements and law, on one hand, and traditional managerial perspectives, on the other, created a dilemma for organizations. Especially in light of the ambiguity of Title VII and other EEO mandates, and without much guidance from the EEOC in the early years, how could organizations demonstrate commitment to civil rights while minimizing opposition and preserving managerial prerogative to make decisions that served (or seemed to serve) business interests? Symbolic structures offered a solution because they not only allowed companies to signal attention to civil rights law and civil rights goals but also allowed companies the flexibility to adjust those structures to accommodate managerial and business interests. Through professional

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personnel journals, academic management journals, and professional networks, compliance professionals advocated a variety of symbolic structures, including statements and posters indicating a commitment to civil rights compliance, policies banning discrimination (and later, sexual harassment), the creation of compliance officer positions, grievance procedures, and training and recruitment programs. These structures served as visible symbols of fi rms’ commitment to civil rights. They offered the committed organization a path toward substantive achievement of civil rights objectives. But for resistant managers, these symbolic structures left considerable room for maneuver. Organizations could adopt symbolic structures as a means of achieving equal employment opportunity or as a means of preserving their traditional practices. The Legitimacy of Symbolic Structures The potential of symbolic structures such as EEO rules and grievance procedures to convey compliance with civil rights law derived, in part, from the ready legitimacy of the public legal order. By adopting antidiscrimination policies that resembled statutes, EEO offices that resembled administrative agencies, and grievance procedures that resembled courts, organizational governance took the form of (and thus could benefit from the ready legitimacy of) the public legal order. Grievance procedures, in particular, signified attention to due process, a principle that has always been central to the public legal order but was antithetical to the arbitrary governance systems that had prevailed in the early industrial organizations.19 None of these structures were explicitly mandated by law; yet, in short order, compliance professionals would come to believe that antidiscrimination policies in general and grievance procedures in particular were essential components of civil rights compliance. The emergence of symbolic structures was a critical turn in the evolution of organizational response to Title VII. Civil rights advocates, social movement organizations, and some government officials imagined that compliance with civil rights law would be measured by the representation of women and minorities in the workforce. But prompted by compliance professionals, organizations instead forged a path that would focus on symbolic compliance in the form of policies banning discrimination, procedures designed to promote fair treatment, and programs designed to promote civil rights ideals. These policies and procedures would signal good faith and an intention to move in the direction of civil

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rights but would not necessarily commit organizations to achieve racial or gender equality or even to make substantial changes. The symbolic route would satisfy many civil rights advocates and encounter less resistance from those opposed to civil rights or white and male employees who feared losing their positions of advantage; it also posed far less of a threat to traditional managerial prerogatives. The symbolic route also gave organizations substantial latitude: organizational leaders could go well beyond the mandates of Title VII by seeking to create substantive equality on the basis of race and gender, but they could also drag their feet by failing to enforce their civil rights policies, creating grievance procedures that provided employees with little hope of justice, or putting few resources into their affi rmative action programs. Symbolic structures, in other words, could be symbolic and substantive, or merely symbolic, or somewhere in between.

Early Government Programs and the Roots of Symbolic Compliance The birth of structural compliance precedes the passage of the 1964 Civil Rights Act. Starting in the 1930s, collective bargaining agreements had resulted in the formalization of organizational governance in unionized organizations through formal rules, seniority systems, and grievance arbitration. Grievance arbitration, in particular, introduced the idea of due process in organizational governance. Although grievance procedures in nonunion fi rms would not become common until the civil rights movement and the 1964 Civil Rights Act placed greater emphasis on organizational fairness, 20 some labor relations experts had advocated their use among nonunion fi rms as a mechanism for forestalling unionization. 21 Further, organizational governance had, in general, been undergoing bureaucratization with the institution of formal rules, seniority systems, progressive discipline, job analysis and salary classification, formal hiring, promotion, and layoff systems, and the creation of personnel departments during the fi rst half of the twentieth century. 22 Some structural formalization had already occurred in response to state fair employment laws. By 1964 twenty-five states had already enacted some form of EEO law, many of which involved the creation of fair employment commissions. 23 An analysis of state fair employment laws that was published in 1964 credited the state agencies with improv-

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ing minority group employment status, particularly in New York, where the state commission had studied racial hiring patterns and worked out agreements, backed by sanctions, with several thousand fi rms that had been found to discriminate. One of the most significant models for structural forms of compliance was the Kennedy administration’s Plans for Progress (PFP) Program, which preceded Title VII by several years. 24 But as I show below, the PFP Program did more than provide a model for compliance with Title VII. It also planted the seeds for symbolic compliance strategies that would allow some organizations to continue to discriminate while appearing to meet legal standards and policy goals. As discussed in chapter 3, President Kennedy’s 1961 Executive Order 10925 created the President’s Committee on Equal Employment Opportunity (PCEEO), which was given jurisdiction over federal agencies that issued contracts as well as over federal contractors. The PCEEO was empowered to make rules; engage in recordkeeping; develop an educational program; respond to complaints of discrimination; and impose penalties for noncompliance, including debarment from future contracts. The committee began its work in April 1961. By October 1963 it had heard 2,111 complaints and taken action to eliminate discrimination in 937 of those cases. 25 Early on, however, the PCEEO was criticized for not taking stronger action. The NAACP charged that the government had made a “shameful mockery” of the president’s order by awarding a $1 billion contract to Lockheed Aircraft to manufacture jets at its Marietta, Georgia, plant despite its having segregated facilities and a segregated union. 26 On April 6, 1961, NAACP Labor Secretary Herbert Hill fi led complaints with the PCEEO alleging discrimination at the Lockheed plant and demanded an investigation. The PCEEO found that the NAACP’s allegations were substantially correct. But rather than canceling the contract— the sanction specified in the order—the PCEEO allowed Lockheed to sign a voluntary PFP stating its intention to eliminate discrimination. Even before signing the plan, Lockheed had taken substantial steps toward integration. The black and white unions had merged, and Lockheed had discontinued its segregated restrooms, water fountains, and lunch counters. 27 In its PFP, Lockheed promised reforms in recruitment, employment, placement, and training. Lockheed did make progress, albeit slowly, along these lines. 28 Other complaints fi led with the PCEEO led to similar voluntary agreements in other companies. Only twice did

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the PCEEO bar violators from future contracts, and in both cases the PCEEO quickly lifted the ban after the companies promised to develop policies to promote equal opportunity. Following Lockheed’s voluntary compliance effort, the PCEEO moved to promote voluntary PFPs among other defense contractors, who were encouraged to sign statements of intent to support equal employment opportunity together with steps designed to achieve these goals. This was based on the presumption that employers who committed to equal opportunity would do more to achieve it than those who did not endorse the principle. By August 1964, 268 large corporations had signed up. 29 Each fi rm worked out its own PFP. Some were little more than a pledge not to discriminate while others were more detailed, including education and training programs and efforts to recruit minority groups. Some of the companies made strong and successful efforts to hire more blacks. For many of the fi rms that signed PFPs, however, the signatures and the plans were little more than a symbolic gesture. A report published in 1963 that focused on PFP signers in the Atlanta, Georgia, area showed that only seven of twenty-four signers could produce evidence of compliance with their pledges. In many of the other fi rms, managers did not even know about the plans or the plans were simply ignored. 30 Even among executives who seemed committed to the PFP, the belief that blacks could only be hired for blue- collar jobs was widespread. In the highly publicized case of Lockheed, the PFP strategy produced substantial change. There was some evidence of progress nationwide, moreover, with blacks gaining over 40,000 new jobs among PFP fi rms. But representation of blacks among salaried employees increased only from 1.5 percent to 2.1 percent, and among hourly employees from 8.3 percent to 8.9 percent over a two-year period beginning in May 1961, and most minorities were in low-level positions. 31 Critics, including the NAACP, argued that the relatively weak results of the PCEEO were a product of its emphasis on conciliation and voluntary compliance rather than sanctions. Hill charged: “It is our experience that major US government contractors regard the signing of a ‘Plan for Progress’ as a way of securing immunity from real compliance with the antidiscrimination provision of their government contract.”32 Allowing Lockheed to develop a voluntary plan for compliance

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marked an important government choice to use a strategy of voluntarism rather sanctions to achieve civil rights. Though the PCEEO had the authority to ask the Justice Department to fi le suit to compel a contractor to honor the required nondiscrimination clause in its contract, it never used that power; nor did it ever terminate a contract for breach of the nondiscrimination clause, publicize the name of violators, or ask the Justice Department to prosecute offenders for fraud. 33 The voluntarism strategy likely shaped the future of civil rights enforcement and compliance: compliance would be measured not by the representation of minorities at all levels of the organizational hierarchy but rather by statements of intent to provide equal employment opportunities, which meant that fi rms could comply by demonstrating good faith rather than by making substantial progress toward race and gender equality in the workplace. Firms that publicly demonstrated their commitment to civil rights would be treated leniently, largely irrespective of the results. Other early events also encouraged a strategy of voluntarism rather than sanctions. In response to the 1963 protests and violence in Birmingham, Alabama, President Kennedy called for federal executive departments to accelerate their civil rights efforts. The Labor Department responded by proposing apprenticeship programs to train minorities for skilled trades. But labor unions and businesses fought these programs because they challenged the practice of training the children of existing tradesmen, a practice that effectively kept minorities out of the apprenticeship programs. Willard Wirtz, secretary of labor, offerred a compromise that mandated that apprentices be selected on merit alone “unless the selections otherwise made would themselves demonstrate that there is equality of opportunity.”34 This move, in essence, created quotas: businesses and labor unions could maintain their preferences for children of tradesmen if they could hire enough skilled minorities. But labor and business protested, and in January 1964 the Department of Labor backed away from its quota language and adopted the weaker requirement that programs should provide “current opportunities for selection of qualified members” of minority groups. 35 Government efforts at combating discrimination prior to the passage of the 1964 Civil Rights Act, then, set the stage for an emphasis on conciliation and voluntarism rather than on strong enforcement with accountability and sanctions. The PFP Program provided a model both for the formalization of personnel structures as a mode of compliance

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with civil rights law36 and for the potential for compliance structures to signal compliance without committing organizations to eliminating discrimination.

The Spread of Symbolic Structures Once Title VII passed, symbolic structures spread quickly as the dominant form of compliance with civil rights law. Initially, federal agencies and large corporations with federal contracts adopted these structures, and when compliance professionals embraced them as a successful strategy for complying with civil rights law, many other organizations adopted them as well. Innovation among federal agencies and federal contracts was likely a result of their greater vulnerability to public scrutiny and the early presidential executive orders. The Diffusion of EEO Offices, EEO Grievance Procedures, and EEO Rules Federal contractors were leaders in adopting structural forms of compliance because they were subject to more federal scrutiny and legal ambiguity than were nongovernment contractors. 37 To some extent, Executive Order 11246 endorsed structural compliance by mandating that contractors include a nondiscrimination clause in their contracts, on posters, and in any job announcements. Nothing in the order (or in Title VII), however, mandated the types of symbolic structures that would become the most salient indicators of civil rights compliance: EEO offices, EEO grievance procedures, 38 and EEO rules. Figures 5.1 through 5.4, which are based on data from a national survey I conducted of 346 organizations, 39 show that organizations closer to the public sphere created symbolic structures earlier and at higher rates than organizations further away. Yet even organizations further from the public sphere quickly followed suit. The figures show the percentage of fi rms over time in each sector that had created EEO offices, EEO grievance procedures / offices, and EEO, respectively. For federal agencies, the growth rates for all structures (indicated by the slope) are highest in the 1970s, the period of strongest OFCCP enforcement of the executive orders. In the 1980s, the Reagan administration pulled back on civil rights enforcement. William Bradford Reynolds,

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the Reagan-appointed assistant attorney general in charge of the Civil Rights Division, actively opposed enforcement of goals and timetables and fi led amicus briefs in numerous cases arguing that goals and timetables constituted illegal quotas. Similarly, the EEOC under Clarence Thomas, another Reagan appointee, stopped seeking goals and timetables in EEOC litigation and brought far fewer Title VII lawsuits than it had in the 1970s.40 Yet, as the figures show, organizations continued to create both grievance procedures and EEO rules throughout the 1980s, in some sectors at rates equal to 1970s rates. The reason for this continued growth was that compliance professionals in general, and HR professionals in particular, saw these structures as symbols of attention to civil rights, and increasingly as all but required by civil rights laws even though nothing in Title VII mandates these structures. As I show in the next section, beginning in the late 1960s compliance professionals began to argue that symbolic structures would protect organizations from civil rights liability, even though the Supreme Court would not explicitly adopt that position until 1998, and then only in the context of hostile work environment harassment. Figure 5.1 shows that federal agencies created EEO offices earliest and at higher rates, followed by colleges,41 state and local agencies, and businesses with federal contracts. Businesses without federal contracts were slower to adopt EEO offices. Other analyses42 showed that (taking into account other factors such as organizational size, the presence of a personnel department, and past lawsuits), colleges created EEO offices at more than three times the rate of businesses, state and local agencies created EEO offices at more than four times the rate of businesses, and federal agencies created EEO offices at more than fourteen times the rate of businesses. Also, in the early period after the enactment of Title VII, organizations with federal contracts created EEO offices at almost three times the rate of other organizations. Larger organizations created EEO offices at higher rates than smaller organizations, especially in the 1970s and 1980s. Organizations with personnel departments created EEO offices at higher rates than did organizations without personnel departments in the 1980s. According to my data, unions mattered to the creation of EEO offices prior to 1970 but not later, perhaps because unionized organizations were generally more formalized and more likely to create early EEO offices. My data also showed that prior lawsuits had no effect on the creation of EEO offices. Some other

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114 100

Percentage

80 60 40 20

19

89

84 19

79 19

74 19

69 19

19

64

0

Year Federal government

State and local governments

Colleges

Businesses with federal contracts

Businesses without federal contracts

Figure 5.1. Percentage of organizations with EEO offices by proximity to the public sphere, five-year moving average ( n = 346).

studies, however, have shown that both compliance reviews43 and lawsuits44 did have an effect on the representation of women and minorities in management, suggesting that lawsuits may have evoked more substantive responses from organizations. In sum, for EEO offices, federal agencies were the innovators, followed by other organizations that were more visible and open to public scrutiny (large organizations, state and local agencies, colleges, and federal contractors), and then followed by private nongovernment contractors. That personnel departments mattered more in the later period suggests that after these offices were introduced in the public sector, HR professionals played a large role in their diffusion throughout the private sector. Figure 5.2 shows a similar pattern for the creation of EEO grievance procedures in organizations. Again, businesses without federal contracts were the slowest to create grievance procedures. Although qualitative data (which I present in the next section) reveal that personnel professionals did play a role in the diffusion of grievance procedures, my quantitative analyses did not show that personnel departments had a statisti-

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cally significant effect on the creation rates of grievance procedures.45 A similar study, however, did show an effect of personnel offices.46 The presence of an EEO office resulted in higher creation rates of grievance procedures. Unionized organizations were not more likely to create EEO grievance procedures, suggesting that these procedures were a response to the legal environment rather than to the threat of unionization. Prior lawsuits resulted in the creation of grievance procedures for organizations that adopted grievance procedures in the 1980s. In sum, EEO grievance procedures appeared fi rst among federal agencies and then among federal contractors. Other organizations that were more vulnerable to public scrutiny (state and local governments and colleges) created EEO grievance procedures increasingly throughout the 1970s. Private organizations without federal contracts were slower to adopt EEO grievance procedures, but the procedures continued to spread among these organizations throughout the 1980s. Figure 5.3 shows that the pattern for the diffusion of EEO rules is similar to the pattern for EEO offices and grievance procedures, although businesses without federal contracts did not lag as far behind

100

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84

19

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79

4 19 7

9 19 6

19

64

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State and local governments

Colleges

Businesses with federal contracts

Businesses without federal contracts

Figure 5.2. Percentage of organizations with EEO grievance procedures by proximity to the public sphere, five-year moving average ( n = 346).

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other types of organizations. The difference between this pattern and the patterns for grievance procedures and offices is likely attributable to the fact that policies, which may be copied from other organizations or from templates provided by professional associations, are much easier to create and require fewer resources to maintain than do either grievance procedures or special offices, which require planning, resources, and personnel. Given that EEO rules require far less of a commitment, businesses without federal contracts could create them easily and without much change in organizational practices. Other analyses47 showed that larger organizations created EEO rules at significantly higher rates in the 1970s, the period during which all structures were experiencing the greatest growth. Organizations with personnel departments created rules at about twice the rate of other organizations. Neither lawsuits nor unionization had any impact on the adoption of EEO rules. Figure 5.4 shows the percentages of federal agencies, colleges, and businesses that had created each type of structure by 1989, a quarter century after the passage of Title VII. Although organizations closer to the public sphere generally had more structures in place, many more

100

Percentage

80 60 40 20

89 19

4 19 8

79

19

19

74

69 19

19

64

0

Year Federal government

State and local governments

Colleges

Businesses with a federal contract

Businesses without a federal contract

Figure 5.3. Percentage of organizations with EEO rules by proximity to the public sphere, five-year moving average ( n = 346).

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100

Percentage

80

60

40

20

0

EEO rules

EEO grievance procedures

Government agencies

Colleges

EEO offices Businesses

Figure 5.4. Percentage of government agencies, colleges, and businesses with EEO rules, EEO grievance procedures, and EEO offices by 1989 ( n = 346).

organizations had created rules than grievance procedures, and many more organizations had created grievance procedures than EEO offices. The Diffusion of Other Symbolic Structures The period after the 1964 Civil Rights Act saw the diffusion of many legal structures. In addition to the diffusion of EEO offices, rules, and grievance procedures, there was also diffusion of more general personnel structures such as formal job descriptions, formal salary classification systems, personnel offices, benefits offices, disciplinary hearings, required job postings, salary classifications, formal job ladders, performance evaluations,48 and maternity leave policies.49 Initially created largely to demonstrate attention to civil rights law and more generally to demonstrate fair or rational governance, these structures over time became widely accepted and adopted by the vast majority of US fi rms. As noted earlier, in some organizations these structures offered real opportunities to minorities and women; in other organizations, they did not. But in all organizations, they symbolized attention to legal ideals.

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The Role of Compliance Professionals in the Diffusion of Symbolic Structures The diffusion of symbolic structures occurred in part because networks of compliance professionals and management academics advocated these structures both as a means of achieving compliance with EEO law and of demonstrating good faith with respect to EEO goals. My examination of journals intended for compliance professionals or management academics shows that the rationale for creating grievance procedures in particular evolved from union avoidance, organizational efficiency, and employee morale in the 1960s50 to compliance with EEO law by the early 1970s. 51 Compliance professionals began to sound the drumbeat that personnel policies were essential not only for achieving compliance with EEO law but also to signify good faith efforts to comply with ambiguous legal requirements. For example, in a 1973 Personnel Journal article entitled “Fair Employment Practices: The Compliance Jungle,” the author discussed the difficulty of complying with “the jungle of laws, executive orders, and regulations designed to provide equal employment opportunities and fair employment practices for all.” More than one employer has found himself between a rock and a hard place when pressured by a an FCC [Federal Communications Commission] official or by an official of a contracting agency to “hire a certain number of women, blacks, or Chicanos” in order to meet designated hiring quotas, while at the same time being informed by his State EEOC that to specifically request women, blacks, or Chicanos violates the employment rights of others as protected by Title VII and the relevant state law. . . . Faced with confl icting requirements and interpretations, what can the employer do now? . . . In fact, it could be argued that the laws simply require the employer to do what he should be doing anyway in the interest of management. . . . Policies which are clearly based on sound business reasons will generally, but not always, provide the employer with a supportable defense against charges that the policies are discriminatory. . . . Particularly in those situations where the employer is faced with confl icting demands from different governmental agencies and enforcement bodies, it is helpful to show that he has been operating in “good faith.”52

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A 1974 article entitled “A Total Approach to EEO Compliance” explicitly suggested that nongovernment contractors follow the model of federal contractors: While federal regulations distinguish between requirements levied upon government contractors from those that are not, a total approach to bringing an organization into compliance depends on ignoring such distinctions. 53

The authors went on to recommend that even nongovernment contractors keep statistics on the racial makeup of their workforce, establish a written affi rmative action plan, develop goals and timetables for each job classification, and fi le a voluntary compliance agreement with the EEOC. Another 1974 article advocated formalizing personnel policy as an alternative to hiring women and minorities (who were assumed to be less qualified), simultaneously tying that policy to sound business practices. [M]any executives fi rst consider a short range alternative—simply reducing or dropping standards for minorities and women to increase their immediate participation in the workplace. But we feel strongly that such a “random selection” approach is not in agreement with the Civil Rights Act, is not “affi rmative action,” and is not a sound business decision. . . . The employment system we suggest places emphasis on the validity of the decision-making process—that is, on ensuring that the most qualified person is recruited, selected, placed, trained, transferred, and promoted. And this is exactly the focus of the Civil Rights Act, the governmental enforcement agencies, and the Supreme Court. 54

By the early 1980s the major emphasis was on the value of grievance procedures and antidiscrimination or antiharassment policies for avoiding external complaints and reducing the likelihood of liability. As discussed in chapter 3, in 1980 the EEOC added a new section to its guidelines on sex discrimination, specifying that employers should take steps to prevent sexual harassment from occurring. 55 There was no explicit reference in EEOC guidelines at that time to grievance procedures or policies, yet an article in Personnel in 1981 stated: Liability may be avoided if two conditions have been met: (1) The employer has a policy discouraging sexual harassment, and the employee failed to use

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an existing grievance procedure and (2) the sexually harassing situations are rectified as soon as the employer becomes aware of them. 56

This article was published six years before the Supreme Court first mentioned, in dicta (a statement of opinion that is not part of the court’s formal holding and is not considered legally binding) in the Meritor Savings Bank, FSB v. Vinson57 decision, the possibility that a grievance procedure might help protect an employer from liability, and seventeen years before the Supreme Court defi nitively said in the Faragher and Ellerth decisions that a grievance procedure would be relevant to protecting an employer from liability in the sexual harassment context. It was also eighteen years before the EEOC guidelines explicitly recommended grievance procedures. Similarly, in a 1982 article, HBR’s managing editor, David Ewing, argued that organizations should create grievance mechanisms to avoid government interference, to promote organizational efficiency, to build morale, and to increase their potential value in avoiding liability: Because employee objections to management actions are on the rise, if business doesn’t establish due process at work, government probably will.  .  .  . [M]any people assume that regulation is the answer to inequities in the work force. . . . The key to better corporate governance lies in the hands not of legislators and judges but of executives. 58 An effective form of due process has various advantages for a company. It helps to clear the air so that rumors of an abusive discharge or unfair handling of an objector do not circulate and build up and sometimes, in the end, create a worse situation than the original event. It is valuable for morale. . . . Also, attorneys with whom I have talked believe that an in- company hearing procedure can be helpful in case the employee objector takes the company to court; that is, evidence that an objector has been turned down in a fair hearing will be admitted into a legal proceeding. 59

Not all compliance professionals were convinced of the value of grievance procedures in the early 1980s, as some worried that these procedures could actually increase employers’ chance of liability unless employers acted promptly to end the harassment.60 But that changed in 1986, after the Supreme Court mentioned the potential value of an ef-

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fective grievance procedure in dicta in Meritor v. Vinson. Not only did virtually all compliance professionals recommend antiharassment grievance procedures after Meritor, but many also began to recommend more general antidiscrimination procedures. In a 1987 article in the Employee Relations Law Journal entitled “Legal Consequences of Nonunion Dispute-Resolution Systems,” the author fi rst discussed several state court cases in which courts suggested that if an internal grievance procedure met the basic requirements of due process, a court might defer to an internal grievance process under the same standards used for an independent arbitrator (in which the court will review the case only if the decision had involved substantial misconduct on the part of the arbitrator).61 Then, cautioning that the Supreme Court’s Meritor decision discussed grievance procedures only in dicta, he stated: There can be no doubt, however, that the court viewed the existence of an effective internal complaint procedure as a positive—and possibly dispositive— factor in defense of sexual harassment (and presumably other discrimination) claims.62

Some compliance professionals were aware of the potential for organizational structures that were merely symbolic, as exemplified in this 1977 article in Personnel Journal: There is often great pressure on equal opportunity managers or corporate management to implement visible and often highly popular programs such as supervisory awareness training or career development workshops for women and minorities. Their premature implementation, out of the context of substantive change in the organizational climate and support personnel systems, however, results in limited payoff in relation to expense and effort. In addition, the risk is great for potentially raising expectations of women and minorities through special programs when organizational or managerial support systems do not change in the actual work environment.63

The vast majority of the articles I reviewed, however, advocated for the creation of symbolic structures without any awareness that these structures might be merely symbolic and without any advice regarding how to ensure substantive results.

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The Institutionalization of Symbolic Structures By the end of the fi rst quarter century after the passage of Title VII, compliance professionals had effectively defi ned compliance as a mandate for symbolic structures rather than for race and gender equality. Symbolic structures originated in the public sector, where increased visibility and vulnerability to public scrutiny, along with the threat of lawsuits, led federal agencies and contractors to be innovators in transforming vague legal prescriptions into a workable organizational solution. But compliance professionals quickly became the entrepreneurs who encouraged organizations outside of the public sector to adopt symbolic structures, suggesting that these structures would reduce the threat of liability. Compliance professionals also recommended the formalization of governance generally, including formal personnel offices, formal evaluation schemes, formal disciplinary procedures, mandatory job postings, and the like, to establish the rationality of organizational governance. The EEOC would come to endorse these procedures, and so eventually would the courts, albeit explicitly only in the hostile work environment context. But in the fi rst twenty-five years, the meaning of compliance evolved primarily in organizational fields through the work of compliance professionals. Compliance did not necessarily mean that women or minorities were represented at all levels of an organization or even that they had equal opportunity to be hired or promoted. Compliance meant, quite simply, that organizations had incorporated a set of symbolic structures: most frequently EEO rules and grievance procedures. Symbolic structures caught on so quickly in part because of the early PFP model and also because these structures incorporated the legitimated model of the public legal order, incorporating the form of statutes, administrative offices and officers, and courts. Organizations that had created rules that incorporated the elements of antidiscrimination statutes, or specialized offices with staffs to monitor compliance, or grievance procedures that demonstrated attention to due process looked more legal and rational than organizations without these structures. Given ambiguous legal standards, the law-like appearance of organizations with symbolic structures would help them escape liability for discrimination. The diffusion of symbolic structures did not end after the fi rst quarter century, but it did change. The focus shifted in the late 1980s from

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civil rights to diversity, which caused a diffusion of diversity policies, diversity officers, diversity training programs, and, sometimes, the renaming of EEO policies and offices as diversity policies and offices. In the twenty-fi rst century, the focus would change again, leading organizations to create offices of diversity and inclusion or offices of equity and inclusion. The evolution of an organizational civil rights strategy that focused on policies, procedures, and programs rather than on outcome measures was a subtle move that would have dramatic effects. Eventually, the diffusion of symbolic forms of compliance would lead to a legal consciousness that equates the achievement of civil rights with structural compliance rather than with the ideal of a discrimination-free workplace in which men and women, whites and nonwhites, and employees at the intersections (such as black women) enjoy equal social and economic status. This consciousness is reflected in academic work as well as in the business community. Whereas other scholars tend to treat organizations’ EEO, affi rmative action, and diversity policies as evidence of civil rights progress,64 I view these policies as ranging from both symbolic and substantive (and hence effective) to merely symbolic (and hence ineffective). The key question, of course, is how—and under what conditions— symbolic structures engender more (or less) substantive compliance. I consider that question in the next chapter.

CHAPTER SIX

The Managerialization of Law

O

nce symbolic structures are in place, they become the vehicles through which law is managerialized, or infused with managerial values, goals, and purviews. In the context of their everyday work, as compliance professionals interpret law, devise and interpret organizational policies, resolve disputes, and solve common problems, they will necessarily encounter instances in which legal rules and business norms come into confl ict. Each of these instances becomes an opportunity for compliance professionals to interpret ambiguous legal rules in ways that move law closer to business norms and values. There is, of course, variation across organizations and compliance professionals. Some compliance professionals become internal advocates for EEO ideals so that symbolic structures engender substantive change. But across organizational fields and through professional networks, interpretations emerge that resolve legal ambiguity in favor of traditional managerial prerogatives and business goals. Managerialization in most cases seems to occur gradually, unwittingly, and almost imperceptibly as compliance professionals seek to make sense of legal ambiguity and to resolve the competing legal and business logics that I discussed in chapter 2. Compliance professionals are likely to experience legal logic as abstract and remote but business logic as clear and immediate, making it natural to interpret legal ambiguity in ways that favor business goals and managerial interests. The managerialization of law tends to produce rules that are unenforced, procedures that are biased, programs that are ineffective, and ideologies that legitimate extant racial and gender inequality. Symbolic structures continue to demonstrate attention to equal employment opportunity,

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but they become less likely to achieve that goal. Thus, as law becomes managerialized, symbolic structures move closer to becoming merely symbolic. In this chapter I identify four mechanisms through which law tends to become managerialized within organizations and across organizational fields: (1) internalizing dispute resolution; (2) contracting or managing away legal risk; (3) decoupling legal rules from organizational activities; and (4) rhetorically reframing legal ideals. These types of managerialization are not mutually exclusive and, in fact, often coexist within a single fi rm. Collectively, they help to explain why race and gender inequality persist in the American workplace even though antidiscrimination policies and diversity programs are very common.

Internalizing Dispute Resolution Civil rights law is premised on aggrieved employees’ private right of action, meaning that individuals can fi le complaints with the EEOC or equivalent state agency in response to perceived rights violations and can then sue if the agency does not resolve the complaint. The internal grievance procedure has been one of the most effective tools in the management arsenal for combating the threat of litigation. As shown in the previous chapter, grievance procedures became increasingly common during the 1970s and 1980s. Some were informal “open- door policies” while others were more formal multistep grievance or appeals procedures, but the vast majority of organizations had created some type of grievance procedure by the end of the 1980s. Today, the grievance procedure is considered almost a requirement, even though it is not required by law. To illustrate how the various forms of internal dispute resolution (IDR) have come to managerialize EEO law, I draw on a study of compliance professionals charged with handling complaints for their organizations that I conducted with Howard Erlanger and John Lande,1 and I supplement that study with more recent analyses. The Meaning of Civil Rights Law Compliance professionals interpret civil rights law as broadly consonant with two long-held principles of good management: fairness and consis-

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tent treatment. The managerial construction of civil rights law was evident even in the early years of civil rights compliance, as is shown in this excerpt from a 1975 article in the management journal Personnel, which equated legal compliance with good management and good business practices: [I]t is time for businessmen to think of Title VII not just as a problem but as an opportunity to utilize their human resources more effectively, to increase efficiency of their operations, and to benefit their organizations economically.  .  .  . Systemic discrimination does not result from racial, sexual, or religious bias. Rather it is caused by ineffective personnel or human resource development systems that do not sufficiently match objective capabilities of employees with the growth and production requirements of the organization. 2

The same perspective is reflected in the 2014 Business and Legal Resources’ webinar “Reference Check Best Practices,” where one of the presenters reassured listeners that the legal term “adverse impact” actually meant only that everyone should be treated fairly, without bias or discrimination. 3 Although this statement seems logical, it does not accurately describe the legal standard. Adverse (or disparate) impact in EEO law refers to a policy that has a disparate impact on a protected group rather than to fair treatment. Consistent with these constructions, the complaint handlers in our study of IDR construed law simply as a requirement of fair treatment. The following example was typical: I think the fact that the laws exist to give us, if you want, the hammer, the tools necessary to enforce—not the laws so much but the fact that we believe in fairness, consistency, for this open door mutual respect kind of situation. . . . You tend to start focusing on things like fairness and due process and consistency in your approach. (complaint handler for bank)4

In general, we found almost no references to legal concepts (such as disparate treatment, disparate impact, facial discrimination, bona fide occupational qualification, or accommodations) in our interviews. The single exception came from the only complaint handler in our sample who had a law degree. Although she referred to disparate treatment and disparate impact, calling them “differential treatment and busi-

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ness necessity,”5 she still characterized civil rights law as a basic fairness requirement. When you stand back and look at affi rmative action laws and policies, the essence of them is whether or not there has been fair treatment. . . . Differential treatment and business necessity and all of those things all have fairness as a premise. (complaint handler for college)6

The following quote is an excerpt from a compliance professional who explicitly subsumed law within the meaning of good management: I think that the law becomes a secondary element. I mean if the law wasn’t fair, we’d still be doing what we’re doing because we think it’s the right thing to do and our policies and procedures are based on what we feel are sound personnel practices. (complaint handler for insurance company)7

On its face, the equation of law with good management makes sense: fair and consistent treatment can tame discrimination by reducing arbitrariness and curbing personal biases. But the construction of EEO compliance as equivalent to principles of good management promotes the assimilation of law into the business setting by obscuring the specific requirements of EEO law. This assimilation, in turn, sets the stage for understanding problems as stemming from poor management rather than discrimination and for imagining solutions in managerial rather than legal terms. Avoiding Litigation and Keeping Disputes Internal Whereas the objective in courts, at least formally, is to clarify the law by interpreting it in the context of a particular dispute, organizational complaint handlers readily acknowledge that a primary goal is to keep complaints out of court. You’d like to be able to handle stuff internally because it’s less burdensome to the organization in terms of resource drain, because it is a fair amount of time and energy that has to go into the documentation being sent and there’s always multiple letters and things that go on. And so from an expedient standpoint we’d rather deal with it internally. (dispute handler for insurance company)8

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In addition to avoiding litigation, complaint handlers are generally careful to protect the organization’s position should the complaint proceed to litigation. We of course have to look at the way it may be viewed by a third party should it go to a third party. . . . To say the least it’s not in the best interest of the company to go through litigation of something that can be handled internally. . . . We are aware of case settlements. We are aware of a myriad of things. So yes those things are taken into consideration. We do what we feel is best for the company. (complaint handler for welding company)9

Complaint handlers tend to frame the problem as managerial rather than legal so that it will appear less problematic should a lawsuit ensue. Further, because internal dispute handlers are highly motivated to avoid litigation, they often try to resolve even those disputes that do not constitute a legal cause of action. As a result, organizational complaint handlers address a much broader set of complaints than do courts, but they also tend to see complaints that allege civil rights violations as no more important than those that are purely managerial, such as complaints over parking privileges. This orientation facilitates reframing legal complaints in managerial terms. Reframing Discrimination as Poor Management or Interpersonal Confl ict Managerialization occurs in IDR in part because complaint handlers tend to reframe potential legal violations as evidence of poor management. When employees characterized their complaints as discrimination, complaint handlers usually reframed those complaints as reflecting poor management, communication problems, or interpersonal difficulties. [Sexual harassment] had nothing to do with it—it was a larger workgroup issue in terms of how these people work together and so I brought in a psychologist who worked with the group on how to work together as a team. It wasn’t that this person was putting down women, he was putting down everybody. (complaint handler for clinic)10 I can think of one case about four months ago when we had a person of color, female employee who was complaining about her manager. And when we did

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the investigation, we couldn’t really say that it was discrimination. . . . It really wasn’t that he didn’t like black females or she didn’t like white males, it was the difference in management style, the difference in the cultural background. (complaint handler for bottling company)11 Maybe it means that we had some bad supervisors who have some other kind of agenda and it keeps looking like sexism when it’s really not. . . . It is said— and I believe—that about 50% of what comes to an affi rmative action office is a complaint or concern [that] really is a result of bad management and not discriminatory behavior. (complaint handler for college)12

The complaint handler for the college went on to recount her response to a complaint by a disabled employee. A disabled employee who needed a reasonable accommodation, had requested it through the appropriate channels, and had not been provided the accommodation.  .  .  . We found that just through a number of management problems, if you will, the request for reasonable accommodation wasn’t processed and responded to in a timely manner. And it wasn’t because it was an accommodation request. . . . Management realized that they really had made poor work assignments to everyone in the area, so the disabled employee was just an extreme example of a poor management decision. . . . They revamped the situation and improved the management layout.13

Because our data came exclusively from complaint handlers, we could not determine whether or not discrimination actually occurred. Nonetheless, our interviews reflected a strong and consistent tendency among complaint handlers to characterize complaints of discrimination as managerial rather than legal problems. This framing, in turn, affected the remedies offered. Managerialized Remedies In contrast to remedies in the courts, which generally are designed to compensate victims or to designate certain organizational practices as rights violations, remedies in IDR are designed primarily to encourage harmonious workplace relationships and to avoid litigation. Thus internal remedies tend to be educational, pragmatic, and therapeutic and are only rarely punitive.

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Educational remedies are designed to train managers to avoid similar problems in the future. In general, the focus in educational sessions is not on legal rules or rights but rather on developing a productive work environment.14 For example: Our employees are going to have to learn to work with older employees, younger employees, people of different ethnic backgrounds. . . . What we do in this class is we attempt to make them aware of the differences that maybe you and I may have, our backgrounds and so on. And how we can work effectively together as a team. I mean, if you don’t have a team, you don’t have a company. (complaint handler for printing company)15

Pragmatic remedies are individualized solutions that are based on the idea that it is the interaction between people, and not rights violations, that motivate the complaint. The goal is often to separate the manager and employee who experienced a confl ict, without any attribution of fault or discipline. For example: We can work with the supervisor as well as the employee and any other parties within the city government to make sure that we can resolve the matter on an informal basis via discussions or actionary [sic] steps [or] via relocating [the employee] to a different position within the government. (complaint handler for city)16

Therapeutic remedies, such as counseling, mediation, or facilitation, are used to address problems that are seen as individual employee deficiencies or interpersonal problems. For example: Typically the fi rst session is what I call “get it all out.”  .  .  . You let them dump the load and you know that’s a very tense, difficult, session.  .  .  . It’s part of what in this grieving process you call stages and these types of things you have to do kind of follow stages. . . . Part of it is just a lay it on the line and  .  .  . then break it into pieces, you know, look at the different parts of what the cause of some of these things are. And then, typically depending upon the nature and breadth of what’s going on here, you try and take it cause by cause and talk it through. “Well how can we do this so that you’re happy, you’re happy with this” and try to problem solve the group and work out what I would call a “plan of action” to follow. (complaint handler for clinic)17

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Several complaint handlers told us that most complainants really only want to talk about their concerns. The following example reflects this position and also illustrates how the therapeutic approach may be used to make employees feel better without taking any action. So I tried to get the employee to tell me a little bit about the problem. “Have you talked to your supervisor about this?” And then maybe you could attempt talking to them in this way. . . . And if it is clearly not going to work, I’ll say to the employee, “What is it that you would like me to do?” And sometimes they say, “I don’t really want you to do anything, I just want to talk it over.” (complaint handler for hospital)18

Punitive remedies were rare and generally very mild. The most common punitive remedy was to require the offender to apologize to the victim (which might also be seen as therapeutic). Less frequently, punitive remedies involved oral warnings, a note in the offender’s personnel fi le, or modified evaluations. Very rarely, and usually only after multiple warnings, complaint handlers said that they terminated offenders. The few termination examples that our respondents discussed all involved sexual harassment. But even with terminations, there is an important difference between organizational and legal forums. Whereas court proceedings involve public declarations that a party is liable for rights violations, organizational proceedings and decisions are almost always private and discreet. Other employees within the organization, including victims, are generally not given any explanation of the disciplinary action taken or about why it was taken. To the extent that rights are mentioned, it is usually the privacy rights of the perpetrator. For example: We did terminate him. We told him the reason was sexual harassment. . . . We went back to the employees. We told them that we took an employment action. We didn’t tell them why. . . . We didn’t go back and say that he was terminated for sexual harassment. We just said that “he was no longer employed by the Corporation” because we wanted to protect his rights, the right to privacy that he had. (complaint handler for bank)19

The same complaint handler also emphasized, however, that it is preferable not to dismiss an employee because it is costly. It is our goal to retain any employee because turnover is costly. And we’d rather fi x the problems, create a better environment through better under-

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CHAPTER SIX standing and communication than to just sever somebody and dump them off because they’re garbage. It’s a concept that’s like recycling. You’d rather try to recycle, to save that relationship because we’ve invested time and money rather than just crumple it up and throw it away and try to start over again because of the expense involved in doing that. (complaint handler for bank)20

Reframing Sexual Harassment as Poor Managerial Behavior In another study of IDR, Anna-Maria Marshall examined women’s responses to “unwanted sexual attention in the workplace” at a large, private university. 21 The university had a written, well-publicized policy prohibiting sexual harassment, which defi ned sexual harassment more broadly than the legal defi nition. As in our study of dispute handlers, 22 Marshall found that the managers adopted managerialized constructions of the complaints, reinterpreting events as representing poor management, a lack of professionalism, or personality confl icts, except where the harassment was egregious. She further found that, although the university defi ned sexual harassment broadly, managers defi ned illegal sexual harassment very narrowly, so that many behaviors that a court might treat as illegal harassment were deemed not covered by the university’s policy. Managers claimed that if the harasser lacked formal authority to terminate the victim’s job, or if no physical attack had occurred, or if the woman could not prove that the event both occurred and was unwanted, then the behavior did not constitute harassment. Sexual commentary, crude remarks, and requests for sexual favors that made women uncomfortable were treated as poor managerial behavior but not as rights violations. When confronted with complaints, managers actively discouraged employees from framing grievances as violations of civil rights, frequently suggesting that the challenged behavior did not constitute illegal sexual harassment.23 Although Marshall’s fi ndings are consistent with the fi ndings in our IDR study that complaint handlers reframe discrimination or harassment complaints as managerial problems, her fi ndings contradict the contentions of complaint handlers in our IDR study that they sought to redress all complaints to maintain organizational efficiency. The managers that Marshall studied actively reframed the ambiguous legal construct of sexual harassment to exclude many forms of harassing behavior and discouraged women from pursuing their complaints. Marshall’s fi ndings may be reconciled with ours in that complaint handlers may be-

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lieve they are resolving all complaints when, in fact, they are discouraging employees whose complaints they see as invalid. Managerialization through Internal Dispute Resolution Internal dispute resolution, then, managerializes law by equating civil rights with good management, by reframing rights violations as poor management or interpersonal problems, and by devising solutions that are primarily designed to restore organizational functioning and avoid litigation. Internal dispute resolution results in a de-legalization of disputes and a de- emphasis of rights. Legal rights tend to be de- emphasized and de-politicized, and the ideal of racial and gender equality is replaced with the ideal of good management. Of course, we know from a vast social science literature that courts also deviate from a purely adversarial model. Yet when courts deviate from the formal legal model, they must at least reference legal standards and frame their decisions in terms of legal rights. In IDR, law operates in the shadow of managerial concerns.

Contracting or Managing Away Legal Risk A second form of managerialization occurs as organizations navigate around legal risk through contracts or management. I discuss three examples of navigating around legal risk: predispute mandatory arbitration clauses, employment-at-will clauses, and employment practices liability insurance. I also discuss the role of in-house counsel in recommending these strategies, which provide a means of avoiding risk without making substantive commitments to greater equal employment opportunity and may therefore encourage structures that are merely symbolic. Predispute Mandatory Arbitration Clauses Predispute mandatory arbitration clauses allow employers to opt out of the risk of civil rights litigation by using private arbitration instead. In most cases, these clauses are incorporated into employment contracts or stated in employment applications or handbooks. Mandatory arbitration clauses have become increasingly common in recent years; in fact, the proportion of workers covered by nonunion employment arbitration now exceeds the proportion covered by union contracts. 24 Employees have no

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right to bargain over the terms or to opt out (other than to exit the workplace). Mandatory arbitration allows employers to avoid jury trials and large damage awards, which were made possible by the Civil Rights Act of 1991, and it subjects employers to a limited and less burdensome set of remedies. 25 Empirical evidence shows that employees are less likely to achieve redress for rights violations under arbitration than under litigation, 26 and academic commentators have called them unfair, even alluding to them as the contemporary equivalent of a yellow dog contract.27 Yet, as discussed in chapter 3, since the 1980s predispute mandatory arbitration clauses have consistently been upheld by the courts. Mandatory arbitration managerializes EEO law by making legal precedent far less relevant to the resolution of disputes and by giving employers more control over the process. Arbitrators, who are generally selected from a panel of retired industry executives and who need not decide cases according to legal precedent—and sometimes have little familiarity with law—tend to favor employers’ perspectives. Yet, their decisions can be set aside by a court only when there is “manifest disregard of the law.”28 Employment- at-Will Clauses Employers also manage away risk through the use of contractual clauses designed to escape the risk of wrongful termination liability by specifying that employees work at will and may be terminated for any reason, with or without just cause. As with mandatory arbitration clauses, at-will clauses are included in employment contracts, handbooks, or application forms. Employees can neither bargain over these clauses nor opt out. Use of these clauses surged in the 1970s and 1980s, 29 about the same time as which there was a proliferation of articles in management journals proclaiming the threat of wrongful termination litigation. Virtually all management consulting fi rms today recommend employmentat-will clauses, and numerous sample clauses are available on the Internet. Although employment-at-will clauses do not limit statutory claims, they manage away the risk of lawsuits for violation of the implied contract for just cause dismissal by specifying that employers have the right to dismiss employees with or without cause.

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Employment Practices Liability Insurance Employment practices liability insurance (EPLI) is yet another form of managing away risk. As noted in chapter 4, EPLI allows employers to purchase insurance against liability for claims of discrimination, wrongful termination, sexual harassment, and a variety of other employmentrelated claims. 30 The percentage of fi rms covered by EPLI is still small, ranging from about 6 percent to 10 percent across the United States31 but EPLI is more common among larger fi rms. 32 From five carriers in the early 1990s, the industry has grown to fi fty to fi fty-five carriers with a volume of business around $1.7 billion in 2014. 33 Although it is a relative latecomer to the employment discrimination scene, EPLI offers employers a means of converting the uncertain risk of a discrimination complaint into a fi xed risk of doing business. Many states prohibit insuring against punitive damages, yet EPLI carriers provide this coverage through “offshore wraparound” clauses or “most favored venue” clauses that ensure such coverage is not prohibited. 34 Because insurance companies include various clauses that allow them to avoid expensive litigation (e.g., “consent-to-settle clauses”), large employers may pay higher premiums in exchange for more control over the terms of the insurance contract. EPLI managerializes law by simultaneously reducing organizations’ risk of liability and reinforcing the importance of symbolic structures. EPLI insurers attempt to regulate their insured clients by offering “loss prevention” services such as webinars, audits, expert hotlines, manuals, and other resources designed to minimize the risk of claims against the company’s policy. With a few exceptions, 35 EPLI loss prevention strategies simply mimic the compliance strategies that have become institutionalized among organizations and that compliance professionals generally recommend. For example, an EPLI handbook for HR professionals, employers, and insurers recommends written procedures, written job descriptions, employee handbooks, sexual harassment training and formal harassment policies, progressive discipline policies, at-will clauses to avoid wrongful termination lawsuits, and arbitration clauses to reduce or avoid litigation. 36 Thus, EPLI, in essence, conditions insurance on the creation of symbolic structures rather than on the substantive achievement of equal employment opportunity.

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The Role of Inside Counsel in Navigating around Legal Risk Internal legal counsel help organizations to develop strategies that contract and manage around legal risk, and in so doing they encourage the managerialization of law. Compared to outside counsel, in-house counsel tend to identify more with the interests of the organizations they serve, to see law more as barriers than as norms, and to seek loopholes through those barriers. In-house counsel can act more as strategic advisers to organizations than as cautionary enforcers. 37 As in-house counsel play a greater role in organizations’ legal business, they may make organizations not more compliant but rather more skillfully evasive. 38 The more deeply lawyers are embedded in the organization, the more likely they come to use their expertise to serve, rather than to question, prevailing managerial objectives, making it more likely that law will become managerialized by deft use of lawful tools to navigate around civil rights law.

Decoupling Legal Rules from Organizational Activities A third form of managerialization occurs when organizations decouple39 their symbolic structures from their everyday practices by having policies and procedures on the books that have little or no impact on everyday organizational practices. Organizations often have formal antidiscrimination policies that coexist with informal practices that favor whites or males; antiharassment policies that coexist with informal organizational cultures that condone harassment; formal affi rmative action plans together with informal obstacles to minority and female employment; or formal grievance procedures that employees do not use because they fear retaliation. Decoupling formal policies from informal practices offers a solution to the dilemma posed by legal ideals that clash with managerial prerogatives. Decoupling may occur by design in some organizations, but it is more likely to develop inadvertently because organizational cultures or subjective decision-making practices perpetuate both overt and implicit bias and stereotypes. Because decoupling facilitates discriminatory practices, it can increase an organization’s risk of lawsuits and liability. Yet the three forms of navigating around legal risk that I discussed above—mandatory arbitration, employment-at-will clauses, and EPLI—facilitate decoupling by reducing organizations’ risk of lawsuits and liability.

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Empirical studies show that symbolic legal structures often fail to produce substantive effects. Stephen Petterson and I examined the effect of four symbolic structures—EEO offices, affi rmative action plans, affi rmative action training programs, and affi rmative action recruitment programs—on the change in minority and female representation in a national sample of organizations between 1984 and 1989.40 Of those four structures, only affi rmative action recruitment programs significantly increased the workforce representation of both minorities and women. Organizations with a recruitment program increased their share of minorities 15 percent more than those without a recruitment program. Training programs, however, had negligible effects on the representation of minorities. Furthermore, controlling for the presence of a recruitment program, neither EEO offices nor affi rmative action plans led to higher proportions of minorities or women over the period studied. Affirmative action plans, in fact, had a statistically significant negative effect on the percentage of women, and that effect was magnified after controlling for the presence of an affi rmative action recruitment program. Similarly, a study by sociologists James Baron, Brian Mittman, and Andrew Newman,41 who used data on California state agencies between 1979 and 1985, found that the presence of an affi rmative action plan had a strong and significant negative effect on gender integration. Sociologists Alexandra Kalev, Frank Dobbin, and Erin Kelly provide the most convincing evidence to date that organizations’ internal legal structures are often ineffective. In a 2006 study,42 they used EEO-1 data from the Equal Employment Opportunity Commission, as well as survey data, to examine the effects of seven common types of internal legal structures (affi rmative action plans, diversity committees and task forces, diversity managers, diversity training, diversity evaluations for managers, networking programs, and mandatory programs) on the representation of white men, white women, black women, and black men in management in private-sector fi rms. They found that the most effective practices are those that establish organizational responsibility (affi rmative action plans, diversity committees, and diversity staff positions) and the least effective are those that target managerial stereotyping through education and feedback (diversity training programs and diversity evaluations). That Kalev and colleagues found affi rmative action plans effective whereas the earlier studies did not may suggest that affi rmative action offices have become more effective over time. Another explanation, however, is that the earlier studies were examining the relationship

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between structures and overall employment while Kalev and colleagues were examining the relationship between structures and representation in management. This would suggest that affi rmative action plans are more effective at encouraging the hiring and promotion of minorities and women to managerial ranks than at encouraging the employment of minorities and women more broadly. Taken together, these studies provide strong evidence that, while some symbolic structures are effective in improving the workforce status of women and minorities, many symbolic structures are not. There is substantial variation across organizations in the effectiveness of symbolic structures. Although many symbolic structures are also substantive, meaning that they do help to improve the workforce status of women, minorities, and other protected groups, the mere presence of symbolic structures does not guarantee such an improvement. By decoupling their formal structures from their informal practices, organizations can have in place all the symbols of equal employment opportunity and yet informally condone practices that systematically favor whites and males. Decoupling, like navigating around legal risk, engenders managerialization by providing symbolic cover for practices that fail to constrain managerial bias and by reifying the notion that the law requires symbolic structures rather than nondiscrimination.

Rhetorically Reframing Legal Ideals: The Diversity Phenomenon No one speaks of quotas anymore and very few speak of affi rmative action or even civil rights, but diversity rhetoric is ubiquitous. Virtually every organization has diversity officers and diversity programs, although in the past few years, some of these have been renamed offices of equity and inclusion. Many managers have diversity goals, and some are evaluated on the basis of their achievement of diversity. Diversity training is commonplace,43 and diversity consulting is an $8 billion-per-year industry.44 To examine the rise of diversity rhetoric and its significance for managerialization, I draw on a study that I conducted with Sally Riggs Fuller and Iona Mara-Drita.45

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The Rise and Progression of Diversity Rhetoric In the mid-1980s, compliance professionals began to talk about diversity instead of about the legal constructs of equal employment opportunity and affi rmative action. Figure 6.1 shows the rise and progression of diversity rhetoric in the management literature relative to mentions of affi rmative action and equal employment opportunity.46 Figure 6.1 reveals a sharp increase in articles discussing affi rmative action during the late 1970s and early 1980s, a time when civil rights enforcement was at its strongest and organizational attention to and support for civil rights was relatively high. Diversity rhetoric, by contrast, rose during a period of relatively low attention to civil rights in the professional management literature. Attention to diversity in that literature began in earnest in 1987, rose sharply through 1993, and then declined somewhat between 1993 and 1996. By 1993 the number of articles discussing diversity exceeded the number that discussed civil rights, EEO, and/or affi rmative action.47 The increase in civil rights and affi rmative action rhetoric in the mid1990s, which coincides with the peak in diversity rhetoric, may reflect

Number of articles

80

60

40

20

96 19

93 19

90 19

7 19 8

84 19

19

81

8 19 7

19

75

0

Year Diversity

Civil rights—EEO only

Civil rights—EEO/affirmative action

Figure 6.1. Frequency of articles with diversity or civil rights rhetoric, 1975 to 1996. Source: Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric,” 1610, fig. 1.

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a backlash against affi rmative action in civil rights law in general. The inception of diversity rhetoric is apparent in management textbooks as well as in the professional personnel literature. Prior to the late 1980s, the term diversity could not even be found in the indexes of most management textbooks. In contrast, by the 1990s, it became common for management texts to emphasize diversity efforts and the importance of diversity. The rise of diversity rhetoric, then, appears to have come at a time of considerable legal ambiguity and controversy over affi rmative action. The 1980s saw a fair amount of opposition to affi rmative action from the Reagan administration and from an increasingly conservative Supreme Court. The likely reason for the rise of diversity rhetoric in 1987 was the publication of Workforce 2000: Work and Workers for the 21st Century,48 which predicted dire changes in the composition of the American workforce by the year 2000 and which was widely cited in the management literature. This publication spurred a perceived crisis in the management field and gave rise to new ideas about how to manage a workforce that was becoming increasingly diverse on the basis of sex, race, ethnicity, and national origin. In particular, the prediction from Workforce 2000 that was most frequently cited in the management literature was that by the year 2000, the workforce would be drastically more diverse and this diversity would create substantial problems for management. Although the claims proved to be inaccurate,49 they likely contributed to the rise of diversity rhetoric. By the mid-1990s, then, everyone in the organizational world seemed to be striving for diversity. But diversity was not simply a new name for civil rights, equal employment opportunity, or affirmative action. Rather, the shift from the language of civil rights to the language of diversity reflects an important transition in thinking about EEO law. 50 The Meaning of Diversity Diversity rhetoric subtly but dramatically reshaped the focus of civil rights compliance by de- emphasizing the focus on race and sex and replacing it with a broad set of dimensions on which organizations could achieve diversity. To analyze the meaning of diversity, Sally Riggs Fuller and I conducted a qualitative and quantitative content analysis of the professional management literature prior to and during the period when diversity rhetoric became popular: 1975 to 1996. 51 We coded the extent

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to which authors discussed diversity along dimensions protected by law (race, color, sex, religion, national origin, disability status, pregnancy, age, veteran status, and sexual orientation)52 and along other, nonlegal, dimensions (such as culture, geographic location, dress style, lifestyle). Table 6.1 shows all the specific constructions of diversity that we found as well as their frequency in our data set. Although legal construcTable 6.1. Constructions of diversity Articles Using Construction (%)

Construction Legal: Race or ethnicity

85.0

Sex

77.7

Age

40.2

Disability

28.7

National origin

35.3

Other legislation (e.g., religion)

24.5

Gay/lesbian

a

28.3

Nonlegal: Cultural

43.4

Geographical

9.8

Level/rank within organization

9.8

Training

11.9

Communication style

10.9

Problem- solving style

8.0

Prior work experience

10.1

Attitude, lifestyle, behavior b

22.7

Diversity of employee benefits

12.9

Diversity of customer/client base

8.0

Diversity in services and products

1.0

Diversity includes white men

11.2

Source: Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric and the Managerialization of Law,” 1608, table 2. Note: N = 286 a Some state and local employment discrimination laws prohibit discrimination based on sexual preference. b Excludes lifestyle based on legally protected categories (such as religion and sexual preference), which would be coded under the relevant legal construction variable.

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tions are more prevalent than nonlegal constructions, and almost all the articles mentioned at least one legally protected dimension along which diversity is important (usually race or sex), many articles conceptualized diversity in ways that had nothing to do with the law or with groups that had been socially disadvantaged or underrepresented in the workforce. Specifically, the management literature emphasized the importance of diverse attitudes, work styles, communication skills, and cultural competence. Some articles advocated diversity on dimensions that seemed even further from the formal legal model, such as rank or function in the organization; educational background; and characteristics that might seem trivial, such as chattiness or thinking style. The following examples illustrate how the managerial conception of diversity significantly expands on the formal legal model and emphasizes nonlegal dimensions. PG&E defi nes diversity as any difference in race, gender, age, language, physical characteristics, disability, sexual orientation, economic status, parental status, education, geographic origin, profession, lifestyle, religion, or position within the hierarchy of the organization. 53 At Hallmark, diversity includes, but is not limited to: ethnic origin, religion, gender, age, sexual orientation, disability, lifestyle, economic background, regional geography, employment status, and thinking style. 54 [At Westinghouse we] value diverse opinions, diverse skills, and diverse personalities all working in harmony in a team. Diverse people each bring their special skills and the ability to see a problem from a different angle, and that’s important.  .  .  . We look for people from all different social and academic backgrounds and try to mix quiet with talky people, electrical engineers with software and quality-assurance engineers. 55

Rationales for Diversity Although the legal rationale for diversity can be found in the management literature, the emphasis is on the business rationale for diversity, or, in other words, its value for organizations’ profitability. Diversity rhetoric asserts that mixing different types of employees tends to increase productivity and effectiveness because people with different characteristics have different attitudes, work styles, and cultural knowledge, which

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makes them assets to corporations in a changing world. As illustrated by the following examples, the idea of diversity as a resource looks beyond the legal categories of race, sex, religion, and national origin to the business case for valuing diversity, in particular linking diversity to an organization’s bottom line. Consider the following strategic business advantages to managing diversity: a richer variety of ideas, greater creativity, a better and more flexible understanding of diverse markets, and an improved ability to go global. 56 Academic studies confi rm that heterogeneous workgroups create solutions to work and business problems that are more innovative and more effective than those developed by homogeneous groups. 57 In recent years, diversity as an issue has taken on a new face in business, one not involving morals and laws, but one with potential consequences for business’s bottom line. 58

Management textbooks from the same period made similar statements: Valuing diversity is not only the right thing to do, it’s the right business thing to do. Companies that do a good job of valuing and effectively managing diversity in the 1990s will have a competitive advantage over the ones that don’t. Paying attention to the diverse work force has become an economic imperative. There is no question that the work force is changing and U.S. organizations have to change to reflect the new work force composition. 59

Profit was the most frequently cited reason offered by the articles in support of organizational diversity: nearly 50 percent of all articles referred to its value for organizational profit. In contrast, only 19 percent of the articles mentioned law as a reason for supporting diversity, and only 30 percent mentioned fairness. The emphasis on profit in the diversity articles appears to be a means of rationalizing the need for management techniques that incorporate workforce diversity. The business justification for diversity, moreover, involves a fairly explicit disassociation of diversity from civil rights law. Fewer than half the articles in our sample (48 percent) even mentioned civil rights or civil rights law, and of those that did mention civil rights, many explicitly differentiated diversity from civil rights or even expressed hostility toward

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civil rights or civil rights law. In general, articles portrayed civil rights law as external, imposed, and a negative force on organizations and portrayed diversity as good for employee morale and for harmonious employment relations, as well as for profit. Overall, sixty-seven articles (49  percent of those that mentioned civil rights) made negative statements about civil rights or civil rights law or stated that diversity was clearly superior to civil rights. One of the most common forms of comparison was to note the artificial or imposed nature of legal mandates while claiming that diversity had a natural character. Compliance implies a mandate. And conformity is exactly the opposite of what diversity is all about. Instead, your objective should be a culture that breeds harmony and rapport, which in turn provide creativity, effective decision making and better teamwork.60 [Managing diversity is] not a problem to be solved, not the excesses of legal recourse, nor, by extension, the extremes of the thought police or politically correct enforcers. Using diversity as a process to be managed unleashes performance energy that was previously wasted in fighting discrimination.61 While the doors of opportunity were opened to many who were previously excluded, new hurdles were created by the unnatural focus on special target groups in organizations, the perception by white managers that standards were being lowered to accommodate minorities and women, and the perception that EEO and AA [affi rmative action] programs were artificial methods forced upon organizations and their managers to pay for the historical sins of U.S. society.62 Managing or valuing diversity differs from the conventional approach to equal opportunities in that it seeks to create a climate whereby those involved want to move beyond the achievement of [a] mere statistical goal.63

Management textbooks also suggested that diversity is better than civil rights. Consider the following example: Sometimes managing diversity is confused with affi rmative action or other laws directed toward those with certain characteristics. Actually, the two concepts are quite different. Affi rmative action emphasizes achieving equality of opportunity in the work setting through the changing of organizational demo-

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graphics—gender, age, racial and ethnic mixes, and the like. It is legally driven. . . . Managing diversity, in contrast, emphasizes appreciation of differences in creating a setting in which everyone feels valued and accepted. .  .  . Managing diversity assumes that groups will retain their own characteristics and will shape the fi rm as well as be shaped by it, creating a common set of values.64

These excerpts illustrate the role of diversity rhetoric in disassociating the new managerial model—managing diversity—from compliance with civil rights law. Whereas legal compliance is portrayed as coerced, unnatural, and divisive, managing diversity is portrayed as voluntary, sensible, and good for rapport. Diversity rhetoric, then, is not simply grafting a new name onto an old model. Rather diversity rhetoric supplants legal categories with a new schema that equates dimensions based on historical disadvantage of discrimination with those that are based on managerial ideas about how to produce an effective and creative workforce. Diversity rhetoric managerializes the law by diluting the focus on legal categories of diversity and, in so doing, weakening the potential of law to improve the workforce status of minorities and women. Factors That Predict Managerialization in the Diversity Context Three factors65 seemed especially salient in predicting when journal articles used nonlegal, or diversity, frames rather than civil rights frames. First, articles written by management consultants were significantly more likely to employ nonlegal conceptions of diversity than articles written by academics, staff writers, journal editors, and other authors. Management consultants, who had played an increasingly significant role in advising HR professionals, were clearly important drivers of broadening the conceptualization of diversity to include nonlegal categories. Second, articles that emphasized the value of diversity for increasing organizations’ profits were significantly more likely to employ nonlegal conceptions of diversity than articles that either gave no reason or cited law or fairness as a reason for diversity. This is consistent with our qualitative fi ndings, which show an association between nonlegal conceptions of diversity and what has become the business case for diversity, or the idea that diversity offers a competitive advantage. Third, articles that characterized civil rights law negatively were more likely to employ nonlegal conceptions of diversity than those that did not include negative characterizations civil rights law. And, conversely, articles that

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discussed civil rights law were more likely to use legal conceptions of diversity. Overall, both our qualitative and quantitative results show that the shift from civil rights law to diversity was associated with a greater focus on managerial values and interests. Diversity Today Today, the vast majority of large companies have diversity offices and diversity programs.66 A study by sociologist Ellen Berrey analyzed diversity in a multinational Fortune 500 fi rm. Although the company highlighted its diversity efforts and had a diversity management department with five staff members, she found that diversity was “in many ways a symbolic artifice, disconnected from consequential employment decision-making and overseen by personnel without much authority.”67 She reported that the diversity department had little authority to influence the predominantly white male executives who did have authority over minorities and women. As in our study, Berrey found that managerial notions of diversity extended far beyond diversity on the basis of legally protected categories. For example, in its diversity training, the company characterized the difference between “daytime” and “nighttime” people as a form of diversity that should be valued.68 The company’s website, like so many others, featured photographs of young, attractive people of varying racial appearances as well as quotes from unnamed nonwhite employees proclaiming the value of the company’s diversity program.69 Yet Berrey found that the diversity program had little if any impact on the representation of minorities and women. Changes in the representation of minorities and women at the corporation were evident only among professional and executive ranks and were not significantly different from changes in the US workforce overall. More recently, the meaning of diversity appears to be undergoing another shift—from an emphasis on characteristics of employees (even if nonlegal) to an emphasis on market diversity. One still fi nds attention to diversity in employee characteristics, but the focus seems to have shifted even further away from the idea of civil rights and more toward diversity in business products and customers, emphasizing the value of diversity for global expansion and business success. Along these lines, Berrey noted that the corporation she studied began to emphasize diversity in product lines in the early 2000s.70 The transformation in focus from workforce diversity to market di-

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versity and business growth is also evident in the diversity statements on many company websites today. In its 2014 Diversity and Inclusion Report, for example, Walmart more clearly linked diversity to business success and stated explicitly that diversity is about more than legal categories. The report came from Walmart’s Global Office of Diversity and Inclusion and included the following statement from Walmart’s global chief diversity officer. At Walmart, we are uniquely positioned with our scale and scope to make a far-reaching, positive impact with Diversity & Inclusion (D&I). When linked with our business strategy, D&I becomes a competitive advantage. With globalization and our aggressive growth in international markets, we need a diverse range of talent to enable our business success. We know that diversity is about more than race, gender, sexual orientation and disability. It is about seeking out, celebrating and valuing a variety of backgrounds, perspectives, opinions and styles. Inclusion is about engaging and leveraging the differences and unique strengths of our associates. Having a diverse workforce built upon an inclusive environment results in innovation which drives business growth.71

In a message from its CEO in a diversity brochure, Exxon (ranked number two on the Fortune 500 list) emphasized global diversity but did not mention civil rights law. Our global reach is evident in more than just our physical locations. Worldwide, ExxonMobil’s workforce reflects the local communities in which we operate, giving us a diverse and multi-faceted employee base of unique individuals—each with ideas and perspectives born of their distinct backgrounds. That diversity and inclusion of thought, skill, knowledge and culture makes us more competitive, more resilient and better able to navigate the complex and constantly changing global energy business. Diversity strengthens us by promoting unique viewpoints and challenging each of us, every day, to think beyond our traditional frames of reference.72

In a vague reference to law, IBM stated that diversity goes beyond fair hiring practices: IBM’s enduring commitment to diversity is one of the reasons we can credibly say that IBM is one of the world’s leading globally integrated enterprises. We also understand that diversity goes beyond fair hiring practices and pro-

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tection for all employees. It includes a focus on how those disparate pieces fit together to create an innovative, integrated whole. We call this approach inclusion. While our differences shape who we are as individual IBMers, our shared corporate culture and values remain central to our mutual success. IBMers around the world work in an environment where diversity—including diversity of thought—is the norm, which yields a commitment to creating client innovation in every part of our business.73

The last statement, which elevates a shared corporate culture over individual differences, may reveal one reason for the ineffectiveness of diversity programs. Lauren Rivera, in a study of hiring practices at elite professional service corporations, found that although fi rms sought diversity in applicant pools, they hired on the basis of “cultural fit,” or the idea that employees should be selected on the basis of whether their personalities and values mesh with a corporation’s culture. Over half of the evaluators she studied ranked cultural fit as the most important criterion in assessing applicants.74 Cultural fit was assessed, she found, by cultural similarities between the interviewer and interviewee, with the result that those hired tend to be similar to current decision makers. In her interviews, a member of a law firm’s hiring committee analogized cultural fit to chemistry in the context of dating, and a manager at an investment bank tied cultural fit to someone who he would enjoy being stuck in an airport with.75 According to a 2013 international survey of employers conducted by the management consulting fi rm Cubiks, 59 percent of respondents said that they had rejected candidates based on their lack of cultural fit.76 To the extent that hiring emphasizes cultural fit, companies are likely to reproduce the racial and gender makeup of their current workforce, rendering attention to diversity more symbolic than substantive. Rivera’s study also showed that, despite claiming to value diversity, elite professional fi rms recruit primarily from the highest tier of elite universities, which reduces the number of minorities in the applicant pool. Recruiters, moreover, were quick to conclude that eligible minorities who did attend elite schools were not interested in their jobs and that those who were interested were not qualified. Although these fi rms participated in diversity job fairs, they tended to see these fairs more as publicity opportunities than as a means of recruiting minority applicants.77 Other studies also call into question the substance of organizations’ diversity efforts. Alexandra Kalev and her colleagues studied the efforts of diversity structures in increasing the proportion of women and mi-

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norities in management and found that the most common practices— diversity training programs—are ineffective at bringing women and minorities into management. Diversity mentoring programs and diversity taskforces were found to be more effective but are far less common practices in organizations.78 And Ellen Berrey’s study of diversity in multiple organizational contexts shows how diversity legitimates organizational inequality. She argues that although diversity has some benefits for women and people of color, it serves to relieve organizations—and white people generally—from responsibility for the remaining inequality.79 The rhetorical transformation from civil rights to diversity in the American workplace is perhaps the most powerful form of managerialization that has occurred. The public commitment to progress in minority hiring, and in particular to the hiring of black Americans, which characterized the 1960s and 1970s, has gradually morphed into a commitment to diversity—a construct that is almost universally accepted as valuable and yet does little to promote race and gender equality in the workplace. The transition from diversity on the basis of protected legal categories to diversity in the sense of respecting all people may seem innocuous, or even valuable. But it weakens the potential of EEO law by subtly displacing the goal of race and gender equality. Whereas the language of equal employment opportunity calls attention to the need to remedy racial and gender inequality based on a long history of disadvantage and discrimination, the language of diversity and inclusion implies that all differences are equally salient. Yet a workplace can be committed to diverse thought, opinions, talents, and strengths and still be disproportionately white and male. As with all symbolic structures, there is variation among fi rms, and some diversity programs genuinely seek to increase race and gender equity. But empirical studies suggest that diversity is more impression management than a means of achieving a racially diverse workforce and race and gender equity in organizations.

The Implications of Managerialization for Symbolic Structures The managerialization of law subtly transforms EEO law within organizations, often despite the best intentions of compliance professionals to enact and enforce the law within their organizations. As compliance professionals who staff and enforce symbolic structures encounter

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everyday problems and engage in everyday decision making, the logics of law and business frequently come into confl ict. In doing their jobs, compliance professionals unwittingly tend to interpret ambiguous legal rules in ways that move law gradually but steadily toward business objectives. In the face of ambiguous legal standards, it is not surprising that much clearer business objectives influence compliance professionals’ constructions of law. The managerialization of law is variable across fi rms. Some compliance professionals become legal activists who challenge rights violations, promote rights recognition, and press legal ideals upon recalcitrant administrators and employees alike. As legal activists, compliance professionals can sometimes achieve real change and ensure that symbolic structures are substantively effective. But if they push too hard, they may lose their autonomy or their jobs.80 More commonly, compliance professionals are committed to EEO compliance as an abstract ideal but understand compliance not in terms of the goals articulated by civil rights advocates in the 1960s but rather as a set of best practices consisting of antidiscrimination and antiharassment policies, grievance procedures, and other symbolic structures. As they carry out their daily activities, they often unwittingly elevate business goals above legal ideals, facilitating the managerialization of law. The transition from a law that imposes new standards and goals on organizations to a law that is consistent with business objectives has been gradual and inconspicuous—but nonetheless consequential. As the managerialization of law occurs, structures created to symbolize attention to law begin to focus less on the achievement of race and gender equality and more on reducing workplace confl ict, navigating around the law, decoupling symbolic structures from business goals and managerial practices, and rhetorically reshaping legal ideals. Symbolic structures created to demonstrate attention to law maintain their symbolic value but become substantively weak in the face of strong and well-institutionalized management prerogatives and business norms. As law in the workplace becomes managerialized, it loses its capacity to alter long-standing patterns of race- and gender-based privilege in the workplace.

CHAPTER SEVEN

The Mobilization of Symbolic Structures

T

his chapter examines the process by which symbolic structures come to be regarded as indicia of EEO compliance, not just within organizations and organizational fields but also within legal institutions and legal fields. I argue that as law becomes managerialized within organizations, people increasingly come to understand symbolic structures not just as means of achieving equal employment opportunity but also as indicia of compliance with EEO law, a process I refer to as the managerialization of legal consciousness. The widespread acceptance of symbolic structures as indicia of compliance with EEO law in turn affects whether and how aggrieved employees pursue legal redress, how plaintiffs’ lawyers frame legal complaints, and how management lawyers frame their defenses. As employees and plaintiffs’ lawyers mobilize their legal rights, management lawyers countermobilize symbolic structures, framing them as constituting compliance with EEO law. Plaintiffs’ lawyers too often fail to challenge this framing and thereby reinforce the association of symbolic structures with EEO compliance. As this association is increasingly taken for granted, all parties to litigation become less likely to question the effectiveness of organizations’ symbolic structures. Thus, even though litigation should in theory bring out deficiencies in organizations’ symbolic structures, it tends instead to strengthen their symbolic value and to obscure the potential of managerialization to undermine EEO law. Through the mobilization of legal claims, then, litigants and lawyers alike help to carry the managerialization of law from organizational fields into legal fields. I draw on several bodies of empirical scholarship to support my argu-

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ment. Studies of legal consciousness suggest a mechanism by which employees and managers alike tend to adopt managerialized conceptions of law. Experimental studies by social psychologists show how symbolic structures shape people’s thinking about fairness and their views about whether litigation is appropriate. Studies of rights mobilization support the argument that employees’ legal consciousness affects whether and how they mobilize their legal rights. And studies of plaintiffs’ and management lawyers document their role in importing the symbolism of organizational structures—as well as the managerialization of law generally—into the legal realm.

The Managerialization of Legal Consciousness I use the term legal consciousness to refer to the set of shared beliefs and ideas that both draw on and constitute the meaning of law.1 Numerous empirical studies of legal consciousness illustrate the interplay between how people experience the law, understand the law, and behave vis-à-vis the law. 2 Legal consciousness is relevant to the legal endogeneity process because it helps to explain how and why people come to accept managerialized concepts of law and compliance. Because the term legal consciousness has been used in many ways, I want to clarify two aspects of the way in which I use the term. First, although the literature on legal consciousness sometimes conceptualizes it as an individual characteristic, I treat legal consciousness as a collective phenomenon or as a set of shared ideas. There is, of course, individual variation in how people think about law and rights, and there are sometimes patterns of thinking that evolve among similarly situated groups of individuals such as women or minorities. Nonetheless, the importance of the concept is in its capacity to explain how ideas about law come to be widely shared and, in the language of neo-institutional sociology, become institutionalized, or taken for granted. 3 Second, although some scholars envision legal consciousness as encompassing rights mobilization (or the decision not to mobilize),4 I treat legal consciousness and rights mobilization as distinct, albeit interrelated, constructs. Legal consciousness and rights mobilization are, of course, highly interwoven: how people understand law and rights shapes whether and how they mobilize their legal rights, and, conversely, the mobilization of law shapes how people think about law and rights. None-

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theless, for the purpose of explaining the relationship between the managerialization of legal consciousness and how social actors mobilize EEO law, I fi nd it valuable to treat the two constructs as analytically distinct but empirically intertwined. 5 In the context of EEO law, I defi ne the managerialization of legal consciousness as the process through which people increasingly understand EEO law in managerialized terms and understand the presence of organizations’ symbolic structures as constituting compliance with EEO law. As legal consciousness becomes managerialized, people increasingly understand the presence of symbolic structures not simply as tools designed to achieve legal compliance but rather as the achievement of legal ideals. Conversely, the absence of symbolic structures becomes suspect and may be taken as evidence of discrimination. The capacity of symbolic structures to protect the civil rights of women and minorities becomes such a widely held “rationalized myth”6 that people no longer subject the myth to empirical scrutiny. As a result, the mere presence of symbolic structures helps to mask sex- or race-based pay differentials, the underrepresentation of women and minorities in managerial and professional positions, subjective decision making that tends to favor white males, and subtle pressures on minorities to perform whiteness and women to both perform maleness and yet remain sufficiently feminine. Legal consciousness as a collective construct is difficult to measure in general, and the managerialization of legal consciousness is particularly hard to grasp through empirical methods. But experiments in social psychology that examine how organizational diversity structures affect individual perceptions of organizational fairness provide insight into the managerialization of legal consciousness. To the extent that perceptions reflect a connection between organizations’ symbolic structures and fair treatment, these studies suggest that there are shared notions about the value of these structures for achieving civil rights. Social psychologists Cheryl Kaiser and Brenda Major have, along with various colleagues, designed a series of experiments to test the effects of organizational diversity structures on whether people perceive an organization to be discriminatory or not.7 The diversity structures they examined included various types of symbolic structures: diversity policies, diversity training, affi rmative action programs, and awardwinning diversity efforts.8 Building on studies of procedural justice, which show that people generally believe authority to be legitimate when

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procedures are fair and pay more attention to the fairness of procedures than to outcomes,9 Kaiser and Major (drawing on my earlier work10) posited that diversity structures create an illusion of fairness that leads individuals (and high-status individuals in particular) to overlook unequal treatment. They tested the hypothesis that diversity structures lead people to believe that an organization is fair even in the face of clear evidence that the organization treats employees differently on the basis of their sex or race. Focusing fi rst on white males, Kaiser and Major found that diversity structures led to an illusion of fairness concerning the treatment of underrepresented groups, even when presented with evidence that lower-status groups were unfairly disadvantaged within the organization. White male participants were significantly more likely to believe that a company was procedurally fair when they read its diversity statement than when they read a mission statement that did not include a commitment to diversity. The presence of a diversity statement led participants to believe that the company was fair even when participants were given information showing that promotion rates were much higher for white employees than for minority employees. Similarly, participants were more likely to believe that an organization was fair when it had a diversity training program designed to foster success among women, even when they were told that the organization hired men at substantially higher rates than equally qualified women. Subsequent experiments showed that diversity structures also created an illusion of fairness among Latino and female participants. For these groups, the experimenters also examined whether “status-justifying beliefs,” or the belief that hard work pays off and that status differences are justified, mediates the effect of diversity structures on illusions of fairness.11 For Latino participants who generally believed that hard work pays off and that status differences are justified, diversity structures did lead to an illusion of fairness. Latinos who were more aware of societal obstacles to upward mobility, however, were not affected by the presence of diversity structures. Among women, the presence of a diversity structure increased perceptions of organizational fairness irrespective of status-justifying beliefs.12 To show that their fi ndings had implications outside of the laboratory, Kaiser and Major replicated their study using a sample of organizational managers. Managers were asked to list either the diversity structures or the structures related to environmental sustainability at their own orga-

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nizations. Managers were then asked to review claims of race discrimination that had been fi led with the EEOC by African American employees who were denied advancement opportunities. Managers who had been asked to focus on diversity structures ranked the race discrimination claims as less legitimate than did participants who were asked to focus on environmental structures. Thus, the presence of diversity structures led managers to view organizations as less discriminatory and to be more skeptical of discrimination claims.13 These experiments show that the presence of symbolic structures in organizations causes most people to view organizations as fair, irrespective of actual injustices, inequalities, and discrimination. Further, these experiments explain how people can come to view organizations with symbolic structures as compliant with EEO law even when managerialization processes render those structures merely symbolic. Kaiser and Major also showed that procedural justice is the mechanism by which diversity structures reduce the appearance of discrimination. In other words, diversity structures increase the appearance of procedural justice, which legitimizes existing social arrangements within the organization.14 Although the experiments focused on individual perceptions of fairness, a managerialized legal consciousness in which people associate symbolic structures with organizational fairness and a lack of discrimination provides an explanation for their fi ndings: the greater the managerialization of legal consciousness, the more likely it is that people will perceive organizations with diversity structures to be fair. In the remainder of this chapter, I show how the managerialization of legal consciousness, in turn, affects whether and how participants in the legal process frame their claims and the relevance of symbolic structures. Through the framing of claims and the mobilization of symbolic structures as defenses to those claims, managerialized notions of law that originate in organizational fields begin to infi ltrate the public legal order, including— eventually—the thinking and behavior of judges.

How Managerialized Legal Consciousness Affects Rights Mobilization EEO law depends on ordinary citizens who experience discrimination to mobilize the law by taking action to invoke their legal rights.15 With some exceptions, such as the small number of pattern or practice law-

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suits brought by the EEOC, EEO law is enforced through a private right of action. Thus enforcement takes place primarily when aggrieved individuals fi le complaints through the appropriate legal channels. Title VII specifies that individuals who believe that their civil rights have been violated must fi rst fi le a claim with the EEOC or with the equivalent state fair employment commission. The EEOC must investigate the charge, determine whether there is reasonable cause, and, if there is, attempt conciliation. If conciliation is unsuccessful, the EEOC may pursue litigation on its own, but it rarely does. If, as is usually the case, the EEOC chooses not to litigate, it issues a right-to-sue letter to the complainant, which gives the complainant the option of pursuing the claim through litigation. Individuals must then seek legal counsel and initiate litigation if they wish to pursue redress of rights violations. Very few employees who believe that they have suffered discrimination choose to pursue their claims by fi ling a complaint with the EEOC or equivalent state agency, and even fewer pursue litigation. The Reluctance to Claim In 1980, the landmark Civil Litigation Research Project (CLRP) reconceptualized disputing as a social process through which disputes emerge but generally fall out of the legal order because of attrition, resulting in a “dispute pyramid.”16 Instead of examining only complaints that made it to court, the CLRP surveyed households about experiences with potential legal problems to learn how people think about complaints and potential legal redress. The CLRP found that people with potential legal injuries did not always think of them as legal claims. Of those who did recognize a rights violation, many never attributed blame to a potentially responsible legal party, and an even smaller number ever confronted the responsible party to request redress.17 For those who did request redress, some disputes were resolved, many were abandoned, and a small percentage secured legal counsel and began the litigation process. Most claims that entered the litigation process fell out, some due to settlement and some because of the expense, time, and emotional challenges posed by litigation. CLRP researchers found that only about 5 percent of all potential claims proceeded to trial (the apex of the pyramid). For employment discrimination victims, the attrition was even more severe: less than 1 percent of perceived instances of employment discrimination eventually

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proceeded to trial.18 Subsequent studies, using both quantitative and qualitative methods, have also documented the extreme reluctance of employees who believe that they are victims of discrimination to mobilize their legal rights.19 One study found that even if one begins at the point of federal case fi lings, a point at which the great majority of claims have already fallen out of the system, only about 6 percent of cases survive to the trial stage, and only about 2 percent result in a plaintiff victory at trial. 20 Barriers to Rights Mobilization There are many reasons for a lack of mobilization among employees who believe that they have suffered discrimination. There are psychological factors such as fear of retaliation, fear of not being believed, fear of being viewed negatively by peers, resistance to adopting a victim identity, and the desire to feel resilient in the face of a difficult situation. 21 There are structural factors such as the cost of litigation and difficulty of fi nding a lawyer. Societal norms also affect mobilization. Employees often decide not to mobilize their rights because they believe that doing so would be inconsistent with their roles as good workers, friends, or spouses, or parents. 22 Employees avoid mobilizing their rights because they want to fit in at the workplace; to maintain the sense of being a survivor or a member of the community; and to avoid being considered a victim, a loser, a complainer, or a shirker. 23 Those who see themselves as victims of sexual harassment sometimes resist rights mobilization because they believe that to be accepted in the workplace, they must accept a certain amount of sexualized commentary. 24 Employees may choose to mobilize their rights through quasilegal or extralegal means either instead of or in combination with legal mobilization. The legalization of the workplace in some cases facilitates mobilization by raising employees’ awareness of their legal rights, encouraging workers to engage in “rights talk” in which grievances are conceptualized and verbalized in terms of rights, and lending legitimacy to civil rights grievances. But most employees who believe that their rights have been violated do nothing, or engage in extralegal actions such as talking to friends, relatives, or clergy, or praying. 25 Rather than a dispute pyramid, the disputing process is less like a pyramid with a single apex (trial) and more like a tree in which the many branches represent the multiple options, both within and outside of the legal order, through which griev-

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ances may be pursued. 26 The presence of knowledgeable compliance professionals can, and sometimes does, facilitate complaints of rights violations. Employers create internal dispute resolution mechanisms to divert claims from the formal legal order, 27 although employees are often reluctant to use internal complaint procedures because they fear retaliation or believe that using an in-house procedure would be futile. 28 Symbolic Structures, Managerialized Legal Consciousness, and Rights Mobilization The managerialization of legal consciousness tends to reduce rights mobilization by leading employees to believe that organizations with symbolic structures in place are fair and nondiscriminatory, even in the face of evidence of discrimination or harassment. In addition to examining the impact of diversity structures on assessments of organizational fairness, Kaiser and Major used hypothetical scenarios to examine the effects of diversity structures on rights mobilization. 29 When participants were presented with clear evidence that employers had engaged in sex discrimination but were also told that organizations had diversity structures in place, they were significantly less likely to believe that the victims of that discrimination should sue their employers. This fi nding held for female30 as well as for white male study participants. 31 Although these results are based on hypothetical scenarios, other research suggests that the results might be even stronger in real employment settings. 32 A managerialized legal consciousness also depresses rights mobilization because employees accept the rhetorical reframing of legal constructs and, therefore, see their complaints as beyond the bounds of law. For example, in chapter 6, I described Anna-Maria Marshall’s study, 33 which showed how managers at a university reframed sexual harassment to constitute only the most egregious and severe behaviors, treating other behaviors (including sexual commentary, crude remarks, and even requests for sex) as poor management but not as sexual harassment. Marshall’s study also showed that when managers frame allegations of discrimination or harassment as evidence of poor management rather than as rights violations, employees tend to view rights mobilization as futile or to incorporate the managerialized understandings of law and rights into their own assessments and therefore to see rights mobilization as inappropriate. Marshall described one instance in which an

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employee whose manager repeatedly asked her to have sex with him reported that perhaps his behavior did not constitute illegal harassment. Accepting the frame of her supervisor, who told her that it would be difficult to prove that the advances had occurred and that they were unwelcome, she chose not to pursue a claim. 34 Similarly, in an analysis of sexual harassment involving “humor,” Beth Quinn showed that although sexualized jokes frequently make women uncomfortable and might constitute sexual harassment if challenged in court, female employees reported that to be taken seriously in the workplace, they had to tolerate these behaviors. 35 How Depressed Rights Mobilization Reinforces the Managerialization of Law The available empirical studies, then, suggest that employees are less likely to mobilize the law to achieve redress of perceived rights violations when an organization has symbolic structures in place and when managers have rhetorically reframed potential rights violations as instances of poor management or as simply part of the work culture. Depressed rights mobilization, in turn, reinforces a managerialized legal consciousness by making symbolic structures appear effective. Yet that appearance of effectiveness is deceptive when symbolic structures inhibit rights mobilization rather than discrimination itself. It is in this sense that a managerialized legal consciousness, symbolic structures, and rights mobilization are empirically intertwined and, together, tend to undermine employees’ civil rights.

Symbolic Structures and the Role of Lawyers In the relatively rare circumstances that employees do mobilize their rights through the formal legal process, lawyers help to frame the meaning of law and the salience of symbolic structures. In this section, I argue that plaintiffs’ lawyers (who represent employees) and management lawyers (who represent employers) both play important roles in importing a managerialized legal consciousness—and in particular the notion that symbolic structures constitute compliance with EEO law—into the public legal realm.

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Plaintiffs’ Lawyers and Symbolic Structures Plaintiffs’ lawyers serve as gatekeepers to the legal system in that they can encourage or discourage potential clients who seek advice about perceived rights violations. One might expect plaintiffs’ lawyers to challenge the efficacy of symbolic structures that do little to protect employees’ rights and to point out the ways in which managerialization— especially the decoupling of symbolic structures from organizational practices—serves to mask discrimination. But either because of a managerialized legal consciousness or because plaintiffs’ lawyers are anticipating the judicial response, they often believe that cases look less promising precisely because an employer has created symbolic structures that appear to comply with EEO law. Too frequently, plaintiffs’ lawyers discourage potential clients from pursuing claims because the presence of symbolic structures makes their cases appear weak. Susan Bisom-Rapp conducted a survey of members of the National Employment Lawyers Association (NELA), an association of lawyers who generally represent plaintiffs in employment discrimination cases. 36 She found that when employers had created the types of documentation recommended by management lawyers, plaintiffs’ lawyers tended to view an employee’s chance of winning a lawsuit as low. When employees sought legal representation for perceived discrimination but the employer had created a paper trail showing progressive discipline or had already interviewed witnesses so that they were unlikely to testify against the employer, plaintiffs’ lawyers often informed potential litigants that the case was unlikely to succeed in litigation. Similarly, when employers had created policies banning discrimination, EEO grievance procedures, or other symbolic structures, plaintiffs’ lawyers often discouraged employees from fi ling suit. To the extent that plaintiffs’ lawyers discourage cases on the basis of symbolic indicia of fair governance even when employers’ actual practices violate employees’ civil rights, managerialized compliance goes unchecked. When plaintiffs’ lawyers agree to represent employees, moreover, too few plaintiffs’ lawyers challenge the efficacy of employers’ symbolic structures during the litigation process. To some extent, plaintiffs’ lawyers lack access to what is going on behind the scenes in organizations. They may not know whether a culture of discrimination exists despite formal policies that prohibit it or whether employees are informally discouraged from using a grievance procedure. Further, it is difficult to

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prove that an organization has an informal culture that encourages discrimination. Evidence regarding organizational culture is most often qualitative in nature, and as was illustrated by the US Supreme Court in the 2011 Wal-Mart litigation, courts are reluctant to accept testimony from expert witnesses based on analyses of qualitative data. 37 Courts are also reluctant to accept testimony regarding implicit biases that may underlie discriminatory organizational cultures. 38 Nonetheless, plaintiffs’ lawyers are influenced by the appearance of legality and thus frequently fail to question whether symbolic structures are substantively effective or mere window- dressing. Management Lawyers and Symbolic Structures Management lawyers mobilize symbolic structures as evidence of nondiscrimination to strengthen their clients’ cases, both during litigation and also long before lawsuits materialize. As “repeat players”39 in the legal system, employers and their legal advisers have the capacity to make changes to improve their position in anticipation of legal action. BisomRapp, who also studied management lawyers, found that these lawyers advise employers to “bulletproof the workplace” in anticipation of lawsuits and to create “beneficial evidence” designed to demonstrate a lack of intent to discriminate if and when a lawsuit occurs.40 Bulletproofi ng is not about making the changes that would be necessary to avoid discrimination; rather it is about the symbolic performance of nondiscrimination. In some cases, bulletproofi ng even involves the retroactive revision of documents to mask evidence that might have indicated discrimination or intent to discriminate. Specifically, Bisom-Rapp found that management lawyers advised employers to document lawful reasons for termination or discipline in performance evaluations (a “performance deficiency list”)41 prior to taking any action; to “sanitize”42 personnel fi les to eliminate unnecessary references to sex, race, or other protected categories; to exercise care in what they say to employees (avoiding use of protected categories); to adopt uniform language in performance evaluations and also in job interview questions as a way of demonstrating a lack of discrimination; to offer the employee an opportunity to raise objections to evaluations (demonstrating due process); and to be careful about the timing of disciplinary action to avoid the appearance of retaliation.43 In fact, employers are advised to consult an attorney prior to taking any disciplinary action to ensure that

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all necessary steps to demonstrate a lack of intent to discriminate have been taken. In such cases, the employer is often encouraged to interview potential witnesses in advance to ensure corroboration between witness testimony and documentary evidence. Bisom-Rapp also discussed management lawyers’ advocacy of antidiscrimination policies and grievance procedures as well as diversity training programs.44 My own review of management lawyers’ webinars and other materials (discussed in chapter 4) shows that management attorneys continue to advise employers to sanitize their personnel fi les and to proactively create a record that will obscure discrimination. Management lawyers, then, mobilize symbolic structures by advising employers to create those structures proactively and by invoking those structures in defending employers against allegations of discrimination. Although management lawyers are engaging in good advocacy by recommending these strategies, their role is striking in that they appear to be more concerned with impression management than with eliminating discrimination. Management lawyers are insufficiently concerned with offering advice on how to restructure job opportunities in ways that would bring more women and minorities into management or higherskilled positions, how to avoid implicit biases in subjective decisions and evaluations, or how to discover and correct expectations that put higher burdens on minorities than whites, and on women than men, to engage in or to avoid particular behaviors or patterns of association. Rather, the concern is primarily with making sure that employers erase the markers of discrimination and create markers of nondiscrimination—including symbolic structures—so that in the event of a lawsuit, they have ready evidence to rebut the claim. To be sure, some of the formal policies that management attorneys recommend may result in a reduction of discrimination. Formal policies banning discrimination, due process rights, formalization of personnel policies generally, restrictions on language in interviews or evaluations, and various other diversity structures sometimes help to educate managers or to constrain arbitrariness in ways that protect employees’ civil rights. Structures that vest authority and responsibility in particular managers are especially likely to be effective.45 But in many organizations, these structures do little more than protect employers from liability. And in some cases, the structures may even perpetuate harmful stereotypes. For example, diversity training programs, now a booming business, turn out to be highly ineffective and sometimes even harmful

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to minorities and women, in part because they fail to instill responsibility within the organizational hierarchy,46 they generate backlash among majority employees who resent having to sit through them,47 or they treat race and sex as no more relevant than diversity on the basis of taste in sports or dress style.48 Diversity training may even inadvertently perpetuate sex- and race-based stereotypes.49 Ironically, because bulletproofed employment decisions allow employers to avoid traditional markers of discrimination, employers may be able to engage in greater discrimination without triggering action by employees or concern among regulators or the general public. In essence, management lawyers are often teaching employers and HR professionals to perform, rather than to achieve, racial and gender diversity. When employees do mobilize their legal rights in the form of EEOC complaints or lawsuits, management lawyers countermobilize the symbolic structures that they have advised employers to create. In disparate treatment cases, management lawyers invoke symbolic structures as indicia of rational organizational governance, often arguing that employers’ decisions were made in accordance with normal evaluation, disciplinary, or decision-making procedures. In discrimination cases generally, management lawyers mobilize antidiscrimination and diversity policies, programs, and procedures to demonstrate compliance with EEO law. In racial or sexual harassment cases in particular, management lawyers mobilize symbolic structures as evidence of good faith efforts to prevent harassment. Management lawyers are acting in their clients’ best interests in calling the court’s attention to symbolic structures, but at the same time they are helping to legitimize and rationalize structures that are often ineffective at protecting the civil rights of women and minorities. Management lawyers began to make these arguments long before courts formally proclaimed the relevance of these structures. Yet when the Supreme Court fi rst hinted, in the Meritor v. Vinson decision in 1986, 50 that an antiharassment policy and grievance procedure might help to protect an employer from liability in hostile work environment harassment cases, management lawyers quickly stepped up their mobilization of these structures in all EEO cases. Figure 7.1, which is based on an analysis of all cases alleging sex or race discrimination or harassment under Title VII between 1974 and 1997, shows the number of Title VII opinions in which grievance procedures were invoked in connection with employers’ defenses. 51 As shown in figure 7.1, the number of cases in which grievance proce-

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166 120

Number of opinions

100

80

60

40

20

0

Before 4LYP[VY (1974–1986)

After 4LYP[VY (1986–1997)

Figure 7.1. Title VII opinions invoking grievance procedure defense before and after Meritor. Source: Adapted from Edelman, Uggen, and Erlanger, “Endogeneity of Legal Regulation,” 439, table 8.

dures were invoked as a defense to discrimination skyrocketed after the 1986 Meritor decision even though the Supreme Court did not formally recognize the validity of the grievance procedure defense until the 1998 Faragher 52 and Ellerth 53 opinions, and then only in the context of hostile work environment harassment cases. As I will show in chapter 8, the mobilization of symbolic structures by management lawyers, in turn, helps to shape judicial understandings of compliance with EEO law.

Symbolic Structures and the Managerialization of Legal Fields This chapter has shown how managerialized legal consciousness affects the mobilization (and countermobilization) of symbolic structures by employees, plaintiffs’ lawyers, and management lawyers. As legal consciousness becomes managerialized, organizational and legal actors alike tend to view symbolic structures as the realization of civil rights, overlooking instances in which—because of managerialization—symbolic structures fail to achieve those rights. The idea that organizations with

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symbolic structures are in compliance with EEO law becomes so widely accepted that evidence to the contrary often goes unnoticed. Managerialized legal consciousness, together with other barriers to mobilization, inhibits many employees from pursuing their claims through both formal legal channels and internal grievance procedures. Plaintiffs’ lawyers tend to view symbolic structures as barriers to successful litigation and thus discourage employees from pursuing their legal rights where these structures exist. Management lawyers proactively create symbolic structures for evidentiary purposes and then mobilize those structures in defending employers, but they are often more concerned with the symbolic value of these structures than with ensuring that employers make their workplaces nondiscriminatory. Thus each of these actors plays a role in mobilizing symbolic structures as the actualization of equal employment opportunity and, concomitantly, palliating the managerialization of law. The courtroom becomes, in a sense, the last stage at which ineffective symbolic structures might be recognized and the cycle of endogeneity might be interrupted. But as I show in the next chapter, judges are also subject to managerialized understandings of EEO law.

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his chapter closes the legal endogeneity cycle by showing how managerialized conceptions of law that evolve within organizational fields influence formal legal rules. Law becomes endogenous when official legal bodies like courts, legislatures, and administrative agencies defer to organizations’ symbolic compliance structures, thus condoning managerialized conceptions of law and compliance. By deference, I mean that legal bodies accept uncritically the symbolic structures that organizations have created without carefully scrutinizing their effectiveness. I focus in particular on judicial deference to symbolic structures but also show how the EEOC has deferred to these symbolic structures. First, I draw on content analyses of a representative sample of federal EEO opinions from 1965 to 1999, which I collected as part of a collaborative project with Linda Krieger, as well as on a follow-up representative sample of opinions from 2004, 2009, and 2014,1 to show that over time judges have become increasingly likely to defer to organizations’ symbolic structures, equating these structures with EEO compliance without evaluating whether they actually protect employees’ civil rights. Second, I discuss the US Supreme Court’s formal endorsement of judicial deference to symbolic structures in hostile work environment sexual harassment cases in the 1998 Faragher and Ellerth 2 opinions. I show that this occurred well after judicial deference to organizations’ symbolic structures had become common in the federal district and circuit courts, and I examine the role of organized interests representing employers and compliance professionals, as well as the EEOC, in shaping those Supreme Court decisions. Finally, through a content analysis of EEOC guidelines

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from 1964 to 2014, 3 I show that the EEOC did not invent the idea that symbolic structures should insulate employers from liability, but rather was itself influenced by the widespread acceptance of that idea among organizations. Thus, this chapter completes the story of legal endogeneity by demonstrating how the meaning of compliance with EEO law that originated in organizational fields gradually seeped into the lower federal courts, was subsequently endorsed by the EEOC, and eventually— thirty-four years after the passage of Title VII—was formally condoned, in the sexual harassment context, by the US Supreme Court.

Judicial Decision Making The legitimacy of the judiciary is premised in general on the impartiality of judges and the judicial process, and in particular on the idea that judges apply the law to the facts of the cases before them, unswayed by political, economic, or social interests. Yet we know from decades of research, mostly by political scientists, that judicial reasoning is, in reality, affected by judges’ political views and attitudes, by strategic considerations, and by historical and cultural factors. Attitudinal theorists emphasize the impact of judges’ ideological values on judicial decision making and point out that partisan decision making is especially likely where law is ambiguous.4 Individual judges’ political views tend to be moderated when they serve on a panel with judges who have different views and exacerbated when they serve on a panel of judges with similar views. 5 Strategic choice scholars qualify the attitudinal model by arguing that judges take into account the preferences of their colleagues, elected officials, and the public, in part to minimize the likelihood that their decisions will be overturned. Because Congress and higher- court judges could reverse their decisions, judges can strategically further their preferences by taking those views into account.6 Historical institutionalists employ a more interpretive approach that focuses on the contexts, traditions, norms, and cognitive structures that help to constitute judicial preferences and behaviors.7 Other perspectives take a stronger stand, arguing that judges are essentially policymakers8 or even politicians in robes.9 Politics and strategic considerations, however, are not the only influences on judicial decision making. I show in this chapter that judges are also affected by notions of compliance that become widely accepted

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in the business community. When managerialized ideas about compliance with civil rights law become widely accepted within organizations and across business sectors, those ideas seep into the judicial realm as well. When organizational constructions of compliance enter the judicial realm, law becomes endogenous or influenced by the social fields that it seeks to regulate.

How Judges Are Influenced by Managerialized Law Judges are exposed to the same ideas about symbolic structures as are other members of society. Many judges, moreover, have served in leadership roles within organizations or have previously been lawyers who represented large organizational clients, and some may have been involved in writing or vetting the organizational policies that have come to symbolize compliance with civil rights law. Thus, in many ways it is not surprising that judges—just like employers, employees, compliance professionals, and lawyers—come to equate the symbolic structures that organizations create in response to civil rights law with the achievement of civil rights in organizations. The more symbolic structures become widely accepted as symbols of rational governance and attention to law, the more judges tend to infer compliance from the mere presence of these structures. Symbolic Structures and Judicial Reasoning Research by social psychologists has shown that judges employ two types of reasoning. The fi rst type is intuitive, quick, and based on heuristics, whereas the second is deliberative, slower, and based on rules.10 The fi rst type facilitates fast decisions but is subject to error; the second is more accurate but requires more time, effort, and motivation. Judges are predominantly intuitive decision makers.11 Especially in the context of the fi rst type of decision making, symbolic structures provide a heuristic for judges, facilitating the intuitive assessment that there is no discriminatory behavior. The social-psychological studies that I discussed in chapter 7 suggest that the mere presence of symbolic structures causes people to overlook evidence of discrimination or inequality, including evidence that organizational practices deviate from antidiscrimination policies, that organizations have cultures

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that promote bias or harassment, or that internal dispute resolution processes are unfair. Participants in these studies were more likely to believe that organizations were fair even when they were presented with evidence of discrimination against women or minorities. White male participants were especially likely to believe that diversity structures indicated fairness.12 Similar studies have not yet been conducted on judges, and it may be that judges are more able than those without judicial experience to avoid the “illusion of fairness”13 that arises from the presence of diversity structures. Since judges are disproportionately high-status white males, however, it is likely that judges are susceptible to the illusion of fairness that these structures create. The presence of symbolic structures may also have an “anchoring effect,”14 so that once judges know that these structures are in place, they become more likely to form an initial assessment that organizations are complying with civil rights law and to give less weight to subsequent evidence, even if that evidence shows that the structures are ineffective. Judges tend to assume that nondiscrimination is the norm among rational employers and, conversely, that discrimination is an aberrant condition that exists only when employers or managers do something wrong, unprofessional, or irrational.15 Symbolic structures, then, likely work in concert with the stray remarks, honest beliefs, and same actor heuristics, discussed in chapter 3, that lead judges to dispose of civil rights cases quickly. Further, because judges have become less likely over time to infer discrimination from demonstrated inequality,16 the apparent legality of organizations’ symbolic structures plays into the judicial tendency to assume that discrimination is an aberrant condition and to overlook evidence that might suggest discrimination. Symbolic structures are seen as evidence of rational governance and a rational response to civil rights law, so their presence supports an inference of nondiscrimination. As I show in the next section, moreover, both management lawyers and plaintiffs’ lawyers contribute to the heuristic value of symbolic structures, making it more likely that judges will infer nondiscrimination from the mere presence of these structures rather than engage in careful scrutiny of their effectiveness. The Influence of Lawyers As I discussed in chapter 7, management lawyers help to create and to reinforce assumptions about the fairness and rationality of symbolic

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structures both when they point to their clients’ symbolic structures as evidence of good faith and an absence of intent to discriminate, and also when they cite judicial precedent that legitimates those structures. The more management lawyers rely on symbolic structures as evidence of compliance, the more judges are exposed to the idea that these structures advance civil rights values. Conversely, when plaintiffs’ lawyers challenge the effectiveness of symbolic structures, one would expect judges to become skeptical about the effectiveness of these structures, or at least become more aware these structures may not protect employees’ civil rights in all organizations. But plaintiffs’ lawyers too rarely challenge the effectiveness of symbolic structures, both because they also tend to accept the symbolic value of those structures and because they know that judges are likely to rule against them when symbolic structures are in place. Thus, plaintiffs’ lawyers may, largely inadvertently, further legal endogeneity by discouraging employees from pursuing litigation even when managerialization has rendered organizational structures ineffective. Even when plaintiffs’ lawyers do challenge ineffective structures and judges are skeptical of these structures, managerialization (discussed in chapter 6) is difficult to detect in a courtroom. Plaintiffs’ lawyers (and hence judges) are generally unaware of the extent to which organizations decouple their practices from formal structures that appear to protect employees from discrimination. Even when plaintiffs’ lawyers suspect that fi rms’ practices diverge from their formal policies, moreover, decoupling can be very difficult to prove because the discrimination that occurs through subjective decision making or on-the-ground practices of lower-level supervisors is far less visible than the formal policies themselves. Similarly, the subtle ways in which internal complaint handlers discourage complaints, favor supervisors, or handle complaints in ways that undermine employees’ legal rights are far less visible to judges than the fact that the organization has a grievance procedure. Diversity training programs and diversity officers make organizations look responsible, but judges are unlikely to be aware of the way in which diversity rhetoric subtly shifts the focus from race and gender equality to differences across a wide variety of dimensions or of research showing that these programs are often ineffective. And, of course, judges do not see those disputes in which organizations manage to avoid litigation through mandatory arbitration or through the use of contractual language that manages away legal rights.

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How Does Legal Endogeneity Manifest in Judicial Decisions? As I noted in chapter 2, there are three progressive stages of legal endogeneity: reference, relevance, and deference.17 Managerialized notions of compliance enter into the judicial realm primarily as management lawyers invoke symbolic structures to explain how the employers they represent are complying with civil rights law. Reference, a relatively low level of legal endogeneity, can be observed in judicial opinions when judges simply refer to symbolic structures. Relevance, an intermediate level of endogeneity, can be observed in judicial opinions when judges explicitly link symbolic structures to the legal issue of discrimination. At the relevance stage, judges think of symbolic structures as potentially indicative of nondiscrimination but still review the adequacy of those structures before conclusively drawing a link between those structures and discrimination. Deference, which involves a high level of legal endogeneity, can be observed in judicial opinions when judges appear to infer nondiscrimination from the mere presence of these structures, either without considering their adequacy at all or in spite of recognized inadequacies. When judges fail to scrutinize symbolic structures, they may condone antidiscrimination policies that are ignored in practice, grievance procedures that employees are afraid to use, progressive discipline policies that are applied differently based on sex or race, or subjective evaluations of employees’ qualifications that favor white males over minorities or women. When judges defer to symbolic structures, it means that they have failed to engage in adequate scrutiny of these structures. Adequate scrutiny would mean that judges look beyond the mere existence of a structure and take seriously evidence that may suggest that a structure operates in a discriminatory manner or coexists with discriminatory practices. For example, judges would need to take seriously evidence that harassment was common in the workplace rather than inferring nondiscrimination from the mere presence of an antiharassment procedure. Similarly, judges would need to take seriously evidence that employees were discouraged from exercising their right to complain rather than drawing inferences from the mere presence of a grievance procedure. Of course, plaintiffs’ attorneys have the responsibility to present evidence showing that symbolic structures are ineffective. But when plaintiffs’ attorneys do so, judges defer to symbolic structures when they

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either ignore or fail to take seriously evidence that suggests that organizational structures are not adequately protecting employees’ legal rights. Not all instances of judicial deference are observable from judicial opinions. For example, a judge may write that a structure adequately protects employees’ legal rights even when the structure is in reality ineffective. In most such cases, an analysis of the opinion would suggest that no deference occurred since the deference is, in effect, impossible to detect. The more overt forms of judicial deference, however, can be observed. Of these, the most common type of deference occurs when the opinion simply mentions the structure but reflects no consideration of the quality or adequacy of the organizational structure. A less common type of deference occurs when the opinion explicitly says that a structure is inadequate but that even an inadequate structure constitutes compliance. A third type of deference occurs when the opinion states that the structure is adequate but also includes a discussion of factors that clearly indicate that the structure operated in a discriminatory fashion. Below I provide an example of each of these three types of judicial deference to symbolic structures.18 No Attention to Adequacy: Grubb v. W. A. Foote Memorial Hospital, Inc. (1984) In the fi rst form of deference, judges do not consider adequacy at all. Rather, they infer nondiscrimination from the mere presence of symbolic structures without scrutinizing their adequacy. For example, Grubb v. W. A. Foote Memorial Hospital, Inc.19 was a 1984 case decided by the Sixth Circuit Court of Appeals. It involved two organizational structures: a grievance procedure and a reduction in force (RIF). Charles Grubb, a black male, began as a laundry worker at Mercy Hospital in 1957. During subsequent years, he was promoted to laundry manager, received positive evaluations, took courses in management, and was certified as proficient by the American Institute of Laundry. Beginning in 1964, he was assisted by a laundry supervisor, Rosella Fountain, a white woman who was two years older than Grubb. In 1975 Mercy Hospital was purchased by Foote Memorial Hospital and the two laundry facilities were consolidated. Willard Carl, aged 34 or 35, the director of the laundry at Foote Memorial, became Grubb’s supervisor. The case involved multiple instances of race and age discrimination. Accord-

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ing to the testimony at trial, Carl had Fountain report to him rather than to Grubb, stating, “[N]o black guy should be a boss over white women.”20 Carl ordered Grubb to fi re three minority laundry workers (two black and one Hispanic), and when Grubb did not follow that instruction, Carl asked him, “When are you going to fi re those niggers?” 21 When Grubb reached aged 61, Carl suggested that it was time for Grubb to retire. Shortly thereafter, Grubb’s position was eliminated, allegedly due to a RIF, but Fountain was retained and no other positions were eliminated. When Grubb went to the personnel director to complain, he was told that there was a grievance policy but that pursuing his grievance would be of “no use.”22 Grubb sued for age and race discrimination. The district court ruled in favor of Grubb on race discrimination, fi nding that the RIF, in which Grubb was the only employee terminated, was pretext for discrimination. The circuit court overturned the district court’s fi nding of race discrimination, in part because Grubb had not used the grievance procedure to complain about his termination. The circuit court deferred to the mere presence of the grievance procedure by failing to consider the fact that the personnel director had told Grubb that it would be of no use to use that procedure. The circuit court also reversed the district court’s ruling that the RIF was a pretext for race discrimination, without considering the evidence of racial slurs or the fact that Grubb was the sole employee targeted by the RIF. Thus, this case illustrates the most common type of deference, in which a court fails to evaluate the adequacy of symbolic structures. 23 Inadequate Structures as Legally Suffi cient: Leopold v. Baccarat, Inc. (2000) The second type of deference occurs when the judge states that the structure is inadequate but also that even an inadequate structure constitutes compliance. For example, consider Leopold v. Baccarat, Inc., 24 decided by the US District Court for the Southern District of New York in 2000. Like many sexual harassment cases after 1998, this case involved two organizational structures: a policy prohibiting sexual harassment and a grievance procedure. As discussed in chapter 3, the 1998 Faragher and Ellerth decisions created an affi rmative defense to sexual harassment when an employer takes reasonable care to prevent and correct

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any harassment and the plaintiff fails to take advantage of those opportunities. Since 1998, the Faragher-Ellerth affi rmative defense has come to be equated with the presence of an antiharassment policy and a grievance procedure, 25 and courts frequently engage in deference by failing to evaluate whether the antiharassment policies and grievance procedures were fair or effective. In this 2000 case, Andree Leopold worked for Baccarat, a fi ne china and crystal manufacturer, as a saleswoman in its New York retail showroom. She alleged that her workplace “was permeated with a discriminatorily hostile and abusive environment of sexual harassment,” and that the employer not only tolerated but also encouraged that environment.26 She alleged that her supervisor, Jonathan Watts, threatened on a regular basis to replace her with someone “young and sexy,” that he used vulgar language, and that he referred to the saleswomen as “nothing but a bunch of pussies.” 27 Leopold sued, alleging hostile work environment harassment. The employer invoked the Faragher-Ellerth affi rmative defense, pointing to its policy against harassment and accompanying grievance procedure as evidence that it had taken reasonable care to prevent the harassment and that Leopold had failed to take advantage of the company grievance procedure. Leopold argued that she and other employees did not use the procedure due to fear of retaliation. She also pointed out that, in violation of EEOC guidelines, the procedure would have required her to report the harassment to her immediate supervisor, who was the alleged harasser, and that the policy lacked a guarantee that employees who used it would be protected from retaliation. Leopold’s attorney explicitly argued that merely having an antiharassment policy and grievance procedure should not protect the employer from liability where the policy was sufficiently flawed to be ineffective. Nonetheless, the court dismissed the EEOC guidelines as nonbinding and, although recognizing that the policy was inadequate, ruled in favor of the employer, stating: “The law is very clear that any reasonable policy will do.” 28 Mere Lip Service to Adequacy: Lacy v. Ameritech Mobile Communications, Inc. (1998) In the third type of deference, the judge discusses factors that clearly indicate that the structure operated in a discriminatory fashion but then

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concludes that the structure is adequate, in essence paying mere lip service to adequacy. Lacy v. Ameritech Mobile Communications, Inc. 29 was a 1998 case involving an appeal from an award of summary judgment to the employer, decided by the Seventh Circuit Court of Appeals. The structures involved were a performance evaluation and a RIF. Hearold Lacy was hired by Ameritech in 1990 as a customer service representative. After one year, Lacy received a poor performance evaluation because of tardiness, absences, and failure to provide adequate customer service. In 1992 Ameritech ranked its employees pursuant to a RIF. Of the 57 employees in his job category, Lacy placed third from the bottom. Lacy was terminated in 1992. Lacy fi led suit alleging race discrimination on the basis that Ameritech failed to explain why it fi red him but retained white employees with similarly unsatisfactory evaluations and lesser seniority. The district court granted summary judgment to the employer and Lacy appealed. The standard for summary judgment is that all facts must be interpreted in the light most favorable to the nonmoving party (Lacy) and that the facts are to be reviewed de novo (that is, without considering the conclusions of the lower court). Yet the circuit court failed to consider in its opinion why similarly situated white employees were not fi red and simply declared that the district court was correct. We conclude, as did the District Court, that Ameritech’s explanation for how it distinguished in 1992 between Lacy and other employees (including white employees) who received the same 1991 evaluation score was both legitimate and nondiscriminatory. Accordingly, Lacy’s contention that Ameritech failed to explain why he was fi red—as opposed to certain white employees—is without merit. 30

Although Lacy hardly seemed like an ideal employee, he did raise examples of similarly situated white employees being treated more favorably under the supposedly neutral rating system that Ameritech used in selecting employees for the RIF, and also argued that he had been significantly underranked on one of the relevant criteria. The court, however, summarily dismissed those claims as irrelevant without considering the evidence for and against adequacy. In this case, then, the court deferred to the evaluation structure and the RIF, simply paying lip service to the adequacy of the procedures.

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Patterns of Judicial Deference over Time The examples above show what it looks like when a court defers to an organization’s symbolic structures. A few isolated cases, however, do not tell us how common judicial deference is. To examine patterns of judicial deference to symbolic structures, I draw on an empirical study that I conducted with Linda Krieger, Scott Eliason, Catherine Albiston, and Virginia Mellema, 31 which analyzed judicial opinions from 1965 to 1999, and a follow-up study that I conducted with Brent Nakamura, which updated that study to 2014. 32 Sample and Data To determine how widespread the practice has been and how it has varied over time and across types of legal cases, we needed a representative sample of judicial opinions. For the original judicial deference study, which covered the years 1965 to 1999, Linda Krieger and I fi rst used Westlaw to fi nd all federal civil rights district (trial) court and circuit (appellate) court opinions included in Westlaw33 during those years. 34 We included opinions resulting from cases brought under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), the Equal Pay Act of 1963 (EPA), and two post– Civil War civil rights statutes: 42 U.S.C. § 1981 and 42 U.S.C. § 1983. 35 We did not include Supreme Court cases both because of their relatively small number and so that we could treat important Supreme Court cases as independent variables that might influence judicial reasoning in the circuit and district courts. Although the Supreme Court is the most studied, moreover, organizational conceptions of compliance are likely to effect change in the lower courts fi rst. In the district courts, in particular, lawyers and parties contest facts as well as interpretations of law, and judges make critical decisions about what types of actions are legally relevant. Although circuit courts focus somewhat more on legal concepts than on the facts of cases, they still provide a critical terrain for the negotiation of social norms, policy considerations, and understandings of law. Our Westlaw search produced just over fi fty thousand cases. We selected a 2 percent sample consisting of 1,024 opinions, stratified by year and by district or circuit court. I refer to this as the pre-2000 sample. For the post-2000 study, we used the same Westlaw search term to

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generate a universe of cases for the years 2004, 2009, and 2014. The search produced 18,305 district court cases and 3,588 circuit court cases for those three years. We selected a 0.5 percent sample of district court cases and a 2 percent sample of circuit court cases for each of the three years, yielding a fi nal post-2000 sample of 92 district court cases and 72 circuit court cases (for a total of 164 cases). Figure 8.1 shows the number of district and circuit court opinions per year for both the pre- and post-2000 samples. Figure 8.1 (and subsequent figures) shows a break between the years comprising the pre-2000 sample (all years from 1964 to 1999) and those comprising the post-2000 sample (2004, 2009, and 2014). For this figure, counts from the post-2000 district court sample were multiplied by four to make them comparable to the 2 percent pre-2000 sample and post-2000 circuit court sample. As the pre-2000 sample was a representative sample stratified by year, and the post-2000 sample was representative for each of the years in the

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sample, figure 8.1 represents the overall pattern of EEO opinions in the federal district and circuit courts. 36 Each of the 1,024 pre-2000 and the 164 post-2000 cases was systematically coded to analyze whether and how judges used organizational structures in legal reasoning and discussed the quality or adequacy of organizational structures. 37 These data were used to model reference, relevance, and deference over time. 38 These results likely underestimate the prevalence of judicial deference because our coding of that variable was conservative: if the opinion stated that the structures were effective, that statement was taken to indicate that the judge considered the adequacy of the structures unless the court also discussed evidence that showed the structures were clearly flawed. Relevance and Deference over Time Figure 8.2 shows the percent of opinions over time for district and circuit courts in which at least one structure was considered relevant to the

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Figure 8.2. Percentage of opinions involving relevance and deference by year (n = 1,188). Note: Relevance and deference are shown as a five-year moving average based on the pre2000 sample and as discrete points based on the post-2000 sample (which includes the years 2004, 2009, and 2014).

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question of discrimination and that involved at least one instance of judicial deference to symbolic structures. I do not show reference because reference levels were very high throughout the time period studied, presumably because many of the structures we studied, such as progressive discipline policies, were common in organizations and frequently referenced by courts even prior to the civil rights era. Because there were relatively few cases in the earlier years, the data are more reliable after 1980. During the period of the initial study, 1965 to 1999, the percentage of opinions in which symbolic structures were considered relevant to the legal question of discrimination increased from about 26 percent to about 55 percent in the district courts, and from about 33 percent to about 70 percent in the circuit courts. The percentage of opinions in which judicial deference occurred during the fi rst thirty-five years of civil rights litigation increased from about 16 percent to about 37 percent in the district courts, and from zero to about 32 percent in the circuit courts. After 2000, the levels of relevance and deference rose sharply. Relevance increased from about 80 percent to about 94 percent in the district courts and about 60 percent to about 85 percent in the circuit courts. Deference ranged from about 61 percent to about 75 percent in the district courts, and from about 29 percent to about 49 percent in the circuit courts. As figure 8.2 shows, 2004 appears to be an outlier year, with a higher proportion of relevance and deference in the district courts and a higher level of relevance in the circuit courts. The reason for the higher proportion of relevance and deference in 2004 is most likely that the percentage of cases involving disparate treatment theory that year was disproportionately high. As I discuss in the next section, both relevance and deference occurred more often in cases involving disparate treatment theory.

Why Has Judicial Deference Gradually Increased? One general reason for the increase in judicial deference to symbolic structures over time is that as symbolic structures increasingly acquire an aura of legality and rationality, judges become less likely to question or scrutinize their efficacy. Organizational policies designed in some cases to achieve real equal employment opportunity and in other cases merely to symbolize equal employment opportunity are increasingly taken as a proxy for organizational compliance and as a heuristic

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for rejecting allegations of discrimination. This process is the essence of legal endogeneity. Beyond the general institutionalization of organizations’ symbolic structures, however, various trends in law and in the characteristics of EEO cases also helped to spur the rise in judicial deference. In discussing these factors, I draw on multivariate analyses of factors that made it more likely that judges would defer to symbolic structures, 39 trends in the use of legal theories and summary judgment that are observable in both the pre- and post-2000 samples, and general observations of judicial trends. The Rise of Disparate Treatment As discussed in chapter 3, disparate treatment doctrine is the legal theory most frequently invoked by plaintiffs in Title VII cases. Figure 8.3 shows the percentage of all opinions in the sample that involved allegations of disparate treatment and the percentage of all opinions involving deference to symbolic structures where disparate treatment was alleged. After 2000, the proportion of disparate treatment cases dropped slightly from its height at the close of the 1990s because, as I discuss be-

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low, hostile work environment cases comprised a larger percentage of all cases. The percentage of disparate treatment opinions involving deference, however, increased substantially after 2000. Even though nothing in disparate treatment theory specifies that the presence of symbolic structures should affect judicial reasoning, prior to 2000, district court judges were 15 percent more likely to defer to symbolic structures in disparate treatment cases than in hostile work environment cases and almost twice as likely to defer in disparate treatment cases relative to all other theories.40 In the circuit courts, the difference was even more dramatic. Judges were nearly six times more likely to defer to symbolic structures in disparate treatment cases than in hostile work environment cases and more than eleven times more likely when comparing disparate treatment cases to all other types of cases.41 Since 2000, the difference in likelihood of deference between hostile work environment cases and disparate treatment cases has decreased because, as I discuss below, deference has become more likely in hostile work environment cases in the district courts. The fi rst reason judges defer to symbolic structures in disparate treatment cases is that disparate treatment theory focuses on the employer’s discriminatory intent, which is not directly observable except in rare cases in which an employer openly states that an employment action was based on race or sex. Also, as discussed in chapter 3, most disparate treatment cases rest on circumstantial evidence, and—under the McDonnell Douglas– Burdine burden-shifting scheme 42—the plaintiff has the burden of proving that the employer’s stated reason is a pretext for discrimination. Judges infer a lack of intent to discriminate from the presence of symbolic structures even though nothing in the law makes those structures legally relevant. Because judges are intuitive decision makers and tend to presume that only irrational employers discriminate, the growing acceptance of symbolic structures as indicia of rationality and fair treatment in organizations makes it more likely that judges will assume that any organization with symbolic structures is a rational and fair organization. Judges, therefore, too readily accept an employer’s claim that an employee was dismissed pursuant to progressive discipline policy, or that a white employee was promoted instead of a black employee based on an evaluation procedure, or that an employee who perceived discrimination had already had a fair hearing pursuant to the organization’s grievance procedure. Because these structures symbolize rationality and legality,

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judges tend to overlook evidence that the progressive discipline policy was applied differently to minority and nonminority employees, or that the evaluation procedure systematically favored nonminority employees, or that a biased complaint handler evaluated the grievance in a cursory or unfair manner. The Faragher-Ellerth Affirmative Defense The second reason for the overall rise in the incidence of judicial deference in the circuit and district courts comes from the Supreme Court decisions in Meritor 43 in 1986 and then in Faragher 44 and Ellerth 45 in 1998. In Meritor, the Supreme Court formally recognized hostile work environment sexual harassment as a form of sex discrimination. Although the Court rejected the employer’s argument that its antidiscrimination policy and grievance procedure should protect it from liability in that case, the Court did point out in dicta that a more specific policy and a more effective grievance procedure might have afforded the employer some protection. Twelve years later, in the Faragher and Ellerth opinions, the Court explicitly created an affi rmative defense that allowed employers to escape liability if they could show that they had taken action to prevent and to promptly respond to sexual harassment and that the employee had not taken advantage of remedial options provided by the employer. In Ellerth, the Court specifically stated that policies prohibiting harassment and effective complaint procedures would normally satisfy the affi rmative defense. Later in the chapter I return to the question of why the Supreme Court chose to formally condone deference to employers’ symbolic structures in the Faragher and Ellerth decisions. Here, however, I focus on the impact of these Supreme Court decisions on judicial deference in the federal circuit and district courts. Despite the fact that the Court in Meritor only hinted at the relevance of organizations’ antiharassment policies and grievance procedures, the decision clearly had an impact both on the makeup of cases in our sample and on the likelihood of judicial deference to symbolic structures. As shown in figure 8.4, the proportion of hostile work environment opinions in our sample was only about 3 percent in both the district and circuit courts prior to Meritor46 but averaged about 22 percent of the district court opinions and about 11 percent of the circuit court opinions during the period between the 1986 Meritor decision and the 1998 Faragher and Ellerth decisions. After the Meritor decision, employers became far

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1986–1998

1999, 2004, 2009, 2014

Opinions involving hostile work environment claims Opinions involving both hostile work environment claims and deference Figure 8.4. Percentage of opinions involving hostile work environment claims and opinions involving both hostile work environment claims and deference.

more likely to point to their antiharassment policies and grievance procedures in their briefs in hostile work environment opinions.47 The proportion of hostile work environment opinions in the samples after 1998 was about 41 percent in the district courts and about 17 percent in the circuit courts. Also as shown in figure 8.4, judicial deference in hostile work environment cases rose substantially in the district courts after Faragher and Ellerth in 1998, although it declined slightly in the circuit courts. In the district court, during the twelve years prior to Faragher and Ellerth, deference occurred in only about 24 percent of opinions involving hostile work environment. After Faragher and Ellerth, deference occurred in about 58 percent of those opinions. The difference in the district and circuit courts is most likely explained by the fact that all the post-2000 district court opinions in our sample were summary judgment opinions (discussed in the next section). In the district court cases involving hostile work environment harassment, courts regularly granted summary judgment to the employer without considering the adequacy of organizations’ antiharassment policies and grievance procedures. Employers often claimed that they should not

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be held liable because the employee failed to use the internal grievance procedure. In many of these cases, courts ignored strong evidence that the employee had reason to fear retaliation or that the employer discouraged the employee from fi ling a grievance. Even when it was clear that the employer had actual knowledge of the harassment, courts sometimes found that the employer should not be held liable because the employee did not fi le the claim exactly as required under the company policy. McKinnish v. Donahoe,48 a 2014 sexual harassment case brought in the US District Court for the Western District of North Carolina, was typical in this regard. As in most hostile work environment sexual harassment cases since Faragher and Ellerth, the structures at stake were an antiharassment policy and a grievance procedure. Kimberly McKinnish, a mail carrier, alleged that her route supervisor, David Duncan, sexually harassed her by forcing her to engage in an exchange of sexually explicit text messages and pictures for ten months in 2010. She argued that the antiharassment policy was ineffective and that she did not use the US Postal Service (USPS) grievance procedure because she feared retaliation. Eventually, McKinnish’s husband discovered the text messages and brought them to the attention of the local postmaster. The postmaster investigated and initially terminated Duncan but later revoked the termination and instead downgraded his position, assigned him to a different location, and placed him on probation. McKinnish sued for hostile work environment harassment,49 and the USPS moved for summary judgment. Invoking the Faragher-Ellerth affi rmative defense, the USPS argued that it had taken reasonable care to avoid sexual harassment and that McKinnish unreasonably failed to use the grievance procedure. The court, without scrutinizing McKinnish’s claims that she could not use the grievance procedure for fear of retaliation and without questioning why Duncan’s termination was converted to a transfer, offered the following justification for its grant of summary judgment: The postal service has in place an effective written policy that swiftly dealt out discipline to Duncan once the conduct was brought to the attention of management at the West Asheville station.  .  .  . An employer should not be held liable where an employee fails to take advantage of a facially effective plan aimed at making the workplace free of harassment. Plaintiff’s fear of retaliation was without any plausible basis. . . . [The] defendant is entitled to judgment as a matter of law. 50

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This case is illustrative of many sexual harassment cases in which the court defers to the presence of an antiharassment policy and a grievance procedure without considering whether the policy or procedure was effective or whether the plaintiff had good reason to fear retaliation if the grievance procedure was used. The court’s reference to a “facially effective plan,” moreover, suggests that it did not think it necessary to inquire as to whether the plan was actually effective. Although the court’s treatment of employers’ policies in McKinnish was typical of hostile work environment cases, there are rare exceptions. One such exception, Williams v. Austal, 51 was a 2014 hostile work environment case involving racial harassment. Frederick Williams was hired as a welder at Austal, a shipbuilding company located in Mobile, Alabama, in 2006. He resigned after thirteen months and sued for constructive discharge, alleging a hostile work environment due to racial harassment. He testified that there were multiple instances of offensive racial graffiti in the bathroom, including references to the Ku Klux Klan and multiple references to “niggers,” that a coworker wore an offensive T-shirt, and that he witnessed his supervisor write “porch monkeys” on the wall of a ship. He further alleged that his supervisor, after learning that Williams had signed an EEOC charge, stood less than an inch from Williams’s lips and screamed that he “wasn’t a goddam racist.”52 Williams complained to his supervisor, who responded that “it’s always been like that and that if [he] didn’t like it to quit.”53 Williams also complained to HR, but no action was taken to remedy the situation. The employer submitted evidence that it responded, but only after Williams had resigned from the company. Pursuant to the Faragher-Ellerth affi rmative defense, Austal submitted evidence that it had put in place an antiharassment policy, which urged employees to report complaints either to their supervisor or to the department’s manager. Rather than deferring to the policy and complaint procedure, however, the Court explicitly scrutinized the adequacy of the policy and its provisions for complaints and, fi nding the policy inadequate, denied the motion for summary judgment, reasoning as follows: [T]here is no uniform test for determining whether an employer’s policy demonstrates that it exercised reasonable care, and the mere existence of a formal anti-harassment policy does not satisfy this fi rst prong. . . . An employer’s pol-

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icy fulfi lls its “prevent harassment” obligation if the employer promulgates a policy that is comprehensive, well known to employees, vigorously enforced, and provides alternative avenues of redress; and the policy must not be administered “in bad faith” or be otherwise “defective or dysfunctional.”  .  .  . An employer can establish that it exercised reasonable care to prevent harassment by showing that it promulgated and effectively disseminated a clear anti-harassment policy with complaint procedures to its employees, so long as the complaint procedures . . . do not require the employee to complain to the offending supervisor or through the supervisor’s chain of command. 54

Opinions that emphasize the need for effective antiharassment policies and grievance procedures, however, are few and far between. The increasing prevalence of opinions in which judges defer to these structures without evaluating their adequacy in district court decisions that grant summary judgments, then, helps to explain the increase in judicial deference generally. Summary Judgment Actions The third reason, and probably the most important one, for the rise of judicial deference over time is the increasing tendency of judges to grant employers’ motions for summary judgment, as discussed in chapter 3 and illustrated in figure 3.2. A summary judgment action in EEO cases almost always involves the employer arguing that the facts show that the employee’s case is so weak that no reasonable jury could fi nd in his or her favor, so the court should decide the case in the employer’s favor as a matter of law. Summary judgment cases in circuit courts involve appeals of summary judgments granted in district courts. The legal standard for summary judgment requires the court to evaluate the facts and draw all reasonable inferences in the light most favorable to the nonmoving party (i.e., the employee). 55 Thus, because deference involves drawing an inference in favor of the employer from the presence of symbolic structures, one would expect less deference in summary judgment actions than in cases resulting in a full trial on the merits of the case. In fact, however, as deference became more common, judges began to defer to symbolic structures more often in summary judgment cases than in fully adjudicated cases. Figure 8.5 shows the percentage of opinions in which judges deferred to symbolic structures by whether the opinion involved summary judg-

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Percentage

District courts

Circuit courts

100

100

80

80

60

60

40

40

20

20

0

1967–1979 1980–1986 1987–1999 2004, 2009, 2014

Summary judgment

0

1967–1979

1980–1986

1987–1999

2004, 2009, 2014

Not summary judgment

Figure 8.5. Percentage of opinions with deference by whether the opinion involved summary judgment.

ment. As shown in the figure, after 1986, judges deferred more in opinions involving summary judgment than in opinions that did not involve summary judgment. In the circuit courts, there were relatively few summary judgment cases until 1986, when the Celotex trilogy56 made it easier for employers to prevail in a motion for summary judgment. The reason for the greater likelihood of judicial deference in summary judgment opinions is that because there is less opportunity for judicial attention to the facts in summary judgment cases, judges are more likely to use the mere presence of symbolic structures as a heuristic to infer that employers are rational and hence nondiscriminatory. Grants of summary judgment have become the norm in EEO cases. In the post-2000 sample, 100 percent of the 92 opinions randomly selected for the district court sample involved motions for summary judgment, which is why figure 8.5 shows zero non– summary judgment opinions for 2004, 2009, and 2014. 57 The increasing prevalence of summary judgment opinions in the district courts, together with the disproportionate use of deference in summary judgment opinions, helps to explain the overall rise in the likelihood of deference.

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Plaintiff Race and Intersectionality A fourth reason for the increase in judicial deference over time may be the rise in the percentage of cases involving intersectional claims, or claims involving two or more disadvantaged statuses such as race and sex or race and age. Intersectional claims have risen rather dramatically over time, from less than 10 percent of EEO opinions in the 1970s to more than a quarter of EEO opinions by the 1990s. 58 Judges not only defer to symbolic structures more in cases involving minority plaintiffs than they do in cases involving white plaintiffs;59 they also defer more in cases involving intersectional plaintiffs (e.g., black women) and intersectional claims (e.g., claims of both race and sex discrimination).60 These fi ndings suggest that the intuitive, heuristic-based type of decision making that is typical among judges61 interacts in a subconscious manner with implicit biases based on race62 in a way that causes judges to give symbolic structures even greater weight when lawsuits involve intersectional plaintiffs or intersectional claims. This fi nding is consistent with a recent study that showed that judges, like everyone else, harbor implicit racial biases and that these biases can influence judicial decision making.63 Judicial Politics As discussed in chapter 3, the judiciary has become more conservative over the past half century, and this would seem to be another explanation for the rise in judicial deference to symbolic structures over time. Yet somewhat surprisingly, our data did not show that conservative judges defer more than liberal judges. In the district courts, there were no differences at all in the likelihood of deference based on judicial politics.64 In the circuit courts, liberal judges were significantly more likely than conservative judges to defer to symbolic structures. The reason for this is unclear, but it could be that liberal judges are more impressed by the trappings of due process and rational governance than are conservative judges. Thus, although the increasing conservatism of the judiciary is associated with the overall outcome of EEO cases,65 it does not appear to be directly associated with the increase in judicial deference.

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Judicial Reluctance to Review Employers’ Personnel Decisions Beyond the specific factors discussed so far, an important underlying reason for the increase in judicial deference over time is a general sense by the judiciary that courts should rarely intervene in employers’ business or personnel decisions. An early instance of this logic appears in the 1978 Supreme Court case Furnco Construction Corp. v. Waters.66 Furnco, the employer, specialized in relining blast furnaces. Rather than employing permanent bricklayers, it delegated the hiring of bricklayers to the superintendent at a particular jobsite. The industry practice was for job superintendents to hire people who were known by the job superintendent (or by others who were trusted by that superintendent) to be competent rather than to hire applicants at a job site. That practice made use of the superintendent’s social networks and therefore resulted in a disproportionately white workforce. The lawsuit was brought by three black bricklayers who were denied employment at the work site even though they were fully qualified. The employer argued that the practice was not intended to be discriminatory and was necessary because it was critical that the bricklayers be competent. After the district court ruled in favor of Furnco, the appellate court reversed the decision and, further, offered advice on a less discriminatory method of hiring, which would involve written applications, evaluations of qualifications and experience, and comparisons of applicants to those with whom the employer was already acquainted. The Supreme Court, however, chastised the appellate court for interfering with the employer’s business judgment, stating: “Courts are generally less competent than employers to restructure business practices, and, unless mandated to do so by Congress, they should not attempt it.”67 The idea that courts should adopt a hands- off position with respect to employers’ business judgments also appears frequently in opinions involving judicial deference to employers’ symbolic structures. Although the idea is expressed in many ways, one common phrase stood out in that it captured the essence of judicial reluctance to look beyond the facial legitimacy of organizational policies: the notion that courts should not act as a super-personnel department. This term is typically used in a sentence such as: “This court has repeatedly stated that it is not a superpersonnel department that second-guesses employer policies that are facially legitimate.”68

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192 District courts

Circuit courts 30

20

20

10

10

0

0

Year

83 19 86 19 89 19 92 19 95 19 98 20 01 20 04 20 07 20 10 20 13

19

89 19 92 19 95 19 98 20 01 20 04 20 07 20 10 20 13

19

83

19

19

86

Percentage

30

Year

Figure 8.6. Percentage of opinions with the phrase super- personnel department, 1983 to 2014, three-year moving average.

The diffusion of that term over time provides an informal indicator of the extent to which it resonated with judges. The term fi rst appeared in 1983 in the Tenth Circuit69 but diffused quickly, and has been used most in the Seventh, Eighth, and Tenth Circuits. Figure 8.6, which is based on a Westlaw search for the term super-personnel department in Title VII opinions involving grievance procedures, antiharassment policies, or diversity policies, shows the percentage of opinions that use the term over time. The figure suggests that judicial reluctance to second-guess employers’ business and personnel decisions was becoming more common at the same time that judicial deference to symbolic structures was rising.70 As of 2014, the term had been used in 498 circuit court opinions and in 2,855 district court opinions involving grievance procedures, antiharassment policies, or diversity policies. Although figure 8.6 shows the diffusion of a particular turn of phrase that illustrates judicial reluctance to interfere in employers’ business judgments, it is important to note that the term itself appears in only a small fraction of EEO opinions that involve judicial deference, even though the general reluctance of courts to interfere in employers’ business judgments is apparent in most opinions involving deference.

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The Link between Judicial Deference and Case Outcome Employees lose most employment discrimination cases, and have become increasingly likely to lose over time. Figure 8.7 shows success rates for employers and employees, respectively, as well as cases in which there were mixed results.71 A mixed result means that the employee won on at least one claim but did not win on all claims in the case. As figure 8.7 makes clear, employers are much more likely to win EEO claims than are employees, and the gap increased dramatically in the mid1990s. From 2000 to 2014, employers won on average 75 percent of district court cases and 81 percent of circuit court cases. Employees experienced complete victories in only 11 percent of district court cases and 7 percent of circuit court cases during that period.72 Plaintiffs’ likelihood of success in pretrial adjudication is even lower. From 1979 to 2006, employment discrimination plaintiffs won less than 4 percent of the time, whereas other plaintiffs won more than 20 percent

Employer wins

14

09

20

04

20

20

94

99 19

89

19

19

19

19

Year

84

0 19

0

79

20

19

20

19

40

69

40

19

60

79 19 84 19 89 19 94 19 99 20 04 20 09 20 14

60

69

80

74

80

74

Circuit courts 100

19

Percentage

District courts 100

Year

Mixed result

Employee wins

Figure 8.7. Percentage of employer and employee wins over time, 1970 to 2014. Note: The pre-2000 proportion of opinions is shown as a three-year moving average based on the pre-2000 sample and as discrete points based on the post-2000 sample (which includes the years 2004, 2009, 2014).

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of the time.73 And cases that employees did win were often reversed on appeal.74 Most employment discrimination experts agree that the federal courts are very hard on employees who bring employment discrimination lawsuits. As I show in the next section, moreover, judicial deference to symbolic structures is one reason that employees are so likely to lose their cases. How Judicial Deference Affects Success Rates Judicial deference alone does not guarantee that an employer will prevail because many other factors come into play in employment discrimination cases. A study I conducted with Linda Krieger and Rachel Best, however, showed that even when other factors are taken into account, judicial deference makes it much more likely that employers will win the case.75 As one would expect, when judges do evaluate the adequacy of symbolic structures, the outcome of each case depends largely on whether the judge rules that the structures are adequate or inadequate. When judges evaluate symbolic structures and fi nd them to be adequate, employers tend to win the case; conversely, when judges fi nd structures to be inadequate, employees are more likely to secure at least a partial victory. But when judges defer to symbolic structures—that is, fi nd them relevant to the question of whether discrimination occurred but fail to scrutinize their adequacy—it is as harmful to employees as if judges found the structures to be adequate. Figure 8.8 shows a comparison of the predicted probability of plaintiff victory for opinions in which no structures are discussed, opinions in which judges defer to one structure, opinions in which judges scrutinize one structure and fi nd it to be adequate, and opinions in which judges scrutinize a structure and fi nd it inadequate. It shows that in the relatively rare cases in which judges scrutinize a symbolic structure and fi nd it to be inadequate, plaintiffs almost always win. The predicted probability of plaintiff victory is roughly equal, however, in opinions in which judges scrutinize a symbolic structure and fi nd it adequate and in opinions in which judges defer to a symbolic structure.76 Judicial Deference, Judicial Politics, and Win Rates The impact of judicial deference on case outcome, moreover, is not simply a matter of judicial politics. As might be expected, more conservative judges are less likely to rule in favor of plaintiffs.77 The effect of judicial

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No relevant structures discussed

One structure deferred to

One structure scrutinized, adequate

One structure scrutinized, inadequate

0

20

40 60 80 Predicted probability (%)

100

Figure 8.8. Predicted probability of plaintiff victory by degree of judicial scrutiny. Source: Calculations based on Krieger, Best, and Edelman, “When ‘Best Practices’ Win,” 857, table 2.

deference does not change, however, when controlling for judicial politics, which suggests that the deference effect is not merely masking an effect of judicial politics. Even when opinions written by the same judge were compared, employees were less likely to win in opinions that involved deference. Further, there is an interaction between judicial politics and judicial deference. On average, employees fare better in opinions written by liberal judges. But as liberal judges defer to more structures within a case, this advantage disappears. Liberal judges generally favor employees more than do conservative judges, but liberal judges who defer to more symbolic structures in a given case look more like conservative judges. Figure 8.9 shows the predicted probabilities of employee victory when liberal and conservative judges defer to varying numbers of symbolic structures.78 Judicial Deference, Case Outcome, and Legal Endogeneity Employers have become more likely to prevail in lawsuits for employment discrimination for a number of interrelated reasons, including an

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196

Predicted probability (%)

80

60

40

20

0 0

1

2 3 Number of structures deferred to Liberal judge

4

5

Conservative judge

Figure 8.9. Predicted probability of plaintiff victory by judicial politics. Source: Originally published in Krieger, Best, and Edelman, “When ‘Best Practices’ Win,” 860, fig. 2.

increasingly conservative judiciary, courts’ propensity to grant employers’ motions to dismiss and employers’ motions for summary judgment, and, as I have shown in this chapter, the increasing likelihood of judicial deference to symbolic structures. The endogeneity of law, moreover, is an iterative process. Every time a judge treats organizational structures as evidence of nondiscrimination, those structures gain greater legal legitimacy, both within organizational communities and within the legal community. That legal legitimacy, in turn, increases the legitimacy of these structures among organizations and makes it much more likely that employers will invoke those structures if they end up in court. It also means that plaintiffs’ lawyers will become more reluctant to bring cases where these structures are in place, making their chances of success slim. The iterative nature of the institutionalization process means that, over time, courts become increasingly likely to infer nondiscrimination from the presence of organizations’ symbolic structures, rendering law more endogenous.

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Deference to Symbolic Structures in the US Supreme Court The evolution of judicial deference in the lower federal courts set the stage for the Supreme Court’s formal endorsement of antiharassment policies and grievance procedures in its 1998 Faragher and Ellerth decisions. As I discussed earlier, these decisions created an affi rmative defense to hostile work environment sexual harassment, which allowed employers to avoid liability if they had created an antiharassment policy and a grievance procedure that the employee unreasonably79 failed to use. And, as I showed earlier, the Faragher and Ellerth opinions resulted in a substantial increase in judicial deference to antiharassment policies and grievance procedures in the district courts. Although the Supreme Court appeared to be making new law in Faragher and Ellerth, it was formally incorporating a view of compliance with Title VII in the sexual harassment context that had been advocated by compliance professionals, endorsed by employers, incorporated into legal arguments by management lawyers, and unofficially condoned by the lower federal courts. Thus, the Faragher-Ellerth affi rmative defense exemplifies legal endogeneity at the Supreme Court level, where the Court is not simply deferring to the structures in a given case but rather is formally specifying that lower courts should defer to these structures. In chapter 7, I showed how employers mobilized symbolic structures as a defense in the lower courts. Here, I draw on amicus curiae (friend of the court) briefs fi led in Faragher and Ellerth, and in the Meritor case that foreshadowed them, to show how not only organized interest groups representing employers and compliance professionals but also the EEOC mobilized symbolic structures at the Supreme Court level. I show how these interest groups drew on arguments that had already proven successful in the lower courts, and I suggest that their arguments resonated with the Court because legal consciousness had become so managerialized that the Court would not question the equation of antiharassment policies and grievance procedures structures with Title VII compliance. Table 8.1 shows a list of amicus curiae briefs fi led in the Meritor, Faragher, and Ellerth cases at the Supreme Court level, classified by whether they were submitted in support of the employer or the employee in the case.80

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198 Table 8.1. Amicus Briefs in Meritor, Faragher, and Ellerth Case

Supporting Employer

Supporting Employee

Meritor Savings Bank, FSB v. Vinson Petitioner: Meritor Savings Bank Respondent: Mechelle Vinson

Trustees of Boston University Equal Employment Advisory Council EEOC

AFL- CIO, Coal Employment Project, Coalition of Labor Union Women, and National Education Association Members of Congress States of New Jersey, California, Connecticut, Illinois, Minnesota, New Mexico, New York, and Vermont; Pennsylvania Human Relations Commission Women’s Bar Association of New York Working Women’s Institute

Faragher v. City of Boca Raton Petitioner: Beth Ann Faragher Respondent: City of Boca Raton

Chamber of Commerce Equal Employment Advisory Council National Association of Manufacturers and Manufacturers Alliance for Productivity and Innovation Society for Human Resource Management

Lawyers’ Committee for Civil Rights under Law and ACLU AFL- CIO EEOC National Women’s Law Center, Equal Rights Advocates, and Women’s Legal Defense Fund

Burlington Industries, Inc. v. Ellerth Petitioner: Burlington Industries, Inc. Respondent: Kimberly B. Ellerth

Chamber of Commerce Equal Employment Advisory Council

AFL- CIO EEOC Equal Rights Advocates, NOW Legal Defense and Education Fund, National Partnership for Women & Families, and National Women’s Law Center National Employment Lawyers Association Rutherford Institute

The Role of Symbolic Structures in Early Sexual Harassment Cases I showed in chapter 3 how feminist legal pioneers adopted a conscious strategy of framing sexual harassment as a violation of Title VII’s ban on sex discrimination.81 Since Title VII did not explicitly specify that sexual harassment was illegal, judges in many early cases held that harassment was outside the scope of Title VII. But over time, courts, and circuit courts in particular, gradually came to see sexual harassment as a

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form of sex discrimination, in part because of legal scholar and advocate Catharine MacKinnon’s 1979 book, Sexual Harassment of Working Women. The EEOC guidelines fi rst recommended in 1980 that employers take measures to prevent sexual harassment, but they did not specify precisely what measures should be taken, nor did they recommend antiharassment policies and grievance procedures. Nonetheless, as discussed in chapter 5, compliance professionals pointed to the EEOC guidelines in recommending that employers adopt antiharassment policies as a means of reducing legal risk, even though the courts had not yet officially endorsed such a view. As compliance professionals advocated these structures, management lawyers—as I showed in chapter 7—increasingly mobilized these structures in defending employers. The Meritor case in 1986 was the fi rst sexual harassment case to reach the US Supreme Court. Mechelle Vinson sued for hostile work environment sexual harassment, alleging that over a period of four years, the bank’s vice president, Sidney Taylor, had demanded sexual favors, and that out of fear that she would lose her job, she had sex with him forty or fi fty times. Vinson reported that she did not use the bank’s grievance procedure because she feared reprisals from Taylor. There were numerous issues in the case, including whether sexual harassment should be considered a violation of Title VII, whether an employee who consents to unwelcome sexual advances out of fear of losing a job can recover for sexual harassment, whether the employee’s dress or sexual practices should be considered, and whether the employer can be held vicariously liable for sexual harassment by supervisors. I focus here only on the liability issue, which involved the employer’s symbolic structures. When Meritor reached the Supreme Court, the amicus briefs submitted in favor of Mechelle Vinson, mostly by women’s rights organizations, were only tangentially concerned with the possibility of employers escaping liability by creating symbolic structures. Those briefs were far more concerned with other issues raised in the case, such as the recognition of sexual harassment as a violation of Title VII and the lower court’s classification of Vinson’s sexual relationship with Taylor as voluntary as opposed to unwelcome. The briefs submitted in favor of Meritor Savings Bank, however, drew on other employers’ successes in securing deference to symbolic structures in the lower courts to argue that employers should escape liability for sexual harassment if antiharassment policies and grievance pro-

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cedures were in place. Drawing as well on general agency principles that had been raised in lower- court sexual harassment cases, the proemployer amicus briefs argued that employers should not be held liable if antiharassment policies and grievance procedures had been created. Their argument was premised on the idea that the presence of these structures meant that any supervisor who engaged in sexual harassment was not acting as an agent of the employer. The strongest argument was made by the Equal Employment Advisory Council (EEAC), a nonprofit organization staffed by management lawyers and HR professionals, which represented the interests of employers. The EEAC brief argued in favor of the affi rmative defense, suggesting that employees should have the burden of informing employers of offensive contact.82 The EEAC further contended that allowing employees to seek justice through the courts without fi rst pursuing complaints through internal grievance procedures would discourage employers from designing measures to prevent, detect, or stop sexual harassment. Given that the EEAC represents employers, its advocacy of the affi rmative defense was not surprising. Curiously, however, the EEOC (together with the US Justice Department) also fi led an amicus brief in support of the employer and also supported adoption of the affi rmative defense. The EEOC/US Amicus Brief in Meritor To understand why the EEOC, an agency designed to enforce antidiscrimination law, would fi le a brief in support of the employer in Meritor requires a look at the politics of the times. Earlier, under the direction of President Jimmy Carter’s appointee Eleanor Holmes Norton, the EEOC had taken an aggressive role in defi ning sexual harassment as a form of illegal discrimination on the basis of sex.83 The EEOC’s 1980 guidelines, which were issued just before Carter left office, codified sexual harassment as a form of sex discrimination and explicitly incorporated the idea of hostile work environment harassment. With the election of President Ronald Reagan in 1980, the government scaled back its civil rights efforts considerably. Shortly after he took office in 1981, Reagan and William Bradford Reynolds initiated an effort to review all EEO policies, including the new EEOC regulations on sexual harassment. Reagan appointed Clarence Thomas to head the EEOC in 1982, which infuriated civil rights advocates. With Thomas as head of the EEOC and Reynolds as assistant attorney general for the Civil Rights Division of the Justice

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Department, it is perhaps not surprising that the EEOC and US Justice Department amicus brief supported the employer rather than the employee in the Meritor case. The EEOC was somewhat constrained by the guidelines it had issued in 1980, 84 which had provided that an employer was responsible for sexual harassment “regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.”85 But the guidelines left room for examining the circumstances to determine whether a supervisor was acting in an agency capacity.86 The EEOC and Justice Department apparently decided to take advantage of the ambiguity in the EEOC guidelines to lobby for a more probusiness interpretation of employers’ liability for hostile work environment claims, under which employers would be protected if they had created antiharassment policies and grievance procedures. The EEOC and Justice Department brief in Meritor adopted a position somewhat less extreme than that of the EEAC in that it differentiated between quid pro quo harassment, in which a supervisor conditions economic benefits upon acquiescence to sexual requests, and hostile work environment harassment, in which sexual advances, commentary, or actions interfere with an employee’s capacity to work. The EEOC advocated retaining the vicarious liability standard in quid pro quo cases but supported an affi rmative defense in hostile work environment cases, under which employers could be insulated from liability if they had instituted a policy against sexual harassment and a grievance procedure. [W]e propose a rule that asks whether a victim of sexual harassment had reasonably available an avenue of complaint regarding such harassment and, if available and utilized, that procedure was reasonably responsive to the employee’s complaint. If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment. 87

The EEOC brief did insist, however, that the policies and grievance procedures be effective, a view it would retain in the Faragher and Ellerth cases.

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The US Supreme Court Ruling in Meritor The Supreme Court, referring to the EEOC’s brief and guidelines, recognized hostile work environment harassment as a form of sex discrimination prohibited by Title VII. On the issue of liability, the Court discussed at length the EEOC’s argument that an antiharassment policy and grievance procedure, coupled with the plaintiff’s failure to use that procedure, should insulate an employer from liability in hostile work environment cases. Ultimately, pointing out that the argument in the EEOC brief controverted the EEOC’s own guidelines, the Supreme Court declined to issue an authoritative ruling on the issue of liability, stating only that an employer should not be “automatically” liable in a hostile work environment case. While the Court did not go as far as to adopt the EEOC’s recommended affi rmative defense, it did open the door for that defense, as seen in the fi nal sentence of the following quote; it was considered nonbinding dicta because it did not pertain directly to the case at hand: Finally, we reject petitioner’s view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent’s failure to invoke that procedure, must insulate petitioner from liability. While those facts are plainly relevant, the situation before us demonstrates why they are not necessarily dispositive. Petitioner’s general nondiscrimination policy did not address sexual harassment in particular, and thus did not alert employees to their employer’s interest in correcting that form of discrimination. Moreover, the bank’s grievance procedure apparently required an employee to complain fi rst to her supervisor, in this case [the alleged perpetrator]. Petitioner’s contention that respondent’s failure should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward. 88

By leaving open the possibility that a better policy and grievance procedure might have offered the employer protection from liability, the Meritor case opened the door for the affi rmative defense that would be adopted twelve years later. The Supreme Court’s lack of a defi nite ruling on liability left substantial ambiguity. After Meritor, compliance professionals became even bolder in asserting that antiharassment policies and grievance procedures would insulate employers from liability, and management lawyers more frequently asserted this defense in court. 89

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Lower courts were increasingly deferring to these symbolic structures even though their formal legal status was still unclear. In 1998, in light of district and circuit cases that had interpreted Meritor in multiple ways, the Supreme Court took up the issue again in the Faragher and Ellerth cases. The Faragher and Ellerth Cases Both Faragher and Ellerth involved situations in which the employers had a policy prohibiting sexual harassment but supervisors nonetheless engaged in egregious sexual harassment. Beth Ann Faragher worked as a lifeguard for the Marine Safety Section of the City of Boca Raton, Florida. She alleged that two supervisors, Bill Terry and David Silverman, had engaged in uninvited, offensive, and inappropriate touching; made lewd remarks, threats, and sexual commentary about women in general and Faragher in particular; and simulated sexual activity. Faragher did not fi le a complaint about the harassment before resigning. Kimberly Ellerth worked as a salesperson for Burlington Industries. She alleged that Theodore Slowik, a vice president with authority to make hiring and promotion decisions, harassed her at her job interview and during frequent work-related trips to other cities. Slowik made frequent sexual remarks about Ellerth’s body, asked about her sexual practices with her husband, made unwelcome advances, told her to “loosen up,” and on multiple occasions threatened to make her life hard if she refused to have sex with him.90 Ellerth knew that Burlington had a policy against sexual harassment but did not use the internal grievance procedure or report the behavior in any other manner. She resigned and sued for constructive discharge due to sexual harassment. By 1998, when both the Faragher and Ellerth cases were before the Supreme Court, amicus briefs on both sides of the cases addressed the issue of whether antiharassment policies and grievance procedures should insulate employers from liability for sexual harassment. The issue in both cases was the standard of liability in hostile work environment cases, a standard that Meritor had left ambiguous by stating only that an employer should not be automatically liable in such cases. As shown in table 8.1, six organizations representing the interests of employers and compliance professionals fi led amicus briefs on behalf of the two employers. As in Meritor, the briefs fi led on behalf of the em-

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ployers advocated the adoption of the affi rmative defense based on the presence of antiharassment policies and grievance procedures. The EEAC fi led amicus briefs on behalf of the employers in both Faragher and Ellerth, arguing that an employer should never be held vicariously liable for sexual harassment because sexual harassment is virtually always outside the scope of a supervisor’s employment.91 Invoking the Supreme Court’s language in Meritor, which held that employers should not be automatically liable in hostile work environment cases, the EEAC argued that allowing a plaintiff who has failed to use an internal grievance procedure to recover under Title VII would be “tantamount to automatic liability.”92 Other briefs filed on behalf of the employers did not go as far as the EEAC brief, but did suggest that where an employer creates and disseminates those policies, the employer should not be liable for sexual harassment. The general rationale for the affi rmative defense offered in briefs favoring the employers was that the defense would encourage employers to take stronger action to prevent sexual harassment. But a brief fi led in Faragher by the Society for Human Resource Management suggested an additional rationale: the Supreme Court should afford employers legal protection for creating antiharassment policies in part because employers expect legal protection when they create those policies. Given that SHRM had been promulgating that expectation, it was an intriguing argument. Further, invoking the lower courts’ language with regard to super-personnel departments, the SHRM brief argued that the Supreme Court should defer to the expertise of employers: SHRM fi rmly believes that employers, rather than courts, are best suited in the fi rst instance to address [sexual harassment] in an efficient and defi nitive manner. The courts have echoed this sentiment. For example, the Eleventh Circuit cautioned in Elrod v. Sears Roebuck and Co., federal courts “‘do not sit as a super-personnel department that re- examines an entity’s business decisions.’” Similarly, the First Circuit noted in Keyes v. Secretary of the Navy, “It is chancy business, indeed, for a court—on so interstitial a matter—to set itself up as a super personnel evaluator.” 93

On the other side of the issue, all but one of the briefs fi led by advocacy organizations representing women and employees strongly opposed the affi rmative defense and argued that employers should be held

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vicariously liable for sexual harassment. Some pointed out that vicarious liability would be more effective at encouraging employers to prevent sexual harassment because employers would not have the excuse that they had created antiharassment policies. In addition, most of the briefs fi led in support of the employees argued against a requirement that employees use employers’ grievance procedures, emphasizing that employers often fail to notify employees of these procedures and that employees might reasonably fear retaliation for complaining about their supervisors. The EEOC was the exception. The agency fi led amicus briefs in both cases, this time in support of the employees, but it maintained its support for the affi rmative defense based on antiharassment policies and grievance procedures in hostile work environment cases. As it had in Meritor, the EEOC made a distinction between cases that did not condition tangible job benefits on submission to sexual demands and those that did, placing Faragher in the former category and Ellerth in the latter. In the Faragher case, the EEOC argued that the Court should adopt an affi rmative defense that would afford employers’ protection if they had adopted antiharassment policies and grievance procedures and if the employee had unreasonably failed to make use of the grievance procedure. In contrast to the amicus briefs fi led on behalf of the employers, the EEOC emphasized, as it had in Meritor, that these procedures must be effective to protect employers. Further, the EEOC emphasized the need for courts to scrutinize the operation of organizational policies rather than to fi nd for the employer in any case in which the policies existed. The inquiry we propose is necessarily fact-intensive, and a wide variety of circumstances may be relevant, including the extent of the delegation of authority, the effectiveness of any employer policy against harassment, whether the harassment occurred during the course of supervision, and the past actions of the supervisor. Ultimately, when a supervisor has not threatened or imposed adverse employment consequences, and has not used his supervisory authority to direct an employee to a place where she is in a vulnerable position, the plaintiff must establish two elements to impose liability on the employer: First, that she feared adverse employment consequences if she resisted or complained; and, second, that her fear was objectively reasonable in light of the supervisor’s conduct in the employer’s practices.94

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The effectiveness criterion was the reason for the EEOC’s support of the employee in the Faragher case. The agency argued that the City of Boca Raton’s procedures were not effective because the employer’s antidiscrimination policy had not been disseminated to employees and because Faragher could reasonably have feared retaliation if she complained. In Ellerth, the EEOC supported the employee for a different reason. It argued that because Slowik, the supervisor, had threatened tangible job consequences if Ellerth failed to submit to sexual demands, the employer should be vicariously liable for sexual harassment.95 Even though the EEOC fi led amicus briefs in support of the employees in both the Faragher and Ellerth cases, its general position on liability was closer to those of the amicus briefs fi led in support of the employers in that it favored the affi rmative defense. The EEOC brief differed from most pro- employer briefs, however, in that it advocated the affi rmative defense only when there were no threats involving tangible job benefits and only when the policies were effective. The US Supreme Court Decisions in Faragher and Ellerth The Supreme Court issued both the Faragher and Ellerth opinions on June 26, 1998. The two opinions specified the same standard on employer liability in sexual harassment cases and each referred to the other. The Court adopted a variant of the position that the EEOC had advocated, but one that was more favorable to employers. The Court held that in situations where a supervisor conditions tangible economic action on the performance of sexual favors, the employer is vicariously liable. Where no tangible economic action is taken (even if it is threatened), however, the employer may raise an affi rmative defense. The two-pronged affi rmative defense, set forth in both Faragher and Ellerth, requires that employers prove: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.96

Both opinions go on to incorporate the position taken by the amicus briefs favoring employers and by the EEOC briefs that antiharassment

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policies and grievance procedures would, in most cases, allow the employer to escape liability. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the fi rst element of the defense. And while proof that an employee failed to fulfi ll the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.97

In the Faragher and Ellerth decisions, the Court adopted the logic of compliance that had been advocated by compliance professionals, adopted by organizations, accepted by many lawyers and judges, and used in the federal district and circuit courts when deferring to symbolic structures. As these structures became commonplace in organizations, an increasingly managerialized legal consciousness helped social and legal actors alike to equate the presence of these structures with EEO compliance. In part because compliance had come to be understood as the presence of organizational structures, the Supreme Court devoted little attention to the actual effectiveness of these policies and procedures. The widespread acceptance of these organizational structures as evidence of compliance is evident in a somewhat curious statement by Justice Anthony Kennedy, who wrote the Court’s opinion in Ellerth. Justice Kennedy offered the following justification for the affi rmative defense: Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer’s effort to create such procedures, it would effect Congress’ intention to promote conciliation rather than litigation in the Title VII context.  .  .  . To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII’s deterrent purpose.98

In fact, nothing in Title VII states that its purpose is to encourage the creation of antiharassment policies, effective grievance mechanisms,

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or any other form of symbolic structure. Yet it may have seemed to Justice Kennedy that these organizational structures were envisioned in the purpose of Title VII because, by 1998, symbolic structures had come to be understood not just as a means of achieving civil rights but also as the achievement of civil rights. The Supreme Court has so far endorsed these structures only in the context of hostile work environment harassment. But as I showed in the previous section, the lower courts frequently defer to the presence of these structures in other types of discrimination cases, especially cases involving disparate treatment allegations and motions for summary judgment. It may only be a matter of time before the Supreme Court formally condones deference to symbolic structures in other contexts.

The EEOC and Administrative Deference to Symbolic Structures In view of the EEOC’s role as an amicus curiae in Meritor, Faragher, and Ellerth, I now consider the question of whether judicial deference to symbolic structures in sexual harassment cases might be attributable to EEOC guidance rather than to ideas about compliance with civil rights laws that evolved within organizational fields. In this section I argue that, although the EEOC clearly played a role in the evolution of the Faragher-Ellerth affi rmative defense, the EEOC was itself responding to managerialized conceptions of civil rights law that originated among organizations. Attention to Symbolic Structures in the EEOC Guidelines To determine the extent to which the EEOC led or followed organizations or the courts, I coded the organizational structures that were mentioned in EEOC guidelines from 1966 (the fi rst year they were issued) through 2013, for a total of 215 guidelines. The EEOC issued guidelines annually (except for 1982) on sex discrimination, religious discrimination, nationality discrimination, employee selection, and affi rmative action, although guidelines were not issued for each topic every year. The guidelines appear in the Code of Federal Regulations.99 Figure 8.10 shows a timeline of all organizational structures that were

2013 &RQVWUDLQWVRQVWUXFWXUHLPSOHPHQWDWLRQ

5HFRPPHQGHGVWUXFWXUHV

2000  6'Antiharassment policy and complaint procedure.

1995

1990  5' Religious accommodations cannot affect seniority determinations.  1' No English-only workplace policy; 5' Reasonably accommodate religious practices unless undue hardship; 5' Evaluation procedures must accommodate religious practices.  $$ Modify discriminatory training requirements; $$ Modify discriminatory hiring policies; $$ Remove discriminatory evaluation criteria.  6' Benefits policy cannot give employee benefits in a discriminatory manner; 6' Leave policy must apply equally to pregnancy and childbirth.  (6 Validity and relevance required in position tests; (6 Evaluation procedures must be consistent and nondiscriminatory; 1' No unnecessary English-proficiency tests; 1' No height and/or weight requirements that discriminate against certain nationalities.

1985

1980

 $$ Written affirmative action plan.  (6 Affirmative action plan; (6 Recordkeeping of the impact of hiring and evaluation procedures by race and gender.

1975

 5' Leave policy must allow absences for religious holidays (if not undue burden).  5' Leave policy must allow absences for religious holidays.

1970

 6' Seniority policy must be gender-neutral; 6' Job postings cannot mention gender.

Figure 8.10. Organizational structures in EEOC guidelines. Note: AA refers to the guidelines on affi rmative action; ES refers to the guidelines on employee selection procedures; ND refers to the guidelines on discrimination because of national origin; RD refers to the guidelines on discrimination because of religion; SD refers to the guidelines on discrimination because of sex.

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mentioned in the EEOC guidelines. The column on the left shows guidelines that place nondiscrimination constraints on organizational structures. Early guidelines, for example, required employers to remove explicit differences on the basis of race or gender from seniority policies, job postings, leave policies, and testing requirements but did not recommend or require organizations to have those structures in place.100 The column on the right shows structures that the EEOC recommends. The EEOC guidelines fi rst mentioned symbolic structures explicitly designed to reflect attention to civil rights laws in 1979, when the Uniform Guidelines on Employee Selection Procedures addressed voluntary affi rmative action plans (which were already quite common among organizations). Probably motivated by the 1978 Supreme Court decision in Regents of the University of California v. Bakke,101 the EEOC specified that Title VII was not meant to preclude, and, in fact, should be interpreted to encourage, voluntary affi rmative action. The 1979 Uniform Guidelines on Employee Selection Procedures specify that an affi rmative action plan should include job analyses, goals, and timetables designed to correct deficiencies as well as written plans designed to implement those goals and timetables. But the guidelines do not require affi rmative action plans and, in fact, go into considerable detail regarding the potential risks of plans that are not carefully tailored to address deficiencies shown by job analyses.102 There were no explicit references to antiharassment policies or grievance procedures in the EEOC guidelines until 1999, well after these structures were common among organizations and after the lower federal courts had begun deferring to them. The 1980 EEOC Guidelines on Discrimination Because of Sex foreshadowed the 1999 change, although they did not explicitly call for antiharassment policies or grievance procedures. After specifying for the fi rst time that sexual harassment violates section 703 of Title VII,103 the 1980 guidelines offered the following advice: Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affi rmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.104

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Although this language did not explicitly mention policies or grievance procedures, I have already shown that many employers interpreted the language to encourage those structures, as did the lower courts. It was not until 1999, following the 1998 Faragher and Ellerth decisions, that the EEOC revised its guidelines on sex discrimination to recommend these structures explicitly. The 1999 guidelines revoked section 11(c), which had provided that an employer was responsible for sexual harassment irrespective of the type of harassment and regardless of whether the employer knew or should have known about the harassment.105 That section was replaced with a reference to the EEOC Compliance Manual. Pursuant to Faragher and Ellerth, the EEOC Compliance Manual imposed a negligence standard as the minimum baseline and a vicarious liability standard for supervisors, subject to an affi rmative defense. The negligence standard specified that the employer is responsible for the acts of agents and supervisory employees106 if the employer knew or should have known about the harassment, while the vicarious liability standard made employers automatically liable for supervisors’ harassment unless the employer could use the affi rmative defense. The June 1999 revision of the manual elaborates both standards and explicitly recommends both a policy banning sexual harassment and an effective grievance procedure:107 The fi rst prong of the affi rmative defense requires a showing by the employer that it undertook reasonable care to prevent and promptly correct harassment. Such reasonable care generally requires an employer to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.108

It seems clear, then, that the EEOC advised employers to create antiharassment policies and grievance procedures long after these structures were commonplace in organizations, and that the EEOC supported judicial deference to these procedures many years after lower courts began deferring to them in EEO cases. I did fi nd several other EEOC documents that mentioned antiharassment policies and grievance procedures as early as 1990.109 Based on the amicus briefs discussed in the previous section, it does appear that the EEOC influenced the Supreme Court in Meritor, Faragher, and Ellerth. It is clear, however, that the EEOC itself was following the lead of organizations and compliance professionals.

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Symbols and Substance at the EEOC The EEOC does differ from the courts, at least in its official position, when it comes to emphasizing substance over symbols. Consistent with the EEOC’s emphasis on effectiveness in the amicus briefs it submitted in the Meritor, Faragher, and Ellerth cases, the 1999 EEOC Compliance Manual makes clear that the mere presence of antiharassment policies should not, in and of itself, protect employers from liability. There are no “safe harbors” for employers based on the written content of policies and procedures. Even the best policy and complaint procedure will not alone satisfy the burden of proving reasonable care if, in the particular circumstances of a claim, the employer failed to implement its process effectively. If, for example, the employer has an adequate policy and complaint procedure and properly responded to an employee’s complaint of harassment, but management ignored previous complaints by other employees about the same harasser, then the employer has not exercised reasonable care in preventing the harassment. Similarly, if the employer has an adequate policy and complaint procedure but an official failed to carry out his or her responsibility to conduct an effective investigation of a harassment complaint, the employer has not discharged its duty to exercise reasonable care. Alternatively, lack of a formal policy and complaint procedure will not defeat the defense if the employer exercised sufficient care through other means.110

The manual goes on to state minimum standards for an antiharassment policy and complaint procedure. An antiharassment policy and complaint procedure should contain, at a minimum, the following elements: •

A clear explanation of prohibited conduct;

•

Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;

•

A clearly described complaint process that provides accessible avenues of complaint;

•

Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

•

A complaint process that provides a prompt, thorough, and impartial investigation; and

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Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.111

The formal EEOC guidelines, then, give the courts no reason to assume that the mere presence of symbolic structures should afford an employer legal protection. Yet a recent study suggests that the EEOC does not follow its own guidelines when negotiating consent decrees. Margo Schlanger and Pauline Kim examined a representative sample of 262 systemic discrimination cases fi led from 1997 to 2006 by the EEOC in federal court, of which 87 percent ended in settlement. The remedies obtained by the EEOC largely mirrored what compliance professionals had been recommending for years, including policies banning discrimination and harassment, grievance procedures, EEO training, and posting notices. Only 9 percent of the cases included outcome goals, and, even in those cases, the goals were often broad and rarely required a manager to evaluate whether the goals were achieved.112 Most of the remedies also included provisions that organizations generate data about complaints or reported incidents of discrimination or harassment, but relatively few provided any form of accountability for poor numbers or failure to improve.113 Schlanger and Kim drew the following conclusion: [T]he remedies obtained by the EEOC are geared more towards rationalizing the fi rm’s employment practices than transforming its culture and norms. They impose practices that would be entirely familiar to fi rms with wellfunctioning human resource departments that have adopted professionally endorsed “best practices” for compliance with the law.114

Thus, although the EEOC guidelines emphasize that organizational structures must be effective, EEOC consent decrees appear to equate symbolic structures with civil rights compliance with little emphasis on effectiveness. In this sense, the EEOC, like the courts, appears to be deferring to symbolic structures.

On Ideals, Tools, and Legal Endogeneity Civil rights are ideals that highlight the value of nondiscrimination and equality on the basis of race and gender. Symbolic structures are tools designed to achieve those ideals or, in some cases, to demonstrate atten-

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tion to those ideals even in the absence of meaningful change. I have shown in this chapter that judicial deference evolved initially in the lower courts. Since the mid-1960s, the courts have become increasingly likely to treat symbolic structures not only as tools that may potentially protect employees’ civil rights but also as the achievement of civil rights ideals. Judicial deference to symbolic structures became increasingly common between 1965 and 2014. Based on my sample, by 2014, courts were deferring to at least one symbolic structure in about two-thirds of district court opinions and almost half of circuit court opinions. The Supreme Court did not endorse judicial deference until 1998, long after it had become common in the lower federal courts. In the Faragher and Ellerth cases, with the encouragement of the EEOC, the Supreme Court endorsed deference to symbolic structures in sexual (and racial) harassment cases except where an employee suffers economic consequences for failing to comply with a supervisor’s demands. In Vance v. Ball State University in 2013, the Supreme Court expanded the circumstances under which symbolic structures might offer protection by narrowing the defi nition of a supervisor, which made it easier for employers to avail themselves of the Faragher-Ellerth affi rmative defense.115 Although I have focused on legal deference to symbolic structures in the context of courts and the EEOC, at least one state has put deference to symbolic structures on the legislative agenda. In 2015, SB1012 and HB684 were introduced in both houses of the Hawaii State Legislature. The proposed legislation would mandate that all employers implement antidiscrimination and antiharassment procedures that include grievance procedures and would create an exemption from liability for employers based on those structures not just for sexual harassment but also for workplace discrimination in general. The bills were referred to committee but did not reach a full vote during the 2015 session; the legislation may be reintroduced.116 Given the increasing acceptance of symbolic structures, it would not be surprising to see other efforts to enact statutory protections for employers based on these structures. Many organizations do take civil rights law seriously and have created structures that are not merely symbolic but are actually effective. In part because of these effective symbolic structures, the types of overt discrimination that prevailed in the 1960s are far less common today. But in many other organizations, symbolic structures exist alongside practices that systematically favor whites and males over minorities and women, and favor those minorities who perform whiteness through

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their dress, behavior, and social networks over those who do not. Legal endogeneity makes it less likely that courts will distinguish between symbolic structures that effectively mitigate discrimination and those that do not. To the extent that legal institutions defer to organizations’ symbolic structures even when those structures are ineffective, law in essence condones discrimination.

CHAPTER NINE

Symbolic Civil Rights and the Endogeneity of Law

F

ifty years after the most significant civil rights legislation ever was passed, we live not in a post– civil rights society but rather in a symbolic civil rights society. Employers today sing the praises of diversity and inclusion and prominently display their antidiscrimination policies, yet skin color and gender still dramatically shape employees’ experiences and possibilities at work. Certainly, antidiscrimination laws have engendered major changes in the American workplace, many of which have offered new opportunities for men and women of color and white women. But more than five decades after Title VII went into effect, substantial discrimination and inequality persist. White men still disproportionately enjoy the highest status and highest-paid positions in organizations;1 sexual and racial harassment are still commonplace; minorities continue to face pressures to cover their identities if they wish to succeed in the workplace; women are penalized both for fitting and for failing to fit gender stereotypes;2 and the barriers to success are especially high for women of color. 3 Racial segregation in the workplace is greater today than it was in 2000 and sex segregation has not improved since then.4 Legal endogeneity theory helps to explain why civil rights law has not ended racial and gender inequality at work. Faced with contradictory legal and business ideals, organizations developed a means of working law through symbolic compliance, ultimately shaping the meaning of law in courts, administrative agencies, and even legislatures. Many of the symbolic structures that organizations have created over the past half century do constrain bias and provide a means for employees to assert their legal rights. These structures have helped to rationalize workplace gov-

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ernance and to make the most egregious and overt forms of discrimination less common than they were when Title VII was passed. In numerous workplaces, however, managerialization has rendered symbolic structures empty symbols that help organizations to appear rational and legal yet coexist with widespread discrimination and inequality. Internal dispute resolution structures make organizations seem fairer even when complaint handlers reframe law, complaints, and remedies in managerial terms that undermine employees’ legal rights. Antidiscrimination policies, programs, and procedures give the impression of a commitment to eliminating racial and gender bias even when organizations maintain informal practices that systematically disadvantage women and minorities, use predispute mandatory arbitration agreements to preclude employees from suing for rights violations, or manage risk through employment practices liability insurance rather than through the elimination of bias. Managerial rhetoric that subtly transforms a legal obligation to avoid racial and gender discrimination into a vague and malleable commitment to diversity and inclusion further weakens the substantive impact of organizations’ symbolic structures. In our symbolic civil rights society, symbolic structures have become widely regarded as legitimate responses to civil rights legislation irrespective of their effectiveness, engendering a managerialized legal consciousness in which compliance professionals, employers, employees, and even lawyers and judges begin to understand symbolic structures not simply as a means to achieve civil rights but rather as the achievement of civil rights. And legal institutions—especially courts—have come to formally endorse symbolic structures as civil rights compliance. Courts too often fail to scrutinize whether symbolic structures actually protect employees’ legal rights, instead treating their mere presence as compliance with EEO law. The EEOC guidelines recommend effective symbolic structures, yet the EEOC enters into consent decrees that include few substantive guarantees. Some state legislatures, moreover, are considering laws that would absolve companies of liability for civil rights violations based on the mere presence of symbolic structures. When symbolic structures adequately protect employees’ civil rights, then legal deference to those structures is not only unproblematic but advances the ideals underlying civil rights law. But when courts—as well as other legal institutions—rely on myth and ceremony, inferring nondiscrimination from the mere presence of symbolic structures, rights themselves become merely symbolic. More generally, when legal institutions

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adopt meanings of law and compliance that evolve within organizations and organizational fields, law becomes endogenous. Although my analysis has focused on the impact of legal endogeneity for men and women of color and white women, legal deference to symbolic compliance also harms people with disabilities and those in the LGBT community, religious minorities, older employees, and many other groups. Symbolic attention to civil rights extends beyond the workplace, moreover, to other arenas of social life, including education, healthcare, the media, sports, the military, the arts, and criminal justice. Legal endogeneity is certainly not the only explanation for inequality on the basis of race, gender, sexual orientation, religion, age, and disability in all these venues, but it helps to explain the limited success of civil rights laws.

Policy Implications of Legal Endogeneity Sociologists Alexandra Kalev, Frank Dobbin, and their colleagues have begun to explore the characteristics of compliance structures that make them more or less effective. 5 While the results of their work should prove very useful both to policymakers and compliance professionals, fi ndings about the effectiveness of various types of EEO or diversity structures in the aggregate cannot and should not be used by courts in the context of particular disputes. Structures that succeed in one organization, or even in most organizations, will not necessarily be effective in the situation at stake in a particular lawsuit. The solution from a judicial standpoint must lie in a legal regime that does not mistake merely symbolic compliance for substantive compliance. Such a legal regime would require that judges consider whether the structures invoked in a particular case in fact worked to preclude discrimination. Is such a legal regime within the realm of possibility? The answer to that question is unclear. In the sections below, I outline steps that various parties to the legal system might take to ensure that judges adequately evaluate the effectiveness of symbolic structures, and more generally, that employers implement symbolic structures that effectively protect employees’ rights to a nondiscriminatory workplace. I also explain, however, why I am not optimistic that these steps will be taken. I should note that there are several possible directions for reform that would likely be effective but are almost certainly politically infea-

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sible. One such direction would be to revise antidiscrimination legislation and administrative regulations so that they unambiguously require substantive results. This approach would treat as suspect any workforce that was, relative to the available labor pool, disproportionately white or male. This approach, however, would almost certainly be rejected as requiring quotas. A less radical approach might build on the now weakened disparate impact doctrine (discussed in chapter 3) by invalidating any type of organizational practice that produced a disproportionately white or male workforce, irrespective of whether the plaintiff(s) could prove that the employer intended to discriminate. As is evident from the decline of disparate impact doctrine, however, such a solution is also unlikely to be politically feasible. Rather than dwelling on legal reform options that would have virtually no chance of succeeding in the current political climate, I draw on my recent work with Linda Krieger and Rachel Best6 to offer a more modest set of proposals for what judges, plaintiffs’ lawyers, management lawyers and other compliance professionals, and policymakers might do within the current legal regime to bring about substantive as opposed to merely symbolic compliance. Recommendations for Judges When judges defer to symbolic structures without evaluating their efficacy in achieving the goals of civil rights law, they usually do so inadvertently. This is clear, in part, because, although judicial deference tends to benefit employers over employees, liberal judges defer even more than conservative judges. Judicial deference, at least in most cases, occurs not because judges knowingly defer to ineffective structures but rather because the widespread association of organizations’ symbolic structures with civil rights primes judges to see organizations that have these structures in place as rational and nondiscriminatory. The presence of symbolic structures, in other words, creates an illusion of fairness with respect to the treatment of women and minorities.7 The solution requires judges to engage in more careful scrutiny of organizations’ symbolic structures to avoid the erroneous assumption that the mere presence of symbolic structures indicates nondiscrimination. Judges should consciously guard against the tendency to infer nondiscrimination, or even a good faith effort to comply, from the mere presence of antidiscrimination policies, diversity training programs, grievance procedures, or other personnel structures. This caution is

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particularly important in two contexts. First, in motions for summary judgment in which the legal standard prohibits judges from drawing inferences against the nonmoving party, judges should be aware that the failure to scrutinize symbolic structures may result in drawing inferences that harm employees, who are almost always the nonmoving party. Second, in disparate treatment cases in which judges must evaluate plaintiffs’ claims that employers’ legitimate nondiscriminatory reasons are really a pretext for discrimination, judges must be aware that the mere presence of symbolic structures should not give rise to an inference of nondiscrimination. In all cases, but particularly in these contexts, judges should realize that discrimination and harassment often coexist with formal policies that prohibit those actions, with public proclamations of diversity and inclusion, and with diversity or sexual harassment training programs. Judges should understand that the sources of discrimination may be located in the structure of organizations, as is the case when women or minorities are disproportionately hired into positions that carry lower salaries and diminished opportunities for advancement; when subjective decision-making criteria favor whites over minorities and men over women; when supervisory discretion appears to favor the hiring or promotion of whites and men over minorities and women; when informal practices put minorities who fail to associate primarily with whites or to act according to accepted behavior standards for whites at a disadvantage; and when diversity commitments become so generic that they fail to benefit those who have been disadvantaged. Judges need to exercise particular care to be alert to organizational practices that disadvantage black women or other intersectional groups or that favor minorities who “act white”8 over those who do not. Judges, in short, should exercise skepticism when drawing inferences from the presence of structures that appear to signal compliance. Recommendations for Plaintiffs’ Lawyers Although judges are ultimately responsible for making decisions involving the significance of symbolic structures, plaintiffs’ lawyers are in the strongest position to ensure that judges do not draw erroneous inferences of organizational rationality and compliance from the presence of ineffective symbolic structures. Plaintiffs’ lawyers should therefore take great care to point out the inadequacies of these structures in

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the context of any particular case. Plaintiffs’ lawyers should deploy resources toward discovery to discern whether organizations are complying with their own internal policies; whether organizations’ informal cultures belie commitments to diversity; whether grievance procedures are adequately communicated to employees and provide a genuine opportunity for redress; and, more generally, whether organizations’ symbolic structures effectively combat not only overt discrimination but also the many structural inequalities and implicit biases that systematically disadvantage women and minorities. Especially in the context of motions for summary judgment or judgment as a matter of law, or appeals of rulings on those motions, plaintiffs’ lawyers should emphasize that inferring fair treatment from symbolic structures without adequate scrutiny violates the rule that judges should not draw inferences against the nonmoving party. Plaintiffs’ lawyers should be especially careful in hostile work environment harassment cases to point out any deficiencies in organizations’ antiharassment policies or grievance procedures. Although the 1998 US Supreme Court decisions in Faragher and Ellerth9 made antiharassment policies and grievance procedures an affi rmative defense to allegations of hostile work environment harassment, plaintiffs’ lawyers should, where appropriate, challenge the presumption that these structures meet the employer’s responsibility to take appropriate steps to avoid harassment in the case at hand. The presence of a policy may coexist with a practice that belies the employer’s good faith efforts, and the operation of the grievance procedure may be so corrupt or ineffective that the employee reasonably chose not to use it. Plaintiffs’ lawyers, in short, should actively contest the assumption that the mere presence of symbolic structures indicates an absence of illegal discrimination. For similar reasons, plaintiffs’ lawyers should avoid turning away potential clients simply because the company appeared to take action to prevent harassment or because the potential client failed to make use of an internal grievance procedure without fi rst determining whether these structures might be challenged as inadequate. Recommendations for Management Lawyers and Other Compliance Professionals Management lawyers and other compliance professionals are generally well aware of the value of symbolic structures for reducing an organiza-

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tion’s risk of liability. Especially where organizational leaders are genuinely committed to the ideals of civil rights, management lawyers and other compliance professionals should go much further than simply advising their clients to put policies, procedures, and training programs in place. They should recognize that formal policies alone will do little to combat cultures that promote harassment and discrimination, implicit biases and decisions based on inaccurate stereotypes, and subjective hiring and promotion practices that incorporate gendered or racially biased notions of leadership or professional potential. To render symbolic structures effective, management lawyers and other compliance professionals should encourage employers to make supervisors responsible for substantive results; that is, for ensuring that women and minorities are fairly represented at all levels of the organization and paid equally to white men who have similar responsibilities. Employers’ policies, procedures, and programs should be regarded as inadequate unless they produce substantively fair results. Compliance professionals within organizations should be particularly aware that because minorities and women often face subtle pressures and harassment in the workplace, it is incumbent on employers to monitor their workplaces for developments that put these groups at a disadvantage. In short, management lawyers and compliance professionals should encourage substantive, as opposed to merely symbolic, compliance. Recommendations for Policymakers Policymakers, including the Equal Employment Opportunity Commission, Office of Federal Contract Compliance, state administrative agencies, and legislatures at all levels should be cautious about rules and administrative guidelines that encourage or incentivize employers to create formal policies, practices, or programs. Whenever such structures are encouraged or required, policymaking bodies should include clear language specifying that these structures may be means of achieving compliance with EEO laws but must be effective to provide protection from liability. Policymakers also should include substantive and tangible metrics of compliance to ensure that these structures are not merely symbolic indicia of compliance but instead advance the ideals of EEO laws. Similarly, consent decrees and other settlements should avoid language that would promote merely symbolic compliance.

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Further, policymakers should be skeptical of the “new governance” approach, which fi nds many advocates among legal scholars. New governance scholars advocate various forms of organizational structures and self-governance in lieu of top- down regulation.10 These scholars often recommend precisely the types of symbolic structures that I have called into question in this book, such as diversity training programs, grievance procedures, ethics codes, and internal dispute systems. Under new governance approaches, legal rules would, by design, be less rigid, less prescriptive, and more committed to organizational self-governance.11 New governance scholars would move the locus of regulation to organizations, arguing that organizations have better internal mechanisms for identifying and remedying problems particular to the workplace or industry. The problem with the new governance approach is that it does not take into account the potential for organizations to engage in symbolic compliance and to managerialize the law in ways that render it more consistent with business goals and less consistent with legal goals. Most new governance approaches advocate that judges should officially refrain from engaging in rigorous scrutiny of the effectiveness of organizational structures. This approach would likely encourage ineffective symbolic compliance.12 Instead, policymakers should emphasize the need for judges and administrative agencies to scrutinize the substantive impact of symbolic structures and to build tangible metrics for measuring substantive compliance into administrative guidelines. Reasons for Skepticism and Hope There is, to be sure, a tension between the pessimistic tenor of this book and these recommendations, which suggest that change is possible. Of the recommendations I have discussed above, those that pertain to judges and plaintiffs’ lawyers are most critical to changing the tendency of judges to defer to organizations’ symbolic structures without adequate scrutiny. Although there are reasons for hope, my analysis shows that there are substantial obstacles to implementation of these recommendations. Organizations’ symbolic structures have come to be so associated with civil rights compliance that it will take a sea change to effect meaningful scrutiny of these procedures. The widespread diffusion of symbolic struc-

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tures, which I discussed in chapter 5, has imbued these structures with an aura of legality and rationality, rendering the symbolism of these structures nearly too powerful to challenge. It is not only compliance professionals and management lawyers who regard symbolic structures as tantamount to the achievement of civil rights; most lawyers and judges, and many academics,13 also hold that view. The experimental evidence that I presented in chapter 7, moreover, shows that the symbolism of diversity structures is so powerful that it causes all of us to overlook evidence of discrimination and inequality. The symbolic power of organizational structures, therefore, creates a presumption that will be very difficult for plaintiffs’ lawyers to challenge successfully and for judges to overcome. Moreover, the conservative legal trends that I discussed in chapter 3 suggest both a growing impatience on the part of the judiciary with cases alleging discrimination, as indicated by the increasing disposal of EEO cases through motions to dismiss and summary judgment, and an increasing reluctance to attribute organizational inequality on the basis of race or gender to discrimination. Whereas in the 1960s and 1970s, race- and gender-based inequalities in organizations were assumed to be the result of discrimination, today the presumption is that organizations are fair and that discrimination is a rare and aberrant condition. For judges to take seriously the possibility that organizations’ symbolic structures might be obscuring discrimination would require a skepticism that would be out of character with the general trends that have characterized EEO law over the past few decades. Finally, the managerialization processes that I discussed in chapter 6 are subtle and not easily visible to employees, plaintiffs’ lawyers, or judges. Even when plaintiffs’ lawyers actively seek to counter the judicial tendency to presume that symbolic structures indicate nondiscrimination, they cannot easily access the inner workings of organizations to show that internal dispute resolution is not well structured to discover and correct discrimination, that decoupling of formal policies and informal practices permits discrimination to operate, that organizations in some cases devote more attention to navigating around legal risk than to correcting practices that create legal risk, and that the managerial rhetoric of diversity often does little to correct race and gender inequality. Organizations are complex entities that can easily obscure discrimination. While these factors lead me to be skeptical that change will occur, my hope is that by revealing the realities that underlie organizations’ sym-

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bolic structures, this book may motivate plaintiffs’ lawyers to challenge the presumed efficacy of those structures and motivate judges to exercise greater scrutiny when employers point to those structures as evidence of nondiscrimination. On both these points, there is reason for optimism. Plaintiffs’ lawyers are best positioned to challenge ineffective symbolic structures, and doing so is consonant with their clients’ interests. Many plaintiffs’ lawyers, moreover, are strongly committed to the ideals of civil rights law. Plaintiffs’ lawyers might win more cases and effect greater social change by highlighting the processes of managerialization in organizations and by reminding judges that they should not equate symbolic structures with EEO compliance irrespective of their effectiveness. By disrupting the heuristic that organizations’ symbolic structures constitute EEO compliance, plaintiffs’ lawyers might be more successful at proving pretext in disparate treatment cases and in challenging the Faragher-Ellerth affi rmative defense in hostile work environment harassment cases. Further, when judges defer to organizations’ symbolic structures, they most likely do so unwittingly. Judges would presumably avoid deferring to ineffective structures if they were more aware of their tendency to defer and had adequate information about particular structures at stake in the cases that they are deciding. This would seem to be true especially in summary judgment decisions, in which the legal standard prohibits judges from drawing inferences against the nonmoving party. Since the vast majority of EEO cases in the district courts now involve motions by the employer for summary judgment, efforts by plaintiffs’ lawyers to point out how organizations’ symbolic structures lead judges to draw inferences that favor employers would seem to have the potential to elicit greater caution on the part of judges. In sum, there is a clear path to reducing judicial deference to ineffective symbolic structures. It relies on both plaintiffs’ lawyers and judges, but both would seem strongly motivated to reduce judicial deference where organizations’ symbolic structures undermine EEO ideals.

Legal Endogeneity in Other Policy Arenas Although I have developed and illustrated legal endogeneity theory in the context of EEO law, scholars have begun to explore its relevance to

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other regulatory arenas as well, both within and outside of the US legal context. Their work suggests that legal endogeneity may be operating in contexts including consumer regulation;14 insurance regulation;15 welfare regulation;16 tax incentives for employer-sponsored childcare;17 insider trading laws;18 international environmental management standards;19 tax regulation;20 antitrust in the fi lm industry; 21 fi nancial derivatives; 22 nonprofit healthcare regulation;23 the medical education field;24 employers’ use of criminal background checks;25 school sexual harassment policies;26 prison rape regulation;27 privacy; 28 and restaurant hygiene regulation. 29 Outside of the US context, legal endogeneity has been explored in the context of Canadian wrongful dismissal doctrine, 30 Australian labor law, 31 and British fi nancial service regulation. 32 Yet, studies of legal endogeneity in other contexts have not explored the full cycle of legal endogeneity that I have developed in this book. Most of these analyses explore the development of symbolic compliance or the ways in which legal institutions follow traditions that develop within organizations. Further research might explore how the cycle of legal endogeneity that I have demonstrated in the context of EEO law operates in these contexts. To better illustrate how legal endogeneity might operate in spheres outside of employment law, I discuss two specific contexts: fi nancial regulation and prison governance. My goal here is simply to show that at least some literature in this field is suggestive of legal endogeneity. I leave the question of whether legal endogeneity is, in fact, operating in these two areas to scholars with greater expertise in these fields of study. Legal Endogeneity in Organizational Misconduct Based on extant studies in the area of corporate misconduct and risk management, it appears that legal endogeneity may be operating with respect to corporate ethics codes. 33 Until fairly recently, the law regarding organizations’ responsibility for fi nancial fraud or other misconduct by employees was governed by the broad doctrine of respondeat superior, meaning that the employer may be held strictly liable for the criminal acts of an employee. 34 Under this doctrine, efforts by an organization to avoid such behavior by employees should not be relevant to liability; rather, employers are legally responsible irrespective of any good faith efforts to prevent fi nancial misconduct by their agents. 35 In addition to the potential for criminal liability, organizations may also be held lia-

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ble under civil law when they are sued by shareholders for breach of fiduciary duty. 36 Despite the fact that under the doctrine of respondeat superior, symbolic structures designed to demonstrate attention to law should have been legally irrelevant, organizations began to adopt various symbolic structures related to fi nancial misconduct, in particular written ethics policy statements and codes of ethics. The structures appear to have originated prior to the 1960s but became steadily more prevalent throughout the 1970s and 1980s, with a spurt of growth in the 1990s. 37 In a survey conducted in 1995, 98 percent of responding fi rms reported that they had some sort of formal ethics structure, and 78 percent reported that they had formal ethics codes. The survey also found that 30 percent of fi rms had specific departments or offices created to deal with ethics issues, and that 63 percent of those structures were created in the 1990s. Compliance professionals, practitioner associations, and the business news media contributed to the diffusion of these structures. 38 As these codes became more common, the notion of strict liability appears to have given way to a standard in which ethics codes offered fi nancial organizations some protection from liability. During the mid1980s, there was a scandal among defense contractors involving allegations of fraud, overbilling, and kickbacks against fi fty-five government contractors. These fi rms entered into an agreement called the Defense Industry Initiative (DII), in which they agreed to adopt written ethics codes, to create ethics officer positions, to conduct ethics training for employees, to provide a procedure for employees to report compliance violations, to disclose violations voluntarily, to participate in forums regarding best practices, and to commit publicly to all these changes. 39 In 1991 the US Sentencing Commission created the Organizational Sentencing Guidelines (OSG).40 These guidelines did not explicitly require ethics codes, but they did create a culpability score, which provided for significantly reduced penalties for organizations that had in place an “effective program to detect and prevent violations of the law”41 and “self-reporting, cooperation, and acceptance of responsibility.”42 The guidelines were vague, advising organizations to follow the “applicable industry practice or standards.”43 Although the OSG did not initially require ethics codes or written ethics policy statements, it appears that many compliance professionals advised organizations to create these structures as a means of reducing the risk of liability.44

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Other legal bodies began to reinforce the idea that internal compliance structures were valuable in deterring corporate fi nancial misconduct. A 1996 civil case in the Delaware Court of Chancery, In re Caremark,45 took on particular significance because so many US companies are registered in Delaware. The case involved a shareholder suit against the company’s board of directors for breach of fiduciary duty. The court exonerated the board of directors because they had set up an ethics and compliance reporting system even while it levied $250 million in fi nes and other penalties against the company itself. The Caremark case also appears to have spurred compliance professionals to advise companies to set up ethics codes and reporting systems.46 After Caremark, law reviews published many articles on ethics compliance, and consulting fi rms created websites devoted to explaining how to comply with the organizational guidelines, many of which called attention to the value of ethics codes.47 In 1999 the Department of Justice adopted a policy that gave even more deference to fi rms that had adopted internal compliance programs. Eric Holder, then the deputy attorney general, issued a memorandum to federal prosecutors that encouraged them to consider whether a fi rm had created a corporate compliance program designed to prevent and to detect misconduct when deciding whether to prosecute.48 Following that memo, prosecutors increasingly chose not to prosecute, especially if the fi rm reported the crime and cooperated, even if the fi rm could have been held liable through respondeat superior.49 Further, federal prosecutors regularly enter into deferred prosecution agreements in cases involving illegal business activities such as accounting or securities fraud. The agreements often involve little more than symbolic compliance, requiring the creation of internal codes but rarely calling for independent supervision or even firm monitoring of compliance, and almost never involving penalties for ineffective internal compliance. 50 The Sarbanes- Oxley Act of 2002 (SOX), passed in the wake of the business failures from 1998 through 2001, explicitly required organizations to disclose their ethics codes or disclose why they are not disclosing an ethics code, thus legally endorsing symbolic structures. 51 The SOX ethics code requirement, in turn, triggered regulation by the Securities and Exchange Commission (SEC), which added further requirements with respect to corporate ethics codes. 52 The New York Stock Exchange and NASDAQ also mandated that all companies listed on the exchanges have a public code of ethics beginning in 2004. 53

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Despite the increasing endorsement of internal compliance structures by the US Sentencing Commission, Congress, the SEC, federal prosecutors, and the courts, multiple studies suggest that ethics codes are often more symbolic than substantive. A 1995 survey of large corporations found that organizations devoted little attention or resources to their formal ethics structures. 54 A 1999 analysis by the same authors concluded that many ethics programs were easily decoupled from organizations’ business activities, especially when there was a lack of commitment to ethics among top management. 55 A 2008 study found that although SOX specifically states that each company should develop its own code tailored to its unique ethics challenges, the role of consulting fi rms in developing ethics codes resulted in a fair amount of similarity across fi rms. The authors concluded that form triumphed over substance and that these codes were so generic in nature that they became meaningless and ineffective. 56 A 2010 study of two hundred randomly selected fi rms found that fi rms adopted vague, watered- down ethics codes and frequently violated their own codes. 57 And a 2012 study of codes of ethics found that most ethics codes converged around two templates, which tended to use nebulous and legalistic boilerplate language. The authors concluded that codes’ wording is too vague to constrain the behavior of employees. 58 Kimberly Krawiec labeled these structures “cosmetic compliance”59 and concluded that the US legal regime for evaluating organizational crime has, in effect, “adopted a costly ‘safe harbor’ that allows organizations to evade liability for organizational misconduct, so long as they have adopted internal compliance structures.”60 Further research would be necessary to determine the precise parameters of legal endogeneity in the fi nancial misconduct context, but the studies I have discussed in this section are suggestive of a pattern somewhat like what I have described in the EEO context. It appears that organizations responded to a vague threat of liability by creating symbolic ethics structures, even though those structures would not protect organizations from liability under the doctrine of respondeat superior. Over time, regulatory agencies, legislatures, and courts, as well as the stock exchanges, began to incorporate those structures into the legal calculus of corporate responsibility. As in the EEO context, research suggests that even though these structures are frequently merely symbolic, they have come to significantly reduce the risk of liability for organizations that have them in place.

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Legal Endogeneity in Prison Governance Scholars who write about prison governance have offered accounts that illustrate how models developed within prisons were adopted by courts and legislatures.61 Scholarly accounts vary on whether prisons complied with reform efforts substantively or merely symbolically. Some accounts emphasize judicial activism and creativity in extracting and overseeing substantive reforms; others emphasize judicial deference to symbolic compliance on the part of prisons. In all accounts, however, models of reform appear to originate largely within organizational fields. In the remainder of this section, I discuss the evolution of prison condition litigation generally; and then I discuss the operation of internal prison grievance systems, one of the outcomes of prison condition litigation. Prior to the 1960s, many state prisons had inadequate medical services, unsanitary conditions, harsh working conditions for inmates, inadequate protection of inmates against violence from other inmates, severe corporal punishment, and rampant racial discrimination and segregation.62 Prisoner complaints were common, but the courts maintained a laissez-faire approach.63 In their extensive history of the prison reform movement, Malcolm Feeley and Edward Rubin64 argued that beginning in the 1960s, some judges adopted an activist policymaking stance. They documented how judges worked with reform-minded litigators and corrections professionals to challenge some of the state prison systems with the worst conditions, notably southern prisons, beginning with those in Arkansas and Texas. Many lawsuits began as challenges by individual prisoners, but litigators often combined and expanded them into class actions that lasted decades. In the early cases challenging prison conditions, judges embraced the Eighth Amendment prohibition against cruel and unusual punishment, section 1983 of the Civil Rights Act of 1871, and precedent in nonprison cases to engage in progressive policymaking. By 1975 courts had declared prison systems unconstitutional in more than thirty jurisdictions. Feeley and Rubin’s account showed how legal endogeneity can buttress substantive compliance instead of condoning merely symbolic compliance. The meaning of law was shaped by organizational fields since judges relied on standards that had been devised by corrections professionals and adopted by prisons. The American Correctional Association (ACA), a voluntary association of prison administrators founded in 1870, published its Manual of Correctional Standards in 1946, which was

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revised in 1959 65 to include a chapter on the legal rights of prisoners. That manual, as well as standards articulated by the federal Bureau of Prisons (BOP), created in 1930 to supervise the federal prisons, became key resources for the litigators and judges who sought to reform the corrupt state prisons. Feeley and Rubin found that when judges actively held prisons to the ACA standards, substantive reform ensued. With the help of special masters (authorities appointed by judges to make sure that judicial orders are carried out) and reform- oriented litigators, activist judges monitored compliance and challenged noncompliance with ACA standards. They pointed to the federal prison system as a model of good prison governance to seek reforms in state prison systems with egregious conditions. Judges also drew on the expertise of the ACA, the BOP, and former corrections officials as well as experienced lawyers to serve as expert witnesses; and they appointed special masters, often with backgrounds in prison administration, to monitor prison conditions and compliance on the ground. The special masters served as fact fi nders, mediators, and advisers to the court,66 which allowed judges to reach far into prison administration to combat recalcitrance and to challenge continuing violations.67 A broad range of professional associations that served prisons, including the American Medical Association, the American Bar Association, and the Society of Refrigerating and Heating Engineers, joined the ranks of compliance professionals to develop new standards for prison settings.68 Federal agencies such as the Law Enforcement Assistance Administration, the US Department of Justice, the National Institute of Corrections, and the US Public Health Service helped to promulgate these standards, in part through funding exemplary programs.69 In 1980 Congress passed the Civil Rights of Institutionalized Persons Act (CRIPA) to establish federal standards for correctional institutions, although the Reagan administration let the act lie largely dormant.70 This example shows that when judges invoke substantive standards developed within organizational fields rather that deferring to compliance that is merely symbolic, legal endogeneity can advance social reform goals. Thus, Feeley and Rubin’s account of litigation over conditions in some of the most egregious state prison systems showed how legal deference to organizational standards, coupled with careful monitoring to ensure that the standards are met, can produce meaningful change. Other scholars, however, do point to legal deference to merely symbolic prison

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compliance, especially in later cases involving prison overcrowding and conditions in solitary confi nement. In a study of overcrowding litigation in Florida, for example, Heather Schoenfeld told a story of prison recalcitrance and symbolic compliance beginning in the 1970s and continuing over twenty- one years of litigation.71 The Costello v. Wainwright72 litigation in Florida began as a challenge to the brutal conditions at Florida State Prison, which included severe overcrowding and inadequate medical treatment. The court mandated a reduction in the prison population to “normal capacity.” But the Florida Department of Corrections complied more in symbol than substance by defi ning “capacity” as “maximum capacity” rather than “design capacity”; moving prisoners to temporary facilities; reducing the space per inmate; and normalizing the use of double bunking, which the special master characterized as “a good faith effort to comply.” 73 Eventually, the state legislature modified the prison capacity to allow for “design capacity plus one-half,” 74 which exemplifies legislative deference to prison practices. Joshua Guetzkow and Eric Schoon told a somewhat similar story based on a quantitative analysis of overcrowding litigation from 1971 through 1996 in forty-nine states. Their study showed that, rather than leading to an increased release of prisoners or prison- diversion programs that would have directly reduced prison crowding, overcrowding litigation led to increased funding for prisons. If increased funding had indirectly reduced prison overcrowding through prison construction, this would be a substantive impact of the litigation. But prison spending did not have a significant effect on prison overcrowding, even five years after the litigation.75 Courts that did achieve reform were likely able to do so because reform was in the interest of prison administrators as well as the reform-minded litigators and judges. Prison administrators in many cases supported the litigation brought against the prison system because it gave them leverage to secure more funds from their state legislatures and greater discretion to keep inmates confi ned for longer periods of time.76 Prison- conditions litigation often involves multiple issues, so it may be that the litigation led to improvements in areas other than overcrowding. Nonetheless, Guetzkow and Schoon’s work showed that judicial deference to merely symbolic compliance occurred in some prison- conditions litigation. Judicial deference to symbolic compliance seems even more evident in litigation over the constitutionality of solitary confi nement, especially in the modern supermax prisons that keep inmates in lockdown

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for twenty-three hours per day. Keramet Reiter explained how prison architects designed modern supermax prisons to meet the most minimalist standards set in previous litigation, and even navigated around those standards to devise conditions that were more repressive than had previously been the case, thus complying with the letter of the law while violating its spirit.77 In response to rulings by previous courts requiring adequate lighting in prison cells, for example, some supermax prisons began to use bright florescent lighting that was never turned off.78 Similarly, while meeting the minimal requirements articulated by courts for food, medical care, showers, and exercise, supermax prisons have engaged in practices such as long-term solitary confi nement with only a “dog run” for exercise, sensory deprivation through soundproof walls and doors, and little or no visitation. Reiter argued that even as human rights activists decry these practices as unconstitutional and some psychologists argue that they pose a risk to prisoners’ mental health, courts engage in only superficial analyses of whether prisons are complying with the legal standards and overlook substantial evidence regarding the harsh cruelty and detrimental mental health effects of such confi nement.79 Thus, Reiter suggested that, at least in litigation regarding the constitutionality of solitary confi nement in supermax facilities, judges defer to a form of merely symbolic compliance.80 Legal deference to symbolic compliance is even more apparent in internal prison grievance systems. As prison- conditions litigation gained traction in the 1960s, and as the civil rights movement of that era emphasized rights to due process, corrections departments throughout the nation began to create internal grievance procedures.81 As in the case of work organizations, corrections professionals advocated the creation of these procedures both as gestures of due process and as a way to avoid litigation.82 Concerned with the rise of prisoner complaints in the federal courts, the Chief Justice of the Supreme Court, Warren Burger, advocated the adoption of internal grievance procedures in a 1970 speech to the National Association of Attorneys General.83 In 1974 the Supreme Court articulated broad due process protections for prison inmates in Wolff v. McDonnell.84 In CRIPA in 1980, Congress mandated grievance procedures for all federal prisons and motivated state prison systems to adopt them by including a provision that required prisoners to exhaust any internal grievance systems before they could fi le a civil rights lawsuit if the state had applied to the Department of Justice and obtained certification that its grievance system was “plain, speedy, and effective.”85

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By 1983 all fi fty states had adopted some form of grievance procedures in their adult penitentiaries, 86 although fewer than half went through the burdensome process of having their systems certified to meet the exhaustion requirements. Despite the creation of prison grievance systems, many prisoners continued to fi le lawsuits in the federal courts. In response to a perceived crisis in which inmate lawsuits were clogging the courts, 87 the Prison Litigation Reform Act (PLRA) was enacted by Congress in 1996.88 The PLRA amended CRIPA and imposes significant restrictions on both prisoner litigants and federal judges. The PLRA eliminated the “plain, speedy, and effective” language. It mandates that inmates exhaust all administrative options within their corrections system before fi ling a cause of action in federal court; imposes fi ling fees on all inmates, including those who are indigent; precludes claims involving emotional injuries unless there is an accompanying physical injury; limits both damages and attorneys’ fees that might otherwise motivate attorneys to take cases; and penalizes prisoners who fi le multiple claims.89 Under the PLRA, federal judges are all but mandated to defer to prison grievance procedures.90 The California legislature adopted a comprehensive grievance procedure for prison inmates in 1973, which became a model that was subsequently adopted by other states.91 Under this system, inmates may appeal any departmental decision or action, conditions in prisons, or prison policies by fi ling an “Inmate/Parolee Appeal Form,” known as a “602” after that form number.92 The California Department of Corrections and Rehabilitation (CDCR) grievance system includes several levels of review, overseen by prison officials, an inmate appeals coordinator (IAC), and the warden within the prison where the grievance is initiated. In addition, a fi nal level of appeal is conducted by the Inmate Appeals Branch (IAB), which is located in Sacramento. Yet, as has been shown in several studies of prisoner appeals in the CDCR system, grievances in the prison context appear to be handled as little more than symbolic gestures toward due process.93 In their rich analysis of the appeals process, Kitty Calavita and Valerie Jenness showed that inmates use the grievance procedure extensively,94 but that it only rarely results in meaningful challenges to the authority of corrections officials. Although complaint handlers were, in general, sympathetic to the plight of prisoners, they viewed virtually all appeals as unwarranted and frivolous. At the lower levels of the appeals process, complaint handlers privileged the words of officers over

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inmates, and IAB members in Sacramento openly stated that they privileged the accounts of prison officials over inmates who appeal.95 Prison officials and complaint handlers alike see the prisoner appeals system more as a means of avoiding lawsuits than as a substantive commitment to prisoners’ due process rights. In the year 2005– 6, inmates’ appeals at the fi nal level of review were denied outright in 94 percent of cases, granted at least partially in less than 4.7 percent of all cases, and fully in only 0.02 percent of all cases.96 Malcolm Feeley and Van Swearingen concluded that the CDCR appeals process is little more than a facade of due process.97 Judicial review of prisoner appeals is extremely rare; when it does occur, courts tend to defer to the decisions of prison officials.98 Prison grievance systems, then, involve legislative and judicial deference to internal dispute resolution systems within prisons that exemplify symbolic attention to rights and rarely produce substantive justice. These examples suggest that in prison- conditions litigation, courts have drawn on organizational standards in framing legal requirements for prisons, and that in some instances, courts have deferred to symbolic compliance on the part of prisons. Even Supreme Court doctrine itself reflects a tendency to defer to prisons, as the Court simultaneously affi rmed and circumscribed prisoners’ rights.99 In Hudson v. Palmer in 1984, for example, the Supreme Court held that “imprisonment carries with it the circumspection or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety.”100 Similarly, in Turner v. Safley in 1987, the Supreme Court again reiterated that prison interests in safety should trump prisoner rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”101 Further Research on Legal Endogeneity Legal endogeneity theory offers the fi rst systematic theory of the relationship between law and organizations. The theory has implications for a number of literatures in the social sciences and law. It elaborates a growing literature on civil rights law, and, in particular, on EEO law in organizations by explaining how, as EEO law influences organizations, it incorporates managerialized forms of compliance that evolve within organizational fields and tend to undermine civil rights ideals. With respect to work on regulation, legal endogeneity theory com-

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plements work on regulatory capture102 but differs from capture theory: whereas capture involves direct efforts by industry representatives or management officials to influence the decisions of lawmakers through negotiation or control, legal endogeneity is a more subtle process whereby symbolic structures come to be associated with EEO compliance even when, because of various forms of managerialization, they are ineffective at protecting employees’ civil rights. Legal endogeneity theory also has important implications for work on judicial decision making. Whereas the political science literature shows how judicial decisions (primarily at the Supreme Court level) are affected by individual orientations, attitudes, and strategic concerns, legal endogeneity theory suggests that judicial opinions at all court levels are also influenced by widely shared beliefs about the meaning of law that come to be institutionalized in organizational fields. Legal endogeneity theory complements a growing literature in psychology on implicit bias and on heuristics in judicial decision making. Whereas experimental research shows that diversity structures prime decision makers to believe that organizations are fair103 and that judges tend to rely on heuristics when making decisions,104 legal endogeneity theory suggests that widely shared ideas about the value of symbolic structures may generate the implicit biases that lead judges to infer nondiscrimination from the mere presence of such structures. As noted in the policy discussion above, legal endogeneity theory challenges work by legal scholars who advocate “new governance” approaches to regulating organizations.105 Whereas that work generally argues that legal institutions should delegate governance responsibility to bodies within organizations, legal endogeneity theory shows how such an approach would exacerbate the problems associated with symbolic compliance. Legal endogeneity theory adds a new twist to an old theme in the sociology of law. One of the most basic themes in the sociology of law literature is that law is a fundamentally social phenomenon.106 Yet where much of this work is vague as to how society influences law, legal endogeneity theory specifies the mechanisms through which law derives meaning from organizations and organizational fields. Of course, many questions remain. While the examples I offered in the previous section show that legal endogeneity likely operates in arenas of organizational regulation well beyond the confi nes of equal em-

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ployment opportunity, further research is necessary to discern how the parameters of legal endogeneity theory may vary across regulatory contexts. For example, I have shown that legal ambiguity facilitates the evolution of legal endogeneity, but I do not claim that legal ambiguity is either a necessary or a sufficient condition for the evolution of legal endogeneity. Further research might explore the extent to which other factors may render legal ambiguity less important for the development of legal endogeneity. What happens, for example, when there are competing organizational models as opposed to a relatively cohesive set of institutionalized models? Will legal deference in such cases favor one set of models over another? Or, what happens when new organizational forms evolve in the interstices of the categories assumed by extant law? Russell Funk and Daniel Hirschman, for example, showed how the evolution of interest rate and foreign exchange swaps undermined the assumptions of the Glass- Steagall Act and eventually led to deregulation.107 Even though the EEO context is one in which courts have deferred to compliance structures that are often merely symbolic, legal endogeneity has the potential to enhance social reform efforts. When organizations develop effective mechanisms for change, legal deference to those structures is likely to buttress reform. It is only when legal institutions defer to structures that are ineffective that legal endogeneity undermines the ideals of law. Thus, further research might point to the conditions under which symbolic structures are generally more effective at achieving legal goals. One question is whether social movements might evoke rights mobilization that challenges legal deference to symbolic forms of compliance.108 In this book I have focused on the US legal regime. As noted earlier, a few scholars have begun to examine legal endogeneity in other countries. Clearly, more research is needed to examine the extent to which legal endogeneity is more likely in common law vis-à-vis civil law legal systems and the extent to which legal endogeneity depends on culture and characteristics of nation-states. Relatedly, research might explore whether legal endogeneity is more or less likely to operate where regulation depends more on bureaucratic enforcement and less on a private right of action. Finally, I have emphasized the role of compliance professionals in promoting legal endogeneity, but more attention to the role of compliance professionals generally might be valuable. Scholars might explore

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the impact of legal endogeneity on the growth of new professions and how that, in turn, influences the meaning of law.

The Symbolic Civil Rights Society, Legal Endogeneity, and Implications for Social Change In our symbolic civil rights society, citizens and legal institutions alike judge organizations largely by the presence of their symbols, making it less likely that organizations will judge employees by the content of their character. As courts increasingly equate symbolic structures with the achievement of civil rights, they render law endogenous and condone forms of compliance that are unlikely to produce racial and gender equality. Legal endogeneity, in turn, makes it easier for organizations to extol the virtues of diversity and inclusion while maintaining practices that perpetuate discrimination and inequality. As I noted earlier in this chapter, legal endogeneity has the potential to promote as well as to frustrate social change. When legal institutions distinguish between organizational practices that are substantive and those that are merely symbolic, as Feeley and Rubin suggest happened in the early prison conditions litigation,109 legal endogeneity promotes social change. But when legal institutions equate symbolic compliance with the achievement of substantive reform, as the courts have done in the EEO context, legal endogeneity stymies the capacity of law to produce meaningful social change. The evolution of a symbolic civil rights society, moreover, offers a critical insight into the broader capacity of reform- oriented law to promote social change. Symbolic compliance arose as employers and managers sought to preserve traditional business practices in the face of law that sought to dramatically reshape the social landscape of the American workplace. If symbolic compliance generally evolves where law seeks to disrupt long-standing patterns of power and privilege, then legal endogeneity is most likely to undermine the rights of the have-nots precisely where law promises the greatest social change.

Notes Chapter One 1. This phrase comes from Martin Luther King Jr.’s famous “I Have a Dream” speech, which was delivered on August 28, 1963, to more than two hundred fi fty thousand civil rights supporters from the steps of the Lincoln Memorial as part of the March on Washington. 2. 131 S. Ct. 2541 (2011). 3. Walmart uses the spelling “Walmart” on most documents and on its website. The legal name of the corporation is “Wal-Mart,” and the hyphenated spelling is used in litigation. 4. Wal- Mart, 131 S. Ct. at 2554. 5. Murray Edelman, Political Language: Words That Succeed and Policies That Fail (New York: Academic Press, 1977), 2. 6. Murray J. Edelman, Politics as Symbolic Action: Mass Arousal and Quiescence (New York: Academic Press, 1971), 101; see also Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (New Haven, CT: Yale University Press, 1974), 135. 7. 42 U.S.C. §§ 2000e et seq. 8. 29 U.S.C. §§ 621 et seq. (as amended). 9. 42 U.S.C. §§ 2000e et seq. (as amended). 10. 42 U.S.C. §§ 12101 et seq. (as amended). 11. 42 U.S.C. §§ 1981 et seq. (as amended). 12. 29 U.S.C. §§ 2601 et seq. (as amended). 13. US Equal Employment Opportunity Commission, Charge Statistics FY 1997 through FY 2014, http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm. 14. In the probability sample of employment discrimination cases from 1965 to 1999, which I collected with Linda Krieger, race and sex were the most common types of discrimination alleged. In our sample, 19 percent of cases alleged

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only race discrimination, 17 percent of cases alleged only sex discrimination, and 6 percent of cases alleged both race and sex discrimination. 15. Data are available from the Bureau of Labor Statistics at http://www.bls .gov/cps/data.htm. 16. Data for the years 1966– 2008 are available from the EEOC at http://www .eeoc.gov/eeoc/statistics/employment/jobpat- eeo1/docs/indicators.html; data for 2010 are available at http://www.eeoc.gov/eeoc/statistics/employment/jobpat - eeo1/2013_indicators.cfm. EEOC data include Asians as minorities. 17. US Bureau of Labor Statistics, Current Population Survey, “Household Data Annual Averages (Table) 11. Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity” (2014), http://www.bls.gov/cps/ cpsaat11.pdf. BLS data are for African Americans only. 18. Ibid. 19. US Bureau of Labor Statistics, Current Population Survey, “Household Data Annual Averages (Table) 37. Median Weekly Earnings of Full-Time Wage and Salary Workers by Selected Characteristics” (2014), http://www.bls.gov/cps/ cpsaat37.pdf (accessed 2014; data updated annually). BLS data reported are for African Americans only. 20. US Bureau of Labor Statistics, Current Population Survey, “Household Data Annual Averages (Table) 39. Median Weekly Earnings of Full-Time Wage and Salary Workers by Detailed Occupation and Sex” (2014), http://www.bls .gov/cps/cpsaat39.pdf 21. William T. Bielby and James N. Baron, “Men and Women at Work: Sex Segregation and Statistical Discrimination,” American Journal of Sociology 91, no. 4 (1986): 737– 65; Kevin Stainback and Donald Tomaskovic-Devey, Documenting Desegregation: Racial and Gender Segregation in Private Sector Employment since the Civil Rights Act (New York: Russell Sage Foundation, 2012). 22. Robert L. Nelson and William P. Bridges, Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America (New York: Cambridge University Press, 1999); Barbara F. Reskin and Denise D. Bielby, “A Sociological Perspective on Gender and Career Outcomes,” Journal of Economic Perspectives 19, no. 1 (2005): 71– 86. 23. Stainback and Tomaskovic-Devey, Documenting Desegregation. The authors measured segregation using an index of dissimilarity, which indicates the proportion of a group that would have to switch occupations to end segregation. An index score of one hundred indicates complete segregation. 24. Trond Petersen, Ishak Saporta, and Marc-David L. Seidel, “Offering a Job: Meritocracy and Social Networks,” American Journal of Sociology 106, no. 3 (2000): 763– 816; Barbara F. Reskin and Debra Branch McBrier, “Why Not Ascription? Organizations’ Employment of Male and Female Managers,” American Sociological Review 65, no. 2 (2000): 210– 33. 25. James N. Baron and William T. Bielby, “Organizational Barriers to Gen-

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der Equality: Sex Segregation of Jobs and Opportunities,” in Gender and the Life Course, ed. Alice S. Rossi (New York: Aldine, 1985), 233– 51; Heidi I. Hartmann, “Internal Labor Markets and Gender: A Case Study of Promotion,” in Gender in the Workplace, ed. Clair Brown and Joseph A. Peckman (Washington, DC: Brookings Institution, 1987), 59– 92. 26. Rosabeth Moss Kanter, “Some Effects of Proportions on Group Life: Skewed Sex Ratios and Responses to Token Women,” American Journal of Sociology 82, no. 5 (1977): 965– 90; Janice D. Yoder, “Rethinking Tokenism: Looking beyond Numbers,” Gender & Society 5, no. 2 (1991): 178– 92; Debra E. Meyerson and Joyce K. Fletcher, “A Modest Manifesto for Shattering the Glass Ceiling,” Harvard Business Review 78, no. 1 (2000): 126– 36. 27. Catherine R. Albiston, “Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights,” Law & Society Review 39, no. 1 (2005): 11–49. 28. Cecilia L. Ridgeway, “Interaction and the Conservation of Gender Inequality: Considering Employment,” American Sociological Review 62, no. 2 (1997): 218– 35; Elizabeth H. Gorman and Julie A. Kmec, “We (Have to) Try Harder: Gender and Required Work Effort in Britain and the United States,” Gender & Society 21, no. 6 (2007): 828– 56. 29. Barbara A. Gutek, Sex and the Workplace (San Francisco: Jossey-Bass, 1985); Anna-Maria Marshall, “Idle Rights: Employees’ Rights Consciousness and the Construction of Sexual Harassment Policies,” Law & Society Review 39, no. 1 (2005): 83–123. 30. Veronica F. Nieva and Barbara A. Gutek, “Sex Effects on Evaluation,” Academy of Management Review 5, no. 2 (1980): 267– 76; Elizabeth H. Gorman, “Gender Stereotypes, Same- Gender Preferences, and Organizational Variation in the Hiring of Women: Evidence from Law Firms,” American Sociological Review 70, no. 4 (2005): 702– 28. 31. Birt L. Duncan, “Differential Social Perception and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks,” Journal of Personality and Social Psychology 34, no. 4 (1976): 590– 98; Galen V. Bodenhausen and Robert S. Wyer, “Effects of Stereotypes in Decision Making and Information-Processing Strategies,” Journal of Personality and Social Psychology 48, no. 2 (1985): 267– 82. 32. Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47, no. 6 (1995): 1161– 248; Marianne Bertrand and Sendhil Mullainathan, “Are Emily and Brendan More Employable Than Latoya and Tyrone? Evidence on Racial Discrimination in the Labor Market from a Large Randomized Experiment,” American Economic Review 94, no. 4 (2004): 991–1013. 33. Mahzarin R. Banaji and Anthony G. Greenwald, “Implicit Gender Stereotyping in Judgments of Fame,” Journal of Personality and Social Psychology

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68, no. 2 (1995): 181– 98; Anthony G. Greenwald and Linda Hamilton Krieger, “Implicit Bias: Scientific Foundations,” California Law Review 94, no. 4 (2006): 945– 67. 34. Ian F. Haney-López, “Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination,” Yale Law Journal 109, no. 8 (2000): 1717– 884. 35. Bertrand and Mullainathan, “Emily and Brendan.” 36. Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” Columbia Law Review 101, no. 3 (2001): 458– 568. 37. Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock In White Advantage (New York: New York University Press, 2014). 38. Devon W. Carbado and Mitu Gulati, Acting White? Rethinking Race in Post- racial America (New York: Oxford University Press, 2013), 21. See also Kenji Yoshino, “Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of ‘Don’t Ask, Don’t Tell,’” Yale Law Journal 108, no. 3 (1998): 485– 571; Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (New York: Random House, 2007); Michael Luo, “‘Whitening’ the Résumé,” New York Times, December 5, 2009. 39. Rosabeth Moss Kanter, Men and Women of the Corporation (New York: Basic Books, 1977); Catherine Albiston, Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights on Leave (New York: Cambridge University Press, 2010); Joan C. Williams and Rachel Dempsey, What Works for Women at Work: Four Patterns Working Women Need to Know (New York: New York University Press, 2014). 40. Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” University of Chicago Legal Forum (1989): 139– 68; Patricia Hill Collins, “Intersectionality’s Defi nitional Dilemmas,” Annual Review of Sociology 41 (2015): 1– 20. 41. Frank Dobbin, Inventing Equal Opportunity (Princeton, NJ: Princeton University Press, 2009). 42. Dobbin provided a compelling and insightful account of the role of personnel professionals in designing the bureaucratic changes that would come to represent equal employment opportunity. Although there are some similarities between Dobbin’s account and mine, there are also critical differences. Dobbin and I both see the personnel or human resource profession as a catalyst for structural reform of organizations, but Dobbin emphasized the progress made since the 1960s, whereas I focus on how symbolic structures both engender and obscure processes that undermine civil rights ideals. Further, whereas Dobbin focused on the role of personnel professionals, my central focus is on the changing meaning of EEO law, both in organizations and in courts. I highlight the process through which business conceptions of law infiltrate formal legal understandings

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of equal employment opportunity and how those conceptions interact with key changes in judicial doctrine interpreting EEO law. I show how the forms of compliance that become common in the business world are mobilized by litigants, consultants, lawyers, and judges in ways that carry them into the legal world. And I show how courts, and to some extent the EEOC, defer to organizational constructions of EEO law and compliance even when those constructions undermine legal rights, ironically condoning and perpetuating discrimination and inequality. Legal endogeneity theory, moreover, has implications for the interplay of law and organizations beyond the EEO context. Thus, our accounts are in many ways complementary: Dobbin focused more on the progress that has been made whereas I offer an explanation for the discrimination and inequality that persist. 43. Charles R. Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (Chicago: University of Chicago Press, 2009). 44. John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago: University of Chicago Press, 1996). 45. The term endogenous was originally used in the macroeconomics literature in the context of economic systems and businesses within them. Processes or factors outside the system (such as wars or weather) were said to be exogenous whereas those occurring inside the system (such as prices and demand) were said to be endogenous. The term is now used in econometrics to refer to independent variables that are to some extent caused by the phenomenon being predicted by the model. In other words, if X may affect Y, but Y may also affect X, then X is said to be endogenous (determined partially within) the model rather than exogenous (existing independently of the model). In more statistical terms, X is correlated with the error term of the model. See Lawrence R. Klein, “The Use of Econometric Models as a Guide to Economic Policy,” Econometrica: Journal of the Econometric Society 15, no. 2 (1947): 111– 51. 46. Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Cambridge, MA: Harvard University Press, 1936); Lawrence Friedman, The Legal System: A Social Science Perspective (New York: Russell Sage Foundation, 1975). 47. George J. Stigler, “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2, no. 1 (1971): 3– 21; Frank R. Baumgartner and Beth L. Leech, Basic Interests: The Importance of Groups in Politics and in Political Science (New York: Cambridge University Press, 1998). 48. Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9, no. 1 (1974): 95–160. 49. Richard E. Miller and Austin Sarat, “Grievances, Claims, and Disputes: Assessing the Adversary Culture,” Law & Society Review 15, no. 3/4 (1980): 525– 65; Albiston, Institutional Inequality; Laura Beth Nielsen, Robert L. Nelson, and Ryon Lancaster, “Individual Justice or Collective Legal Mobilization?

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Employment Discrimination Litigation in the Post Civil Rights United States,” Journal of Empirical Legal Studies 7, no. 2 (2010): 175– 201. 50. John P. Heinz et al., Urban Lawyers: The New Social Structure of the Bar (Chicago: University of Chicago Press, 2005). 51. Barbara A. Curran, The Legal Needs of the Public: The Final Report of a National Survey, a Joint Undertaking by the American Bar Association Special Committee to Survey Legal Needs and the American Bar Foundation (Chicago: American Bar Foundation, 1977); Deborah L. Rhode, “Access to Justice,” Fordham Law Review 69, no. 5 (2001): 1785– 819. 52. Douglas Hay, “Property, Authority, and the Criminal Law,” in Albion’s Fatal Tree, ed. Douglas Hay et al. (New York: Pantheon Books, 1975), 17– 63; E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (New York: Pantheon Books, 1975). 53. Thompson, Whigs and Hunters; Antonio Gramsci, Prison Notebooks, Vol. 1, trans. Joseph A. Buttigieg (New York: Columbia University Press, 1992). 54. In law, a corporation is generally treated as a separate legal entity that is responsible for its own debts and liabilities, thus giving its shareholders limited liability. If a court believes the corporation is a sham, however, it may “pierce the corporate veil.” The term may have fi rst been used in I. Maurice Wormser, “Piercing the Veil of Corporate Entity,” Columbia Law Review 12, no. 6 (1912): 496– 519. 55. The interviews were conducted by John Lande. I analyzed them in collaboration with John Lande and Howard Erlanger. 56. These interviews were conducted by Stephen Petterson and Elizabeth Chambliss. I analyzed them in collaboration with those scholars and Howard Erlanger. 57. I analyzed these articles with various collaborators, including Steven Abraham, Mia Cahill, Howard Erlanger, Sally Riggs Fuller, Iona Mara-Drita, Stephen Petterson, and Christopher Uggen. 58. HR Daily Advisor, hrdailyadvisor.blr.com. 59. Society for Human Resource Management, http://www.shrm.org/pages/ default.aspx. 60. Linda H. Krieger and I jointly designed the study of judicial deference. I have conducted analyses of the data from this study in collaboration with Linda Krieger, Scott Eliason, Catherine Albiston, Virginia Mellema, and Rachel Best. 61. The more recent sample was coded in collaboration with Brent Nakamura. 62. The EEOC Guidelines on Discrimination are published in 29 C.F.R. pts. 1604–1608.

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Chapter Two 1. Parts of this discussion are based on Lauren B. Edelman and Mark C. Suchman, “The Legal Environments of Organizations,” Annual Review of Sociology 23 (1997): 479– 515. 2. Max Weber, “Bureaucracy,” in Essays in Sociology, trans. and ed. Hans H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 196– 244. 3. Philip Selznick, Law, Society, and Industrial Justice (New York: Russell Sage Foundation, 1969). 4. Christopher D. Stone, Where the Law Ends: The Social Control of Corporate Behavior (New York: Harper & Row, 1975); Diane Vaughan, Controlling Unlawful Organizational Behavior: Social Structure and Corporate Misconduct (Chicago: University of Chicago Press, 1983); Keith Hawkins, Environment and Enforcement: Regulation and the Social Defi nition of Pollution (Oxford: Clarendon Press, 1984). 5. Lauren B. Edelman, “Legal Environments and Organizational Governance: The Expansion of Due Process in the Workplace,” American Journal of Sociology 95, no. 6 (1990): 1401–40; Lauren B. Edelman, “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law,” American Journal of Sociology 97, no. 6 (1992): 1531– 76; Lauren B. Edelman, Steven E. Abraham, and Howard S. Erlanger, “Professional Construction of Law: The Inflated Threat of Wrongful Discharge Doctrine,” Law & Society Review 26, no. 1 (1992): 47– 83; Frank Dobbin et al., “Equal Opportunity Law and the Construction of Internal Labor Markets,” American Journal of Sociology 99, no. 2 (1993): 396–427; John R. Sutton et al., “The Legalization of the Workplace,” American Journal of Sociology 99, no. 4 (1994): 944– 71; Frank Dobbin and John R. Sutton, “The Strength of a Weak State: The Rights Revolution and the Rise of Human Resource Management Divisions,” American Journal of Sociology 104, no. 2 (1998): 441– 76; Lauren B. Edelman and Stephen Petterson, “Symbols and Substance in Organizational Response to Civil Rights Law,” Research in Social Stratifi cation and Mobility 17 (1999): 107– 35; Lauren B. Edelman and Mark C. Suchman, “When the ‘Haves’ Hold Court: Speculations on the Organizational Internalization of Law,” Law & Society Review 33, no. 4 (1999): 941– 91; Lauren  B. Edelman, Christopher Uggen, and Howard S. Erlanger, “The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth,” American Journal of Sociology 105, no. 2 (1999): 406– 54; Sally Riggs Fuller, Lauren B. Edelman, and Sharon Matusik, “Legal Readings: Employee Interpretation and Enactment of Civil Rights Law,” Academy of Management Review 25, no.  1 (2000): 200– 216; Lauren B. Edelman and Mark C. Suchman, eds., The Legal Lives of Private Organizations (Burlington, VT: Ashgate, 2007); Dobbin, Inventing Equal Opportunity; Lauren B. Edelman et al., “When Organizations

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Rule: Judicial Deference to Institutionalized Employment Structures,” American Journal of Sociology 117, no. 3 (2011): 888– 954. 6. Paul J. DiMaggio and Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review 48, no. 2 (1983): 147– 60; Neil Fligstein and Doug McAdam, A Theory of Fields (New York: Oxford University Press, 2012). 7. DiMaggio and Powell, “The Iron Cage Revisited,” 148. See also John W. Meyer and W. Richard Scott, Organizational Environments: Ritual and Rationality (Beverly Hills, CA: Sage, 1983). 8. Lauren B. Edelman, “Overlapping Fields and Constructed Legalities: The Endogeneity of Law,” in Private Equity, Corporate Governance and the Dynamics of Capital Market Regulation, ed. Justin O’Brien (London: Imperial College Press, 2007), 55– 90. 9. Marc Schneiberg, “Organizational Heterogeneity and the Production of New Forms: Politics, Social Movements and Mutual Companies in American Fire Insurance, 1900–1930,” Research in the Sociology of Organizations 19 (2002): 39– 89; Gerald Berk and Marc Schneiberg, “Varieties in Capitalism, Varieties of Association: Collaborative Learning in American Industry, 1900 to 1925,” Politics and Society 33, no. 1 (2005): 46– 87. 10. Legitimacy is a complex construct that has been defi ned in many ways. My use of the term is consistent with the defi nition of legitimacy offered by Mark Suchman: “Legitimacy is a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs, and defi nitions.” Mark C. Suchman, “Managing Legitimacy: Strategic and Institutional Approaches,” Academy of Management Review 20, no. 3 (1995): 574. 11. The legitimacy of law varies. See Robin Stryker, “Rules, Resources, and Legitimacy Processes: Some Implications for Social Confl ict, Order, and Change,” American Journal of Sociology 99, no. 4 (1994): 847– 910. Tom Tyler has shown empirically, however, that law in general enjoys legitimacy. Tom R. Tyler, Why People Obey the Law (New Haven, CT: Yale University Press, 1990). 12. Lauren B. Edelman, Sally Riggs Fuller, and Iona Mara-Drita, “Diversity Rhetoric and the Managerialization of Law,” American Journal of Sociology 106, no. 6 (2001): 1589– 641. 13. For a discussion of the conditions under which social movement activity might influence organizations, see Calvin Morrill, Mayer N. Zald, and Hayagreeva Rao, “Covert Political Confl ict in Organizations: Challenges from Below,” Annual Review of Sociology 29 (2003): 391–415. 14. Frank Dobbin et al., “The Expansion of Due Process in Organizations,” in Institutional Patterns in Organizations, ed. Lynne G. Zucker (Cambridge, MA: Ballinger, 1988), 71– 98; Edelman, “Legal Environments and Organizational Governance; Edelman, “Legal Ambiguity and Symbolic Structures”; Sut-

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ton et al., “Legalization of the Workplace”; Dobbin, Inventing Equal Opportunity; Epp, Making Rights Real. 15. Friedman, The Legal System; Ehrlich, Fundamental Principles. 16. Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1986); Stephen B. Burbank, “The Architecture of Judicial Independence,” Southern California Law Review 72, no. 2– 3 (1999): 315– 52. 17. Erin L. Kelly, “The Strange History of Employer-Sponsored Child Care: Interested Actors, Uncertainty, and the Transformation of Law in Organizational Fields,” American Journal of Sociology 109, no. 3 (2003): 606–49. 18. Galanter, “Why the ‘Haves’ Come Out Ahead”; Edelman and Suchman, “When the ‘Haves’ Hold Court”; Catherine R. Albiston, “The Rule of Law and the Litigation Process: The Paradox of Losing by Winning,” Law & Society Review 33, no. 4 (1999): 869– 910. 19. Shauhin A. Talesh, “Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Antidiscrimination Laws,” Law & Policy 37, no. 2 (2015): 209– 39. 20. Edelman, Abraham, and Erlanger, “Professional Construction of Law.” 21. Edelman, “Legal Ambiguity and Symbolic Structures.” 22. DiMaggio and Powell, “The Iron Cage Revisited.” 23. Edelman and Petterson, “Symbols and Substance”; Alexandra Kalev, Frank Dobbin, and Erin Kelly, “Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affi rmative Action and Diversity Policies,” American Sociological Review 71, no. 4 (2006): 589– 617. 24. Lauren B. Edelman, Howard S. Erlanger, and John Lande, “Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace,” Law & Society Review 27, no. 3 (1993): 497– 534. 25. Katherine Van Wezel Stone, “Mandatory Arbitration of Individual Employment Rights: The Yellow Dog Contract of the 1990s,” Denver University Law Review 73, no. 4 (1996): 1017– 50; Elizabeth A. Roma, “Mandatory Arbitration Clauses in Employment Contracts and the Need for Meaningful Judicial Review,” American University Journal of Gender, Social Policy & Law 12, no. 3 (2004): 519–44. 26. Francis J. Mootz III, “Insurance Coverage of Employment Discrimination Claims,” University of Miami Law Review 52, no. 1 (1997): 1– 78; Christopher C. French, “Debunking the Myth That Insurance Coverage Is Not Available or Allowed for Intentional Injuries or Damage,” Hastings Business Law Journal 8, no. 1 (2012): 65–102; Talesh, “Legal Intermediaries.” 27. Karl E. Weick, “Educational Organizations as Loosely Coupled Systems,” Administrative Science Quarterly 21, no. 1 (1976): 1–19. 28. Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric.” 29. William L. F. Felstiner, Richard Abel, and Austin Sarat, “The Emergence

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and Transformation of Disputes: Naming, Blaming, Claiming,” Law & Society Review 15, no. 3/4 (1980): 631– 54. 30. Ibid. 31. Ibid.; Miller and Sarat, “Grievances, Claims, and Disputes”; Kristin Bumiller, The Civil Rights Society: The Social Construction of Victims (Baltimore: Johns Hopkins University Press, 1988); Beth A. Quinn, “The Paradox of Complaining: Law, Humor, and Harassment in the Everyday Work World,” Law & Social Inquiry 25, no. 4 (2000): 1151– 85; Elizabeth A. Hoffmann, “Confrontations and Compromise: Dispute Resolution at a Worker Cooperative Coal Mine,” Law & Social Inquiry 26, no. 3 (2001): 555– 96; Elizabeth A. Hoffmann, “Legal Consciousness and Dispute Resolution: Different Disputing Behavior at Two Similar Taxicab Companies,” Law & Social Inquiry 28, no. 3 (2003): 691– 716; Anna-Maria Marshall, “Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment,” Law & Social Inquiry 28, no. 3 (2003): 659– 89; Marshall, “Idle Rights”; Albiston, Institutional Inequality; Nielsen, Nelson, and Lancaster, “Individual Justice or Collective Legal Mobilization?” 32. Bumiller, The Civil Rights Society. 33. Marshall, “Idle Rights”; Albiston, Institutional Inequality; Calvin Morrill et al., “Legal Mobilization in Schools: The Paradox of Rights and Race among Youth,” Law & Society Review 44, no. 3/4 (2010): 651– 94. 34. Morrill et al., “Legal Mobilization in Schools”; Catherine R. Albiston, Lauren B. Edelman, and Joy Milligan, “The Dispute Tree and the Legal Forest,” Annual Review of Law and Social Science 10 (2014): 105– 31. 35. Susan Bisom-Rapp, “Bulletproofi ng the Workplace: Symbol and Substance in Employment Discrimination Law Practice,” Florida State University Law Review 26, no. 4 (1999): 959–1048. 36. Albiston, “Rule of Law.” 37. Shauhin A. Talesh, “Institutional and Political Sources of Legislative Change: Explaining How Private Organizations Influence the Form and Content of Consumer Protection Legislation,” Law & Social Inquiry 39, no. 4 (2014): 973–1005. 38. Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Blinking on the Bench: How Judges Decide Cases,” Cornell Law Review 93, no. 1 (2007): 1–44; Cheryl R. Kaiser et al., “Presumed Fair: Ironic Effects of Organizational Diversity Structures,” Journal of Personality and Social Psychology 104, no. 3 (2013): 504–19.

Chapter Three 1. Special thanks are due to Joy Milligan, who provided stellar research assistance for this chapter, and to Linda Krieger, my former colleague at UC Berke-

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ley (now at University of Hawaii, Manoa), who over the years has patiently corrected many of my misconceptions about civil rights doctrine. I am very grateful to several experts in civil rights law (Catherine Albiston, Judge Nancy Gertner [Ret.], Linda Hamilton Krieger, Joy Milligan, and Victor Quintanilla) who have given me detailed comments on earlier versions of this chapter. Any remaining errors are, of course, my own. 2. See Barbara T. Lindemann, Paul Grossman, and C. Geoffrey Weirich, Employment Discrimination Law, 5th ed., 2 vols. (Washington, DC: Bureau of National Affairs, 2012); Krieger, “Content of Our Categories.” 3. 42 U.S.C. §§ 2000e et. seq. (as amended). 4. There have been various amendments to the act over the years, including the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e et seq.; the Pregnancy Discrimination Act of 1978, 42 U.S.C.§ 2000e(k); the Civil Rights Act of 1991, 42 U.S.C. §§ 1981 et seq.; and the Lily Ledbetter Fair Pay Act of 2009, 42 U.S.C. §§ 2000e et seq. 5. 29 U.S.C. §§ 621 et seq. (as amended). 6. 29 U.S.C. §§ 206(d) et seq. (as amended). 7. 29 U.S.C. §§ 701 et seq. (as amended). The Rehabilitation Act is the precursor to the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.). 8. There are numerous other specialized civil rights laws or laws that have been interpreted as prohibiting discrimination in some employment sectors as well, including the National Labor Relations Act (29 U.S.C. §§ 151–169) and the Railway Labor Act (45 U.S.C. §§ 151–163), which have been interpreted as prohibiting discrimination by labor unions. In addition, Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) prohibits discrimination on the basis of race or national origin by recipients of federal funds; Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681–1688) prohibits discrimination on the basis of sex by educational institutions that receive federal funds; and the Rehabilitation Act of 1973 (29 U.S.C. §§ 701 et seq.) required federally assisted programs to avoid discrimination on the basis of disability and to take affi rmative action to employ and promote qualified disabled persons. 9. 30 Fed. Reg. 12319 (Sept. 24, 1965), as amended. 10. 42 U.S.C. §§ 12101 et seq. (as amended). 11. 42 U.S.C. §§ 1981 et seq. (as amended). 12. 29 U.S.C. §§ 2601 et seq. (as amended). 13. The act uses the verb form rather than the noun, specifying: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-2(a)(1). 14. Paul Burstein, Discrimination, Jobs, and Politics: The Struggle for Equal

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Employment Opportunity in the United States since the New Deal (Chicago: University of Chicago Press, 1985); Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960–1972 (New York: Oxford University Press, 1990). 15. Alfred W. Blumrosen, Modern Law: The Law Transmission System and Equal Employment Opportunity (Madison: University of Wisconsin Press, 1993). 16. Title VII precludes discrimination on the basis of race and sex, not against minorities and women per se. Of course, it is minorities and women who have historically suffered, and therefore I focus on the rights of these groups. 17. Although there was no organized plaintiffs’ civil rights bar prior to the 1964 Act, there were private civil rights attorneys representing employees and also the NAACP Legal Defense and Educational Fund (known as the “Inc. Fund”) as well as other civil rights advocacy groups. 18. Graham, Civil Rights Era. 19. John David Skrentny, The Ironies of Affirmative Action. See also John David Skrentny, After Civil Rights: Racial Realism in the New American Workplace (Princeton, NJ: Princeton University Press, 2013). 20. Blumrosen, Modern Law. 21. Michael Sovern, Legal Restraints on Racial Discrimination in Employment (New York: Twentieth Century Fund, 1966). 22. Nicholas Pedriana and Robin Stryker, “Political Culture Wars 1960s Style: Equal Employment Opportunity–Affi rmative Action Law and the Philadelphia Plan,” American Journal of Sociology 103, no. 3 (1997): 633– 91. 23. Dobbin, Inventing Equal Opportunity. 24. Graham, Civil Rights Era, 39. 25. 26 Fed. Reg. 1977 (Mar. 8, 1961). 26. Skrentny, Ironies of Affirmative Action. 27. Graham, Civil Rights Era, 105. 28. Ibid., 115–16. 29. 42 U.S.C. § 2000e-5(g)(1). 30. Skrentny, Ironies of Affirmative Action; Pedriana and Stryker, “Political Culture Wars.” 31. Steven Napolitano, “Interpreting the Legislative History of Section 706(g) of Title VII,” Boston College Third World Law Journal 7, no. 2 (1987): 263– 76. 32. Executive Order 11246, 30 Fed. Reg. 12319 (Sept. 28, 1965). Part I of Executive Order 11246, which applied to government employment, was superseded in 1969 with Executive Order 11478, which required “the head of each executive department and agency to establish and maintain an affi rmative program of equal employment opportunity for all civilian employees and applicants for employment.” Executive Order 11478, 34 Fed. Reg. 12985 (Aug. 8, 1969). The specific language of “affi rmative action” does not appear in Executive Order 11478.

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33. The order assigned oversight of government contractors to the Office of Federal Contract Compliance (OFCC) within the Labor Department. The OFCC was renamed the Office of Federal Contract Compliance Programs (OFCCP) in 1978 when President Jimmy Carter issued Executive Order 12086, which consolidated contract compliance functions for equal employment opportunity under the OFCCP. Executive Order 12086, 43 Fed. Reg. 46501 (Oct. 10, 1978). The order also created a number of potential sanctions for noncompliance, although it explicitly requires that the Justice Department attempt conciliation or persuasion before taking punitive action. These sanctions include instituting proceedings under Title VII, recommending criminal proceedings for furnishing false information to contracting agencies, and contract termination or debarment from future contracts. Sovern, Legal Restraints. 34. Executive Order 11375, 32 Fed. Reg. 14303 (Oct. 17, 1967). 35. Margaret Weir, Politics and Jobs: The Boundaries of Employment Policy in the United States (Princeton, NJ: Princeton University Press, 1993); Skrentny, Ironies of Affirmative Action, 89. 36. Skrentny, Ironies of Affirmative Action, 89– 90. 37. National Advisory Commission on Civil Disorders, Report of the National Advisory Commission on Civil Disorders, issued February 29, 1968. 38. “President Orders an Even Break for Minorities in Defense Jobs,” New York Times, June 26, 1941, http://query.nytimes.com/mem/archive/pdf ?res=9A0 6E0DB153FE13BBC4E51DFB066838A659EDE. 39. Graham, Civil Rights Era, 287– 90. 40. Ibid., 322– 28. 41. Pedriana and Stryker, “Political Culture Wars.” 42. Ibid. 43. Contractors Association of Eastern Pennsylvania v. Shultz, 311 F. Supp. 1002 (E.D. Pa. 1970), aff’d, 442 F.2d 159 (3d Cir. 1971). 44. Graham, Civil Rights Era, 342. 45. Ibid. 46. 36 Fed. Reg. 23152 (Dec. 4, 1971). 47. Id. at 23154. 48. Id. 49. Linda H. Krieger, “The Watched Variable Improves: On Eliminating Sex Discrimination in Employment,” in Sex Discrimination in the Workplace, eds. Faye J. Crosby, Margaret S. Stockdale, and S. Ann Ropp (Malden, MA: Blackwell, 2007), 295– 330. 50. As time went on, the ambiguity of the law would be compounded by politics. Under President Ronald Reagan in the 1980s, the Civil Rights Division of the Justice Department stopped seeking goals and timetables as remedies in federal discrimination cases and began to fi le amicus briefs in cases across the country, arguing that goals and timetables amounted to quotas and were illegal under

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both Title VII and the US Constitution. David L. Rose, “Twenty-Five Years Later: Where Do We Stand on Equal Employment Opportunity Law Enforcement?,” Vanderbilt Law Review 42, no. 4 (1989): 1121– 82; Krieger, “Watched Variable Improves.” 51. Pub. L. No. 92-261 (1972). 52. Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the United States (Princeton, NJ: Princeton University Press, 2010). 53. Nicholas Pedriana and Robin Stryker, “The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971,” American Journal of Sociology 110, no. 3 (2004): 709– 60; see also Skrentny, Ironies of Affirmative Action. 54. Pedriana and Stryker, “Strength of a Weak Agency,” 725– 26. 55. Ibid., 731. 56. 279 F. Supp. 505 (E.D. Va. 1968). 57. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). 58. Pedriana and Stryker, “Strength of a Weak Agency,” 734. 59. 401 U.S. 424 (1971). 60. Pedriana and Stryker, “Strength of a Weak Agency.” 61. Ibid., 740. 62. Farhang, Litigation State. 63. Alan Freeman, “Antidiscrimination Law: The View from 1989,” Tulane Law Review 64, no. 6 (1990): 1407–42. 64. To make this discussion friendlier to social science readers, I generally refer to “employees” and “employers” rather than “plaintiffs” and “defendants.” Although there are some cases in which an employer sues an employee, the overwhelming majority of civil rights cases involve employees as plaintiffs and employers as defendants. 65. The Court in subsequent cases elaborated the process for proving discrimination: the plaintiff must show that the facially neutral practice disqualifies members of a protected group at a rate that is significantly higher than that of a corresponding relevant group (e.g., women versus men, blacks versus whites). The burden of proof then shifts to the employer to demonstrate that the practice can nonetheless be justified as a business necessity. Even if the practice can be justified as a business necessity, the employee can still prevail if he or she can show that there is an alternative practice that is less harmful to the protected group and that the employer has refused to implement that practice. Griggs, 401 U.S. at 431 (“The Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.”); Albemarle v. Moody, 422 U.S. 405, 425 (1975) (“Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets the burden of showing that any given requirement [has]  .  .  . a manifest relationship to the employment in

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question.”); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977). The Court originally based disparate impact theory on Section 703(a)(2) of the 1964 Civil Rights Act, which bars the employer from “limit[ing], segregat[ing], or classify[ing] his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” Congress later codified the more detailed burden of proof structure for disparate impact claims at 42 U.S.C. § 2000e-2k(1). 66. Robin Stryker, “Disparate Impact and the Quota Debates: Law, Labor Market Sociology and Equal Employment Policies,” Sociological Quarterly 42, no. 1 (2001): 13–46. 67. Some scholars have argued that Griggs was internally contradictory on the issue of intent, endorsing both the notion that disparate impact is fundamentally about motivations and that it is about the consequences of employment practices and not simply the motivation. George Rutherglen, Major Issues in the Federal Law of Employment Discrimination (Washington, DC: Federal Judicial Center, 2004). 68. Disparate treatment theory is premised on section 703(a)(1) of the 1964 Civil Rights Act, which states that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, sex, national origin, or religion.” 42 U.S.C. § 2000e-2(a)(1). 69. 411 U.S. 792 (1973). 70. 450 U.S. 248 (1981). 71. McDonnell Douglas, 411 U.S. at 802. Various cases modify the prima facie case slightly for particular situations, such as those involving dismissal or promotion. 72. Burdine, 450 U.S. at 254. 73. McDonnell Douglas, 411 U.S. at 802. Various cases elaborate the nature of this burden. In Furnco Construction Corp. v. Waters, 438 U.S. 567, 577– 79 (1978), the Court held that the employer need not show that it employs procedures that maximize the number of minority candidates hired, and that the employer may use statistics showing a racially balanced workforce in responding to the plaintiff’s case, though such statistics are not dispositive. In St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993), the Court held that even when a plaintiff proves the employer’s explanation false, this does not entitle the plaintiff to judgment as a matter of law. In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000), the Court clarified, however, that a plaintiff’s prima facie case, along with evidence disproving the employer’s proffered reason, provides sufficient basis for a factual fi nding of discrimination. 74. McDonnell Douglas, 411 U.S. at 804.

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75. In Smith v. Texaco, Inc., 263 F.3d 394 (5th Cir. 2001), the Fifth Circuit held that the practice must be companywide and involve an explicit pattern including standard operating procedures rather than practices of a more episodic nature. 76. See 42 U.S.C. §§ 2000e-5, 2000e- 6; Rutherglen, Major Issues in the Federal Law of Employment Discrimination. 77. Section 703(e)(1) of Title VII does allow for some explicit trait-based classifications when there is a bona fide occupational qualification (BFOQ) on the basis of religion, sex, or national origin (but not race). 42 U.S.C. § 2000e-2(e)(1). BFOQ comes up most often in sex discrimination cases such as Dothard, 433 U.S. at 334– 36, in which the Court held that women could be systematically excluded as prison guards for male inmates due to the danger of sexual assault. In Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991), however, the Court found that the exclusion of fertile women from jobs that required exposure to lead based on potential danger to fetuses did not meet the BFOQ standard. The Court explained that safety risks to third parties constituted a BFOQ only when the safety of those parties related to the “essence” of the employer’s business, and deemed fetal safety unrelated to the company’s business of battery manufacturing. Id. at 203–4. In general, the BFOQ cases have defi ned the exception very narrowly but not especially coherently. 78. City of Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978). 79. Challenges to affi rmative action plans or practices (reverse discrimination claims) can be brought as systemic disparate treatment cases under Title VII (for public employers, they may also be brought under the equal protection clause of the Fourteenth Amendment). In general, courts have held that Title VII permits affi rmative action programs when there are long-standing statistical disparities and when the policies do not have too much of an impact on employees who are white or male (or both). The standards governing voluntary affi rmative action were set forth in two cases: United Steelworkers v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987). In Weber, the Court stated that the affi rmative action plan at issue was acceptable insofar as it was designed “to break down old patterns of racial segregation and hierarchy” and did not “unnecessarily trammel the interests of the white employees.” Weber, 443 U.S. at 208. The Court specifically noted that the plan did not create an absolute bar to training by white employees and that it was temporary in duration. In Johnson, the Court reaffi rmed the Weber standard in the context of a sex discrimination challenge. Whereas under the equal protection standard, the employer must rely on actual past discrimination, the Title VII standard that arises from the Johnson and Weber cases requires only long-standing statistical disparities to justify an affi rmative action plan. Title VII also permits affi rmative action as a judicial remedy for proven violations if it does not interfere with a le-

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gitimate seniority system. Local 28 of the Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421 (1986). But in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984), the Court limited the district court’s power to override seniority systems to prevent minority representation from declining during layoffs. In contrast to Title VII, equal protection standards have, since the 1970s, employed a tiered system of review that is very strict for affi rmative action based on race or national origin and somewhat more relaxed for sex. 80. 422 U.S. 405, 431 (1975) (quoting 29 C.F.R. § 1607.4[c], a provision of the EEOC Guidelines on Employee Selection Procedures). 81. Id. at 425. 82. 433 U.S. at 331– 32. 83. 457 U.S. 440, 450 (1982). 84. 487 U.S. 977, 991 (1988). 85. 426 U.S. 229, 238 (1976). 86. 431 U.S. 324, 352– 53 (1977). 87. 440 U.S. 568 (1979). In Beazer, the Court held that it was sufficient that the public transit authority showed that its refusal to employ methadone users “significantly served” its goals, even though the employer had not shown it was strictly necessary to exclude all methadone users from all jobs. Id. at 587n31. Beazer suggested a less strict approach to the employer’s burden in disparate impact cases than that advocated by the EEOC. 88. 442 U.S. 256 (1979). 89. 458 U.S. 375 (1982). 90. For many years, the circuit courts were divided on the availability of disparate impact under the Age Discrimination in Employment Act of 1967 (ADEA). But in Smith v. City of Jackson, 544 U.S. 228, 233 (2005), the Supreme Court noted that although a disparate impact claim can be brought under the ADEA, the employer need only show that the action was based on a “reasonable factor other than age” to prevail. 91. Robin Stryker, Martha Scarpellino, and Mellisa Holtzman, “Political Culture Wars 1990s Style: The Drum Beat of Quotas in Media Framing of the Civil Rights Act of 1991,” Research in Social Stratifi cation and Mobility 17 (1999): 33– 106; Stryker, “Disparate Impact.” 92. 490 U.S. 642 (1989). 93. Id. at 656– 57. 94. Id. at 659 (“[T]he dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer”). The Court described the burden of production as only requiring a showing that the “challenged practice serves, in a significant way, the legitimate employment goals of the employer” and claimed that its prior cases allocating the burden of persuasion to the employer had been misinterpreted. 95. Id. at 661. One part of the decision did benefit employees in that the Court

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affi rmed that disparate impact theory could be used to challenge subjective selection practices as well as formal policies. Id. at 648, 657 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977 [1988]). 96. Pub. L. No. 102-166 (1991). 97. First, the 1991 Civil Rights Act affi rmed the portion of Wards Cove that raised the employee’s initial burden by requiring that the employee specify the employment practices that caused the disparate impact. If the employee cannot identify those practices or show that the elements of the employer’s decisionmaking process cannot be separated for analysis, the employer would not even need to respond. 42 U.S.C. § 2000e-2(k)(1)(B)(i). Further, the 1991 Civil Rights Act overturned the part of Wards Cove relating to the burden of persuasion, holding that once the plaintiff articulates a prima facie case, the employer has both the burden of production and persuasion to “demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity.” This standard is highly ambiguous in that it incorporates both the seemingly less stringent “job relatedness” standard and the stronger pre–Wards Cove standard of “business necessity.” The 1991 Civil Rights Act further reinstated the pre–Wards Cove standard that plaintiffs may choose to rebut an employer’s showing of business necessity by showing that there was a less discriminatory “alternative employment practice” available to the employer, but the act failed to clarify that standard. 42 U.S.C. § 2000e-2(k)(1)(C). 98. 557 U.S. 557 (2009). The suit was brought by seventeen white fi refighters and one Hispanic fi refighter. Id. at 574. 99. The Court ruled that in order to take such action, an employer would need to show a “strong basis in evidence” for its belief that promoting employees based on the test results would subject the organization to disparate impact liability. Id. at 558. 100. By dismissing evidence that the exam may not have been justified by business necessity, the Court appeared to implicitly weaken the disparate impact standard. Id. at 587– 89; see also id. at 613–18, 632– 38 (Ginsburg, J., dissenting). 101. Plaintiffs must isolate a specific practice causing the disparity and have frequently encountered the rejection of their statistics based on small sample size, failure to use actual applicant data, or failure to show a statistically or practically significant disparity. Lindemann, Grossman, and Weirich, Employment Discrimination Law. Further, courts frequently misunderstand statistical issues relating to the appropriate unit of analysis for establishing systematic gender or racial disparities. William T. Bielby and Pamela Coukos, “‘Statistical Dueling’ with Unconventional Weapons: What Courts Should Know about Experts in Employments Discrimination Class Actions,” Emory Law Journal 56, no. 6 (2006): 1563– 612. 102. After the 1991 Civil Rights Act, full compensatory damages, including damages for intangible injuries like emotional distress, became available

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for disparate treatment cases, although they are capped by employer size. Punitive damages are also available under some circumstances for disparate treatment claims. For disparate impact claims, however, the only possible remedies are those equitable remedies traditionally available under the Civil Rights Act, which include reinstatement, back pay, and other injunctive and declaratory relief. 42 U.S.C. §§ 1981a(a)(1)– (2). 103. Michael Selmi, “Was the Disparate Impact Theory a Mistake?,” UCLA Law Review 53, no. 3 (2006): 701– 82. Selmi based his assessment on a review of a sample of disparate impact decisions from the lower courts from the 1980s through the early 2000s. 104. Noah D. Zatz, “Working Group on the Future of Systemic Disparate Treatment Law,” Berkeley Journal of Employment & Labor Law 32, no. 2 (2011): 387– 94. 105. Linda Hamilton Krieger (University of Hawaii, Manoa) and I collected the data as part of a larger project on judicial deference to institutionalized organizational practices (which I discuss in chapter 8). It is a 2 percent probability sample of federal EEO cases decided in district or circuit courts and published in the Westlaw database from 1965 through 1999. The sample is stratified by year, making it representative over time and by district or circuit court. For further details of the methodology, see Edelman et al., “When Organizations Rule.” Figure 3.1 is based on data from 1971 to 1999. The graph begins in 1973 because it is based on a five-year moving average beginning in 1971. 106. My subsequent data suggest that this trend extends beyond 1999. I do not include the post-2000 opinions in figure 3.1, however, because the legal theory was coded only as disparate treatment or other in the post-2000 data set, so I cannot extend the graph of disparate impact cases. Other scholars also fi nd that the decline in disparate impact litigation continues after 1999. See, e.g., Kevin M. Clermont and Stewart J. Schwab, “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?,” Harvard Law & Policy Review 3, no. 1 (2009): 103– 32. Ayres and Siegelman attributed the lack of data to the difficulty and expense of having to hand code legal causes of action (as Krieger and I did). Ian Ayres and Peter Siegelman, “Q-Word as Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas,” Texas Law Review 74, no. 7 (1996): 1494n7. 107. Krieger, “Content of Our Categories.” 108. Mixed-motive cases involve the very common situation in which there is evidence to support both a discriminatory and a nondiscriminatory rationale for the employer’s challenged action. The Civil Rights Act of 1991 established that it is sufficient for a plaintiff to show that discrimination was a “motivating factor,” but the act allows the employer to avoid certain forms of liability by showing that management would have taken the same decision regarding the plaintiff in any case. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B). In 2003 the Supreme Court

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ruled in Desert Palace v. Costa, 539 U.S. 90 (2003), that the plaintiff need not present direct evidence that discrimination was a motivating factor, although legal scholars called the case confusing. Kaitlin Picco, “The Mixed-Motive Mess: Defi ning and Applying a Mixed-Motive Framework,” ABA Journal of Labor & Employment Law 26, no. 3 (2011). More recently, in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), a mixed-motive case involving retaliation, the Supreme Court ruled that a higher standard of proof applies to retaliation claims, favoring employers. 109. In class action cases, the issue of subjective decision making is intertwined with questions of whether the class of employees meets the commonality requirement of Federal Rule of Civil Procedure 23(a)(2), which the Court has interpreted to mean that all class members must have suffered a common injury. Prior to the 2011 decision in Wal- Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), some courts found commonality based on unfettered discretion (e.g., Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476 [S.D.N.Y. 2005]) while others viewed subjective decision making as a basis to deny commonality (e.g., Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415 [N.D. Ill. 2003]). But Wal- Mart may have put the nail in the coffi n of class certification when the common form of discrimination is subjective decision making because the Court implied that such claims must necessarily show that the defendant “operated under a general policy of discrimination,” and must do so by showing “a common [discriminatory] mode of exercising discretion that pervades the entire company.” Wal- Mart, 131 S. Ct. at 2553– 55 (quoting General Telephone Co. v. Falcon, 457 U.S. 147, 158 [2011]). 110. The use of statistics in proving intent is also a thorny issue. In Teamsters v. United States, 431 U.S. 324 (1977), the Justice Department used statistics to demonstrate gross disparities based on race and ethnicity in higher-paying jobs. The disparity was so extreme, and minorities were hired in higher-paying jobs in such tiny numbers, that the Court famously referred to it as “the inexorable zero” because in many places there were no minority intercity drivers. Id. at 342n23. Since then, many cases involving smaller disparities have raised vexing issues about the appropriate use of statistics to prove intent to discriminate. The use of statistics necessarily invokes questions about inferring causation based on statistical disparities and about appropriate levels of analysis, the proper defi nition of a qualified applicant pool, and the relationship between discrimination and evidence of minorities’ and women’s interest in jobs. 111. Krieger, “Content of Our Categories,” 1227. 112. Vicki Schultz, “Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument,” Harvard Law Review 103, no. 8 (1990): 1750– 843. 113. Lauren B. Edelman, Aaron C. Smyth, and Asad Rahim, “Legal Dis-

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crimination: Empirical Sociolegal and Critical Race Perspectives on Antidiscrimination Law,” Annual Review of Law and Social Science 12 (2016). 114. James S. Bryan, “Sexual Harassment as Unlawful Discrimination under Title VII of the Civil Rights Act of 1964,” Loyola of Los Angeles Law Review 14, no. 1 (1980): 25– 56; Vicki Schultz, “Reconceptualizing Sexual Harassment,” Yale Law Journal 107, no. 6 (1998): 1683– 805. 115. Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven, CT: Yale University Press, 1979), 1. 116. MacKinnon used the term condition of work harassment, but it has come to be known as hostile work environment harassment. Ibid., 40. 117. 45 Fed. Reg. 74676 (Nov. 10, 1980), codified at 29 C.F.R. § 1604.11. 118. Joanna L. Grossman, “The First Bite Is Free: Employer Liability for Sexual Harassment,” University of Pittsburgh Law Review 61, no. 3 (2000): 671– 740. 119. MacKinnon, Sexual Harassment of Working Women. 120. 477 U.S. 57 (1986). 121. Id. at 64. Mechelle Vinson, the plaintiff, suffered no tangible economic loss but stated that she had been subjected by her supervisor to fondling and repeated demands for sexual intercourse and had been raped on several occasions. Id. at 60. 122. Id. at 65. 123. 524 U.S. 775 (1998). 124. 524 U.S. 742 (1998). 125. Ellerth, 524 U.S. at 761; Faragher, 524 U.S. at 805. 126. Ellerth, 524 U.S. at 759. If the plaintiff can affi rmatively prove negligence, the company will always be liable for hostile work environment harassment, no matter what the harassing employee’s position is relative to the plaintiff. Thus, the Court described the negligence standard as “a minimum standard for employer liability under Title VII.” Id. 127. Ellerth, 524 U.S. at 765; Faragher 524 U.S. at 807. 128. 133 S. Ct. 2434 (2013). 129. Id. at 2454. 130. See Joanne Deschenaux, “Supreme Court Tries to Defi ne Supervisor,” Society for Human Resource Management, November 27, 2012, http://www.shrm .org/ legalissues/employmentlawareas/ pages/supreme - court- defi ne - supervisor .aspx. 131. Talesh, “Legal Intermediaries.” 132. Van Wezel Stone, “Yellow Dog Contract”; Roma, “Meaningful Judicial Review.” 133. Alexander J.S. Colvin, “An Empirical Study of Employment Arbitration: Case Outcomes and Processes,” Journal of Empirical Legal Studies 8, no. 1 (2011): 1– 23.

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134. Judith Resnik, “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights,” Yale Law Journal 124, no. 8 (2015): 2680. 135. 415 U.S. 36 (1974). 136. Id. at 59– 60. The Court also applied Gardner- Denver to Fair Labor Standards Act wage claims in Barrentine v. Arkansas- Best Freight System, Inc., 450 U.S. 728 (1981), holding that a worker’s loss in arbitration under a collective bargaining agreement did not preclude the worker from pursuing statutory claims in court based on the same underlying facts. 137. Enacted in 1925, the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., states that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. § 2. The FAA states that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Id. § 1. As a result, some have argued the FAA does not apply to any employment contracts. But the Court construed the FAA exception narrowly in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 (2001), holding that the phrase “any other class of workers engaged . . . in commerce” referred only to transportation workers. 138. 500 U.S. 20 (1991). 139. The Court has repeatedly affi rmed that federal statutory rights are subject to arbitration unless Congress has indicated otherwise in the statute—no matter how tilted against plaintiffs the arbitration process may be. See American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013); CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012); 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009); Green Tree Financial Corp. v. Randolph, 531 U.S. 79 (2000); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). The Court has even been dismissive of its early decisions’ suggestion that arbitration procedures must allow “effective vindication” of statutory rights. See American Express, 133 S. Ct. at 2310–11 (quoting Mitsubishi, 473 U.S. at 637n19). 140. In Southland Corp. v. Keating, 465 U.S. 1 (1984), the Court held that the FAA preempted the provision of a state law that required a judicial forum (not arbitration) for claims made under that law. Because of an earlier consensus that the FAA did not apply in state courts, one scholar in the 1980s described Southland and two other cases of that decade that applied the FAA to preempt state law as “dramatically expand[ing] the ambit of the FAA.” Linda R. Hirshman, “The Second Arbitration Trilogy: The Federalization of Arbitration Law,” Virginia Law Review 71, no. 8 (1985): 1305– 78. In Perry v. Thomas, 482 U.S. 483, 492 (1987), the Court held that the FAA preempted a state law that mandated

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that plaintiffs be permitted to pursue wage collection claims in court regardless of contrary arbitration agreements. In Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996), the Court affi rmed that while “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements,” courts may not invalidate arbitration agreements on grounds that apply only to such agreements. In Preston v. Ferrer, 552 U.S. 346, 349– 50 (2008), the Court held that “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” In AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011), the Court held that state law that invalidated certain arbitration clauses as unconscionable was preempted by the FAA. 141. The Supreme Court has also invalidated arbitrators’ decisions to allow class arbitration. In Stolt- Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 684 (2010), the Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis” (overriding an arbitration panel’s decision to allow class arbitration in the case when the arbitration agreement was silent on the issue). 142. 131 S. Ct. 1740 (2011). 143. The Court reasoned that the use of unconscionability doctrine to nullify certain class action waivers would “interfere . . . with fundamental attributes of arbitration.” Id. at 1748. 144. 133 S. Ct. 2304 (2013). 145. Lower courts have already applied Italian Colors to uphold class action waivers for other statutory claims, including Fair Labor Standards Act collective actions. The National Labor Relations Board had ruled otherwise, fi nding such class action waivers to confl ict with the National Labor Relations Act, but it was reversed by the Fifth Circuit in December 2013. D.R. Horton, Inc. v. National Labor Relations Board, 737 F.3d 344 (5th Cir. 2013). 146. S. 878 and H.R. 1844. 147. 79 Fed. Reg. 45309 (July 31, 2014). 148. Nielsen, Nelson, and Lancaster, “Individual Justice or Collective Legal Mobilization?” 149. Fed. R. Civ. P. 8(a)(2). 150. Fed. R. Civ. P. 12(b)(6). 151. 355 U.S. 41 (1957). 152. The specific language read as follows: “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. at 45–46. 153. 550 U.S. 544 (2007).

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154. The Court held that the complaint must contain sufficient facts to “raise a right to relief above the speculative level” and push the claim over “the line between possibility and plausibility of ‘entitle[ment] to relief.’” Id. at 555– 57. 155. Id. at 557– 60. The Court also rejected the generous “no set of facts” language in Conley, concluding that “[t]he phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard.” Id. at 563. 156. 556 U.S. 662 (2009). In Iqbal, the Court considered whether a complaint was sufficient to state claims against high-ranking government officials, who possessed qualified immunity. Id. Qualified immunity renders officials immune to suit unless they have violated “clearly established statutory or constitutional rights.” Id. at 672. Iqbal’s complaint alleged that John Ashcroft, as the attorney general, and Robert Mueller, as FBI director, had “adopted an unconstitutional policy that subjected him to harsh conditions of confi nement on account of his race, religion, or national origin.” Id. at 666. Because of the intent requirement, liability for unconstitutional discrimination required that both officials adopted the policies “for the purpose of discriminating.” Id. at 676– 77. The Court noted that under Twombly, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 157. The Iqbal Court emphasized fi rst that a reviewing court need not accept “legal conclusions” contained in the complaint. Id. at 678. Second, after a court has eliminated legal conclusions, assessing whether the remaining facts “state a plausible claim for relief” will “be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 678– 79. In Iqbal, the Court concluded that the allegations that Ashcroft and Mueller “‘knew of, condoned, and willfully and maliciously agreed to subject [Iqbal]’ to harsh conditions of confi nement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest’” were “nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim” and, hence, could not credited as factual allegations. Id. at 680– 81. The Court then concluded that the remaining allegations, which charged that the FBI arrested and detained thousands of Muslim men in highly restrictive conditions, were consistent with but did not “plausibly establish” a discriminatory purpose on Ashcroft’s or Mueller’s part. Id. at 681– 83. 158. Id. at 679. 159. David Engstrom conducted a meta-analysis of empirical analyses of Twiqbal and found mixed results, but suggested that the selection effect on fi ling may be the most substantial impact of Twiqbal. David Freeman Engstrom, “The Twiqbal Puzzle and Empirical Study of Civil Procedure,” Stanford Law Review 65, no. 6 (2013): 1203–48.

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160. Patricia W. Hatamyar, “The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?,” American University Law Review 59, no. 3 (2010): 553– 634. 161. Noting that social-psychological research suggests that decision makers exhibit aversive racism in ambiguous situations, Victor Quintanilla examined the impact of Twiqbal in race discrimination and racial harassment cases in claims where the trial court had to decide whether an African American plaintiff had sufficiently pleaded discrimination. Victor D. Quintanilla, “Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination,” Michigan Journal of Race & Law 17, no. 1 (2011): 1– 61. 162. Ibid. Quintanilla also found that, post-Iqbal, white judges dismissed 57.5  percent of black plaintiffs’ claims whereas black judges dismissed only 33.3  percent of black plaintiffs’ claims. This difference is borderline statistically significant, which is notable given the small sample size. Quintanilla concluded that when judges draw inferences at the pleading stage, without the benefit of discovery, their judgments are more likely to be influenced by implicit racial biases. Engstrom’s meta-analysis of studies analyzing the Twiqbal effect found that studies range from as high as those reported by Quintanilla to results that are not statistically significant. Engstrom, “Twiqbal Puzzle.” He argued that the effects found by Quintanilla and others are largely selection effects due to the use of Westlaw or Lexis as a database. While it is true that these databases under represent unpublished cases, it is also the case that Westlaw and Lexis are the primary sources of law used by jurists and judges, and thus may accurately represent the most influential sources of precedent. Douglas D. McFarland, “Drop the Shoe: A Law of Personal Jurisdiction,” Missouri Law Review 68, no. 4 (2003): 753– 812; Stephen B. Burbank, “Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting toward Bethlehem or Gomorrah?,” Journal of Empirical Legal Studies 1, no. 3 (2004): 591– 626; Hillel Y. Levin, “Making the Law: Unpublication in the District Courts,” Villanova Law Review 53, no. 5 (2008): 973–1002; Edelman et al., “When Organizations Rule.” 163. A study by law and economics scholar Jonah Gelbach calls into question the capacity of judges to evaluate merit at the dismissal stage. Jonah B. Gelbach, “Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery,” Yale Law Journal 121, no. 8 (2012): 2270– 345. Gelbach examined summary judgment motions before and after Twiqbal. If the Court’s assumption that judges can evaluate merit at this stage were correct, then the rate at which judges grant summary judgment after Twiqbal would fall because fewer nonmeritorious claims would survive the pleading stage. He found no such decline. 164. Federal Rule of Civil Procedure 56(a) states the following: “A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall

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grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” 165. In the representative sample of federal employment decisions between 1965 and 1999 that Linda Krieger and I collected, only 1.5 percent of summary judgment motions were brought by the plaintiff. 166. See Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure, vol. 10A (New York: West, 2013), § 2711. Judge Patricia Wald of the D.C. Circuit wrote: “[U]ntil well past mid- century judges used it only with great caution.” Patricia M. Wald, “Summary Judgment at Sixty,” Texas Law Review 76, no. 7 (1998): 1904. But cf. Burbank, “Vanishing Trials and Summary Judgment,” 620. Burbank suggests that there may not be any reliable empirical evidence supporting these general claims of disuse. 167. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 168. In Matsushita, an antitrust case and the fi rst of the three cases, the Court emphasized that the party opposing a summary judgment motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” 475 U.S. at 586. The Court raised the burden for the nonmoving party, at least under some circumstances, by stating: “[I]f the factual context renders respondents’ claim implausible . . . respondents must come forward with more persuasive evidence to support their claim than would otherwise be necessary.” Id. at 587. Next, in Anderson, a libel case, the Court stated: “If the evidence is merely colorable  .  .  . or is not significantly probative  .  .  . summary judgment may be granted.” 477 U.S. at 250– 51. The Court also emphasized that summary judgment could be granted even when the defendant’s state of mind was at issue, a point of particular importance for employment suits alleging intentional discrimination. 477 U.S. at 256– 57. Finally, in Celotex, an asbestos wrongful death case, the Court ruled that summary judgment must be granted against a plaintiff who is unable to offer evidence as to an element of his or her claim, once suffi cient time for discovery has passed. 477 U.S. at 322. 169. 477 U.S. at 323– 25. 170. Id. at 327 (quoting Fed. R. Civ. P. 1). 171. Linda Krieger and I collected these data as part of a larger project on judicial deference to institutionalized organizational practices. For details on the sample and methodology, see Edelman et al., “When Organizations Rule.” 172. Figure 3.2 is based on the original data set that I collected and analyzed with Linda Krieger, covering the years 1965–1999, and a follow-up data set that I collected and analyzed with Brent Nakamura, covering the years 2004, 2009,

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and 2014. The graph begins in 1973, excluding nineteen opinions prior to that date because of the very small number of summary judgment opinions (n = 3). 173. Albiston, “Rule of Law”; Nancy Gertner, “Losers’ Rules,” Yale Law Journal Online 122 (2012): 109– 24. 174. Sociologists Jill Weinberg and Laura Beth Nielsen avoided the selection bias in written opinions by examining a sample of 1,672 federal district court fi lings involving summary judgment motions and employment discrimination between 1988 and 2003. They found that of the 522 cases involving summary judgment, employers were granted a summary judgment that terminated the plaintiff’s case 56 percent of the time. Weinberg and Nielsen’s figure of 56 percent is lower than our district court result of 61 percent because our sample of written opinions includes selection bias. Nonetheless, written opinions have a greater influence on future decisions. Jill D. Weinberg and Laura Beth Nielsen, “Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking,” Southern California Law Review 85, no. 2 (2012). 175. Employment decisions, moreover, appear more likely to involve defendant victories through summary judgment than is the case for other types of claims. A Federal Judicial Center analysis of cases terminated in fi scal year 2006 examined more than forty-five thousand summary judgment motions, disaggregated by case category. They reported that summary judgment motions played a more prominent role in discrimination cases than in contracts and torts cases, and that they were more likely to terminate the litigation. Memorandum to Judge Michael Baylson from Joe Cecil and George Cort, Federal Judicial Center, “Report on Summary Judgment Practice across Districts with Variations in Local Rules,” August 13, 2008, www.fjc.gov/public/pdf.nsf/ lookup/sujulrs2 .pdf/ $fi le/sujulrs2 .pdf. 176. Ibid. Weinberg and Nielsen found that both the race of the judge (usually white) and the nature of the case may affect the likelihood that judges will grant summary judgment. White judges were significantly more likely to grant employers summary judgment than were minority judges; white judges granted summary judgment more often when the plaintiff was a minority (the reverse was also true, but most judges were white); and summary judgment was more likely to be granted in sex discrimination cases relative to other types of cases. Weinberg and Nielsen, “Examining Empathy.” 177. Under Federal Rule of Civil Procedure 23(a), there must be enough members of the class (“numerosity”), there must be questions of law or fact common to the class (“commonality”), the claims of the class representative must be typical of the class (“typicality”), and the named plaintiff must protect the interests of the class (“adequacy of representation”). Rule 23(b) specifies three types of class actions: (1) where proceeding with separate lawsuits could result in inconsistent decisions with respect to class members or resolution of the plain-

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tiff’s dispute would be dispositive of the claims of other class members; (2) where the plaintiff’s requested changes (injunctive relief) or rulings (declaratory relief) would be appropriate for the entire class; or (3) where there are questions of law or fact that are common to the entire class and a class action is the best way of resolving the case. 178. See Note, “Certifying Classes and Subclasses in Title VII Suits,” Harvard Law Review 99, no. 3 (1986): 619– 39. (Although Harvard Law Review notes are unsigned, this one was written by Elena Kagan, now a Supreme Court justice.) The across-the-board rule originated in the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). The Court reasoned: “[T]he Damoclean threat of a racially discriminatory policy hangs over the racial class and is a question of fact common to all members of the class.” 417 F.2d at 1124 (quoting Hall v. Werthan Bag Corp., 251 F. Supp. 184, 186 [M.D. Tenn. 1966]). 179. Note, “Certifying Classes and Subclasses in Title VII Suits.” 180. 457 U.S. 147 (1982). 181. Id. at 156. 182. Id. at 159. 183. See Robert H. Klonoff, “The Decline of Class Actions,” Washington University Law Review 90, no. 3 (2013): 747– 51, for a description of the general trend of courts delving into merits at class certification. 184. 131 S. Ct. 2541 (2011). 185. Some legal scholars contend that the plaintiffs’ lawyers in Wal- Mart were overly ambitious and sought to certify a class that was too broad and simply infeasible under current legal standards. See, e.g., Deborah M. Weiss, “A Grudging Defense of Wal- Mart v. Dukes,” Yale Journal of Law & Feminism 24, no. 1 (2012): 119– 74. 186. Research suggests that women are less likely than men to be willing to relocate for a better job. William T. Bielby and Denise D. Bielby, “I Will Follow Him: Family Ties, Gender-Role Beliefs, and Reluctance to Relocate for a Better Job,” American Journal of Sociology 97, no. 5 (1992): 1241– 67. 187. Krieger, “Watched Variable Improves.” 188. For example, in a subsequent case in the Seventh Circuit, McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488 (7th Cir. 2012), the court did certify a class of current and former African American employees who had allegedly experienced race discrimination, fi nding that, unlike in WalMart, the managers exercised discretion “only within a framework established by the company.” But in an Eighth Circuit case, Bennett v. Nucor Corp., 656 F.3d 802, 815–16 (8th Cir. 2011), the court followed the logic in Wal- Mart to deny class certification to a class of African American employees alleging pervasive racism in a steel plant in Arkansas, though the Fourth Circuit, in Brown v. Nucor Corp., 576 F.3d 149, 151 (4th Cir. 2009), had previously reversed a lower court’s refusal

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to certify a quite similar class in a suit against the same company regarding analogous practices in a plant in South Carolina. 189. See, e.g., Michael Selmi, “Theorizing Systemic Disparate Treatment Law: After Wal- Mart v. Dukes,” Berkeley Journal of Employment & Labor Law 32, no. 2 (2011): 477– 512. 190. Bumiller, Civil Rights Society. 191. Nielsen, Nelson, and Lancaster, “Individual Justice or Collective Legal Mobilization?”; Albiston, Edelman, and Milligan, “Dispute Tree.” 192. Edelman, Smyth and Rahim, “Legal Discrimination.” 193. Andrew D. Martin and Kevin M. Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999,” Political Analysis 10, no. 2 (2002): 134– 53. See also the “Project Description” webpage for a dynamic representation of Supreme Court politics over time based on the so- called Martin- Quinn scores, http://mqscores.berkeley.edu/index.php. 194. Galanter, “Why the ‘Haves’ Come Out Ahead.” 195. John P. Heinz and Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation, 1977); Heinz et al., Urban Lawyers. 196. Galanter, “Why the ‘Haves’ Come Out Ahead.” 197. Robert Cooter and Lewis Kornhauser, “Can Litigation Improve the Law without the Help of Judges?” Journal of Legal Studies 9, no. 1 (1980): 139– 63; Robert D. Cooter, “Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant,” University of Pennsylvania Law Review 144, no. 5 (1996): 1643– 96. 198. Albiston, “Rule of Law,” 878. 199. Peter Siegelman and John J. Donohue III, “Studying the Iceberg from Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases,” Law & Society Review 24, no. 5 (1990): 1137. 200. Ibid.; Elizabeth M. Schneider, “The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases,” University of Pennsylvania Law Review 158, no. 2 (2010): 517– 70. 201. Krieger, “Content of Our Categories”; Gertner, “Losers’ Rules,” 117. 202. Krieger, “Content of Our Categories”; Gertner, “Losers’ Rules,” 118; Kerri Lynn Stone, “Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law,” Missouri Law Review 77, no. 1 (2012): 149– 98. 203. Linda Hamilton Krieger and Susan T. Fiske, “Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment,” California Law Review 94, no. 4 (2006): 997–1062; Gertner, “Losers’ Rules,” 121– 22. 204. Linda Hamilton Krieger, “The Intuitive Psychologist behind the Bench: Models of Gender Bias in Social Psychology and Employment Discrimination

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Law,” Journal of Social Issues 60, no. 4 (2004): 835–48; Victor D. Quintanilla and Cheryl R. Kaiser, “The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias,” California Law Review 104 (forthcoming 2016).

Chapter Four 1. The theoretical argument on professional framing of legal risk in this chapter draws on Edelman, Abraham, and Erlanger, “Professional Construction of Law.” (I now prefer the term “framing” to “construction.”) Shauhin Talesh has since further developed these arguments, focusing on the framing of law and risk by the insurance industry. Talesh, “Legal Intermediaries.” 2. Lesley Mackay and Derek Torrington, The Changing Nature of Personnel Management (London: Institute of Personnel Management, 1986); Shaun Tyson, “From Personnel Management to HRM: How Did This Field of Work Develop?,” in Essentials of Human Resource Management (Oxford: Butterworth-Heinemann, 2006), 61– 83. 3. Many educational opportunities are in business colleges, but quite a few universities offer degrees in management with a concentration in HR. Cornell University offers a doctoral program in human resource studies through its Industrial and Labor Relations School. In 2015 the Society for Human Resource Management launched its own certification program; see http://www.shrm.org/ certification/pages/default.aspx. 4. Society for Human Resource Management, http://www.shrm.org. 5. Andrew Delano Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago: University of Chicago Press, 1988). 6. Bisom-Rapp, “Bulletproofi ng the Workplace.” 7. “Business and Legal Resources Completes Recapitalization with NewStar and Northcreek,” June 19, 2013, PRWeb, http://www.prweb.com/releases/2013/6/ prweb10846941.htm. 8. Talesh, “Legal Intermediaries.” 9. Shari Caudron, “What Is Employment Practices Liability?,” Personnel Journal 75, no. 12 (1996): 36. 10. Joan Gabel et al., “Evolving Confl ict between Standards for Employment Discrimination Liability and the Delegation of That Liability: Does Employment Practices Liability Insurance Offer Appropriate Risk Transference?,” University of Pennsylvania Journal of Labor and Employment Law 4, no. 1 (2001): 1– 36. 11. Two websites are HR.com (http://www.hr.com) and Human Resource Management (http://managementhelp.org/ humanresources/index.htm). 12. See, for example, HR Daily Advisor, http:// hrdailyadvisor.blr.com.

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13. Examples are PeopleSoft, http://www.oracle.com/peoplesoft/index.html; PeopleTrak, http://www.people-trak.com; and iVantage, http://www.spectrumhr .com/ HRSoftware.htm. 14. Laura Beth Nielsen and Robert Nelson, “Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System,” Wisconsin Law Review 2005, no. 2: 663– 712; Clermont and Schwab, “Employment Discrimination Plaintiffs”; Linda Hamilton Krieger, Rachel Kahn Best, and Lauren B. Edelman, “When ‘Best Practices’ Win, Employees Lose: Symbolic Compliance and Judicial Inference in Federal Equal Employment Opportunity Cases,” Law & Social Inquiry 40, no. 4 (2015): 843– 79. 15. Stephen W. Pruitt and Leonard L. Nethercutt, “The Texaco Racial Discrimination Case and Shareholder Wealth,” Journal of Labor Research 23, no. 4 (2002): 685– 93. 16. Edelman, Abraham, and Erlanger, “Professional Construction of Law.” 17. There are statutory restrictions on employment at will, but they apply only under limited circumstances and protect only certain classes of employees. The National Labor Relations Act, 29 U.S.C. §§ 151–169, for example, prohibits employers from fi ring employees because of union activities; the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., prohibits employers from fi ring on the basis of race, color, sex, religion, or national origin; the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq., prohibits dismissal of persons older than forty on the basis of age; and the Americans with Disability Act of 1990, 42 U.S.C. §§ 12101 et seq., prohibits dismissal of persons with disabilities where the disabilities can be accommodated. Most employees, however, are not covered by an individual contract or a collective bargaining agreement, and most discharges are not in violation of a protective statute. 18. The fi rst American discussion of employment at will was in 1877, in section 134 of Horace Wood’s A Treatise on the Law of Master and Servant. Horace Gay Wood, A Treatise on the Law of Master and Servant: Covering the Relation, Duties and Liabilities of Employers and Employees (Albany, NY: J. D. Parsons, Jr., 1877). The employment-at-will doctrine was clearly articulated by the Tennessee Supreme Court in 1884 in Payne v. Western & Atlantic Railroad, 81 Tenn. 507, 518–19 (1884): “Men must be left, without interference to buy and sell where they please, and to discharge or retain employees at will for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act per se.” 19. 208 U.S. 161, 175– 76 (1908). 20. Petermann v. International Brotherhood of Teamsters, 344 P.2d 25 (Cal. Ct. App. 1959). 21. Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H. 1974). 22. In Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 639 (1980), the court quoted the Blue Cross supervisory personnel manual as stat-

270

Notes to Pages 84–86

ing, “It is the policy of the company . . . to release employees for just cause only.” The manual further defi ned grounds for termination in terms of the employee’s ability and willingness to work and outlined detailed procedures for handling employee grievances. The court held that the terms laid out in the manual constituted an implied contract. Since Blue Cross & Blue Shield had not followed its own grievance procedure before discharging Toussaint, the court found the company liable for wrongful discharge. 23. Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311 (1981). In Pugh, the court held that a contract need not be an explicit statement but instead could be inferred from a number of factors such as “the duration of [the employee’s] employment, the commendations and promotions he received, the apparent lack of any direct criticism of his work, the assurances he was given, and the employer’s acknowledged policies.” Id. at 329. 24. Jessica A. Magaldi and Olha Kolisnyk, “The Unpaid Internship: A Stepping Stone to a Successful Career or the Stumbling Block of an Illegal Enterprise? Finding the Right Balance between Worker Autonomy and Worker Protection,” Nevada Law Journal 14, no. 1 (2013): 187. I was not able to fi nd a more recent survey of the status of implied contract wrongful termination law across all fi fty states. 25. This section of the chapter is based on the study I conducted in the early 1990s with Howard S. Erlanger and Steven E. Abraham. We conducted a content analysis of articles on wrongful termination in journals read by HR professionals from 1980 through 1989. Journals were chosen based on their circulation as well as on discussions with HR officers regarding the journals they read. Based on a search for all articles on wrongful termination, we found eighty-seven articles: forty-three in HR journals (aimed at HR professionals), thirty in law reviews (aimed at legal academics and judges), and fourteen in law-practice journals (aimed at practicing lawyers). For details of our methodology, see Edelman, Abraham, and Erlanger, “Professional Construction of Law.” 26. David A. Bradshaw and Linda Van Winkle Deacon, “Wrongful Discharge: The Tip of the Iceberg?,” Personnel Administrator 30, no. 11 (1985): 16. 27. Thomas J. Condon and Richard H. Wolff, “Procedures That Safeguard Your Right to Fire,” Harvard Business Review 63, no. 6 (1985): 16. 28. David L. Bacon and Angel Gomez, “How to Prevent Wrongful Termination Lawsuits,” Personnel 65, no. 2 (1988): 70. 29. M. L. Colosi, “Who’s Pulling the Strings on Employment at Will?,” Personnel Journal 63, no. 5 (1984): 56. 30. James N. Dertouzos, Elaine Holland, and Patricia A. Ebener, The Legal and Economic Consequences of Wrongful Termination (Santa Monica, CA: The RAND Corporation, 1988). 31. Ibid., 40; Edelman, Abraham, and Erlanger, “Professional Construction of Law.”

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32. For each of the six states, we reviewed published wrongful termination cases based on the implied contract theory decided between January 1, 1980, and December 31, 1989. We chose 1980 as the date to begin our observations because the fi rst major implied contract case (Toussaint in Michigan) was decided that year. Prior to that date, employers won virtually all implied contract cases. For details of our methodology, see Edelman, Abraham, and Erlanger, “Professional Construction of Law.” 33. In California and Michigan, employees could recover if they proved that they had commenced or continued working for the employer after receiving an assurance (oral or written) that they would not be subject to employment at will. New York and Pennsylvania recognized the implied contract exception but required a higher standard of proof from employees than did California and Michigan. In Missouri the law was unclear until 1988, when the Missouri Supreme Court held that the implied contract cause of action is unavailable in Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661 (Mo. 1988). The Delaware Supreme Court announced its refusal to recognize the implied contract cause of action in Heideck v. Kent General Hospital, 446 A.2d 1095 (Del. 1982). After Heideck, the BNA reports contain only one case in which a plaintiff even attempted to assert an implied contract cause of action. In that case, as in Heideck, the court granted the employer’s motion to dismiss. Thus, employees have not won any implied contract cases in Delaware. 34. A case was deemed to have been “won” by the employee if the court allowed the employee to maintain a wrongful termination cause of action for breach of implied contract. For employee wins, we then distinguished between cases in which employees won on the merits (i.e., they were found to have been wrongfully discharged) and were awarded damages, and those cases in which employers either lost motions to dismiss the case on the pleadings or motions for summary judgment. When employers’ motions to dismiss or for summary judgment were denied, it did not mean that the employee won on the merits of the case; it simply allowed the employee to proceed further with the lawsuit. 35. Some court decisions involved other causes of action, such as sex or race discrimination, in addition to implied contract wrongful termination. Many decisions state how much of the award is allocated to each cause of action. When decisions only state a total amount for multiple causes of actions, we estimate the award for the implied contract claim by averaging the award across the causes of action in which the employee was successful. This estimation is likely to overstate the award for the implied contract theory, as awards for race, sex, or age discrimination actions tend to be greater than those for wrongful termination. 36. In Ritchie v. Michigan Consolidated Gas, 413 N.W.2d 796 (Mich. Ct. App. 1987), the prevailing party in an implied contract lawsuit was awarded $560,000: $40,000 in back pay and $520,000 in front pay. On appeal, although the jury was authorized to award front pay, the case was remanded to the jury to reduce the

272

Notes to Pages 89–95

amount. Even when the damage awards were less substantial, the cases were often remanded to the jury to reduce the damages awarded. See, for example, Walker v. Consumers Power Co., 824 F.2d 499 (6th Cir. 1987). 37. Articles were coded as treating the threat as high where the authors portrayed either the threat of being sued or of losing a lawsuit as high. The graph does not account for statistical significance, but logit analyses showed that, controlling for the profession of the author, articles in HR journals were significantly more likely to portray the legal environment as threatening than were articles in law reviews or law practice journals. Controlling for type of journal, both HR professionals and lawyers were significantly more likely to portray a threat of liability than were academics. Edelman, Abraham, and Erlanger, “Professional Construction of Law.” 38. Business & Legal Resources, http://www.blr.com. 39. Daily memos were coded qualitatively by a research assistant and analyzed using ATLAS.ti. 40. These documents were available through a fourteen- day trial subscription to the BLR compliance portal in 2013. 41. The 261 memos included 273 references to manuals for sale; 126 references to training programs for sale; and 147 references to prewritten forms, policies, or checklists for sale. 42. Each webinar was about one hour long, with the fi nal ten minutes or so reserved for questions that were submitted by e-mail or through a website. Along with BLR, each was cosponsored by one or more organizations that were either other management consulting fi rms or management-side law fi rms. 43. The specific titles were: “What HR Needs to Be Prepared for in 2014” (free; May 7, 2014); “Reference Check Best Practices” (free; May 14, 2014); “Training Today” (free; July 22, 2014); “OFCCP Final Rules for Federal Contractors: New Affi rmative Action and Equal Opportunity Obligations Explained” (fee-based; January 30, 2014); “EEOC Position Statements Explained: Your Organization’s Responses to Discrimination and Retaliation Charges” (fee-based; January 10, 2014); and “Workplace Investigations from Complaint to Closure: A Step-by- Step Guide for HR” (fee-based; March 12, 2014). 44. “EEOC Position Statements Explained: Your Organization’s Responses to Discrimination and Retaliation Charges,” fee-based webinar on January 10, 2014, cosponsored by BLR, HR Hero, and California Employer Resources. 45. The EEOC assigns complaints to one of three groups titled “A, B, or C charges” but does not let employers or employees know which group the complaint has been assigned to. The presenter explained that one can generally tell which group it has been assigned to based on what information the EEOC does or does not request, and advised HR professionals to use that information to decide how much attention to give to each case. 46. The documents downloaded were only a subset of all of those available.

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No attempt was made to sample randomly, but the documents were selected without knowledge as to their content. 47. Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press, 1977); Abbott, System of Professions. 48. Larson, Rise of Professionalism, 180. 49. Bison-Rapp, “Bulletproofi ng the Workplace”; Susan Bisom-Rapp, “Fixing Watches with Sledgehammers: The Questionable Embrace of Employee Sexual Harassment Training by the Legal Profession,” University of Arkansas at Little Rock Law Review 24, no. 1 (2001): 147– 68; Susan Bisom-Rapp, “An Ounce of Prevention Is a Poor Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law,” Berkeley Journal of Employment and Labor Law 22, no. 1 (2001): 1–48. 50. This term is based on legal scholar Jonathan Simon’s book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2007), in which he argued that state officials highlight the threat of crime to rationalize evergreater constraints on individual liberty.

Chapter Five 1. HR professionals were referred to as personnel professionals in the 1960s, but I use the term HR professionals for consistency. 2. Graham, Civil Rights Era; Skrentny, Ironies of Affirmative Action. 3. Pedriana and Stryker, “Strength of a Weak Agency.” 4. In the 1960s the conventional term for black Americans was Negroes. I use the term black except when quoting managers or others speaking at the time. 5. 364 U.S. 454 (1960). 6. Doug McAdam, Political Process and the Development of Black Insurgency, 1930–1970, 2nd ed. (Chicago: University of Chicago Press, 1999); Doug McAdam, “Tactical Innovation and the Pace of Insurgency,” American Sociological Review 48, no. 6 (1983): 735– 54; Aldon Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984); Doug McAdam, Freedom Summer (New York: Oxford University Press, 1988); Lauren B. Edelman, Gwendolyn Leachman, and Doug McAdam, “On Law, Organizations, and Social Movements,” Annual Review of Law and Social Science 6 (2010): 653– 85. 7. Skrentny, Ironies of Affirmative Action, 89– 90. 8. John Perry, “Business—Next Target for Integration?,” Harvard Business Review 41, no. 2 (1963): 104. 9. Described as “businessmen,” nearly half of the respondents were top

274

Notes to Pages 104–108

management, 35 percent were middle management, and 17 percent were nonmanagement, including professionals. To address the concern that managers would give the socially desirable answer, the researchers asked about factors that mattered in their own organization and factors that matter in business in general, arguing that managers’ actual views would be reflected in the category of what happens in business in general. Garda W. Bowman, “Problems in Review: What Helps or Harms Promotability?,” Harvard Business Review 42, no. 1 (1964): 6– 26, 184– 96. 10. Ibid., 8. 11. Ibid., 186. 12. Garda W. Bowman, N. Beatrice Worthy, and Stephen A. Greyser, “Are Women Executives People?,” Harvard Business Review 43, no. 4 (1965): 14– 28, 164– 78. 13. The usual HBR survey is based on HBR readers. To fi nd a sufficient number of women executives, however, the authors had to go to professional and trade directories. Ibid., 16. 14. Richard S. Barrett, “Gray Areas in Black and White Testing,” Harvard Business Review 46, no. 1 (1968): 93. 15. Ibid., 95. 16. Garry M. Whalen and Richard S. Rubin, “Labor Relations and Affi rmative Action: A Tug- of-War,” Public Personnel Management 6, no. 3 (1977): 149– 55. 17. Ibid., 149. 18. Herbert R. Northrup, “Equal Opportunity and Equal Pay,” Human Resource Management 3, no. 3 (1964): 26. 19. Richard Edwards, Contested Terrain: The Transformation of the Workplace in the Twentieth Century (New York: Basic Books, 1979); Sanford M. Jacoby, Employing Bureaucracy: Managers, Unions, and the Transformation of Work in the 20th Century (Mahwah, NJ: Lawrence Erlbaum Associates Publishers, 2004). 20. Edelman, “Legal Environments and Organizational Governance.” 21. See, e.g., Neal E. Drought, “Grievances in the Non-union Situation,” Personnel Journal 46, no. 6 (1967): 331– 37. Others, however, worried that the presence of a grievance procedure could encourage unionization. See Walter V. Ronner, “Handling Grievances of Nonunionized Employees,” Personnel 39, no. 2 (1962): 56– 62, who discussed, but argued against, the argument that grievance procedures encouraged unionization. 22. James N. Baron, P. Devereaux Jennings, and Frank R. Dobbin, “Mission Control? The Development of Personnel Systems in U.S. Industry,” American Sociological Review 53, no. 4 (1988): 497– 514; Jacoby, Employing Bureaucracy. 23. These states were New York and New Jersey in 1945; Massachusetts in 1946; Connecticut in 1947; New Mexico, Oregon, Rhode Island, and Washington

Notes to Pages 109–113

275

in 1949; Alaska in 1953; Michigan, Minnesota, and Pennsylvania in 1955; Colorado and Wisconsin in 1957; California and Ohio in 1959; Delaware in 1960; Idaho, Illinois, Kansas, and Missouri in 1961; and Hawaii, Indiana, Iowa, and Vermont in 1963. Northrup, “Equal Opportunity and Equal Pay.” 24. Dobbin, Inventing Equal Opportunity; Graham, Civil Rights Era. 25. Sovern, Legal Restraints, 106. 26. Ibid., 108– 9; Graham, Civil Rights Era, 47–49. 27. Sovern, Legal Restraints, 109. 28. Ibid., 111. 29. President’s Committee on Equal Employment Opportunity, “Plans for Progress” (August 1964), 2; Sovern, Legal Restraints, 117. 30. Sovern, Legal Restraints, 117–18. 31. Ibid., 118–19. 32. Ibid., 119. 33. Ibid., 114–16. 34. Judson MacLaury, To Advance Their Opportunities: Federal Policies toward African American Workers from World War I to the Civil Rights Act of 1964 (Knoxville, TN: Newfound Press, 1964), 226. 35. Judson MacLaury, “President Kennedy’s E.O. 10925: Seedbed of Affi rmative Action,” Federal History 2 (2010): 56. 36. Dobbin, Inventing Equal Opportunity. 37. Edelman, “Legal Ambiguity and Symbolic Structures.” 38. EEO grievance procedures were defi ned as grievance procedures available for EEO complaints. 39. The data for this analysis come from a nationwide phone and mail survey of organizational EEO and affi rmative action (AA) practices conducted for me by the Gallup Organization during spring 1989. The survey was administered to a probability sample of 346 organizations, consisting of 248 private fi rms, 50 colleges and universities (which I refer to as “colleges”), and 48 government agencies at the federal, state, and local (county and city) levels. The survey consisted of fi fteen- to twenty-five-minute phone interviews followed by a ten-page mail survey. Response rates for the phone survey were 56 percent for business organizations, 50 percent for colleges, and 45 percent for government agencies. The follow-up mail survey had response rates of 57 percent for business organizations, 63 percent for colleges, and 69 percent for government agencies. I collected retrospective event– history data on changes in EEO and AA practices, structures, and policies from 1964 to 1989. For more details of the study, see Edelman, “Legal Ambiguity and Symbolic Structures.” 40. Krieger, “Watched Variable Improves.” 41. Colleges included both public and private colleges and universities. 42. I used multivariate event-history models to model the rate of EEO office

276

Notes to Pages 114–120

creation. Detailed results of those analyses may be found in Edelman, “Legal Ambiguity and Symbolic Structures.” 43. Alexandra Kalev and Frank Dobbin, “Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits over Time,” Law & Social Inquiry 31, no. 4 (2006): 855– 903. 44. Jonathan S. Leonard, “The Impact of Affi rmative Action on Employment,” Journal of Labor Economics 2, no. 4 (1984): 439– 63; Sheryl Skaggs, “Discrimination Litigation: Implications for Women and Minorities in Retail Supermarket Management” (PhD diss., North Carolina State University, 2001). 45. Detailed results of those analyses may be found in Edelman, Uggen, and Erlanger, “Endogeneity of Legal Regulation.” 46. Sutton et al., “Legalization of the Workplace.” 47. Edelman, “Legal Ambiguity and Symbolic Structures.” 48. Dobbin et al., “Equal Opportunity Law”; Sutton et al., “Legalization of the Workplace”; Dobbin and Sutton, “Strength of a Weak State”; Dobbin, Inventing Equal Opportunity. 49. Erin Kelly and Frank Dobbin, “Civil Rights Law at Work: Sex Discrimination and the Rise of Maternity Leave Policies,” American Journal of Sociology 105, no. 2 (1999): 455– 92. 50. James E. Corzine, “Structure and Utilization of a Grievance Procedure,” Personnel Journal 46, no. 8 (1967): 484– 89; Isidore Silver, “The Corporate Ombudsman,” Harvard Business Review 45, no. 3 (1967): 77– 87. 51. Edelman, “Legal Environments and Organizational Governance.” 52. Cary D. Thorp Jr., “Fair Employment Practices: The Compliance Jungle,” Personnel Journal 52, no. 7 (1973): 646. 53. Edward J. Giblin and Oscar A. Ornati, “A Total Approach to EEO Compliance,” Personnel 51, no. 5 (1974): 34. 54. Herbert P. Froehlich and Dennis A. Hawver, “Compliance Spinoff: Better Personnel Systems,” Personnel 51, no. 1 (1974): 64, 68. 55. EEOC Guidelines on Discrimination Because of Sex, 45 Fed. Reg. 25025 (April 11, 1980), codified at 29 C.F.R. § 1604.11, http:// heinonline.org/ HOL/ Page ?handle=hein.cfr/cfr1980085&id=929&collection=cfr#929. Section 1604.11(c) was replaced in 1999 by Appendix A to section 1604.11, which referred to the EEOC Compliance Manual, 64 Fed. Reg. 58334 (Oct. 29, 1999), http:// heinonline .org/ HOL/ Page?handle=hein.cfr/cfr2000102&id=192&collection=cfr#192. 56. Patricia Linenberger and Timothy J. Keaveny, “Sexual Harassment: The Employer’s Legal Obligations,” Personnel 58, no. 6 (1981): 65– 66. 57. 477 U.S. 57 (1986). 58. David W. Ewing, “Due Process: Will Business Default?,” Harvard Business Review 60, no. 6 (1982): 121. 59. Ibid., 120– 21. 60. Frank Dobbin and Erin L. Kelly, “How to Stop Harassment: Professional

Notes to Pages 121–130

277

Construction of Legal Compliance in Organizations,” American Journal of Sociology 112, no. 4 (2007): 1203–43. 61. Alfred G. Feliu, “Legal Consequences of Nonunion Dispute-Resolution Systems,” Employee Relations Law Journal 13, no. 1 (1987): 84. 62. Ibid., 92. 63. Gloria Gery, “Equal Opportunity—Planning and Managing the Process of Change,” Personnel Journal 56, no. 4 (1977): 188. 64. As noted in chapter 1, my perspective differs from those of John Skrentny, Frank Dobbin, and Charles Epp as well as numerous other scholars. Although these authors recognize some limitations of organizational policies, their books generally treat organizational structures as evidence of progress. In my view, many organizations have made substantial progress and many have not. In reading EEO cases in the federal courts, one sees myriad examples of policies that appear to be largely ineffective. See Skrentny, Ironies of Affirmative Action; Skrentny, After Civil Rights; Dobbin, Inventing Equal Opportunity; Epp, Making Rights Real.

Chapter Six 1. Edelman, Erlanger, and Lande, “Internal Dispute Resolution.” 2. Edward J. Giblin and Oscar A. Ornati, “Beyond Compliance: EEO and the Dynamics of Organizational Change,” Personnel 52, no. 5 (1975): 38– 50. 3. “Reference Check Best Practices,” Business & Legal Resources, May 14, 2014. No longer available but see also “Background Checks Update: HR Best Practices Given EEOC Guidance, the FCRA & Ban-the-Box Laws,” Business & Legal Resources, http://store.blr.com/ backgroundchecks- 091614 - cd. 4. Edelman, Erlanger, and Lande, “Internal Dispute Resolution,” 514. 5. Business necessity was, at the time, the legal standard that employers had to prove to justify a practice with a disparate impact. Griggs v. Duke Power Co., 401 U.S. 424 (1971). 6. Edelman, Erlanger, and Lande, “Internal Dispute Resolution,” 514. 7. Ibid., 515. 8. Ibid., 512. 9. Interview on fi le with author. 10. Edelman, Erlanger, and Lande, “Internal Dispute Resolution,” 516. 11. Ibid. 12. Ibid. 13. Ibid., 517. 14. Educational remedies are common today. Many organizations offer sexual harassment training or diversity training. In California, for example, all organizations with fi fty or more employees are required by law to provide sexual

278

Notes to Pages 130–135

harassment training, and all employees with any supervisory responsibilities must take this training every two years. Having gone through this training on multiple occasions, I fi nd it striking that the training fails to distinguish between actions that would constitute sexual harassment under law and those that are simply advisable as a matter of good judgment. The training advises professors, for example, not to comment on a subordinate’s clothing. Although it might be poor judgment for a professor to tell a teaching assistant that she is wearing a nice dress, few if any judges would fi nd that behavior to be sexual harassment under the law. 15. Edelman, Erlanger, and Lande, “Internal Dispute Resolution,” 525. 16. Ibid., 526. 17. Ibid., 526– 27. 18. Ibid., 527– 28. 19. Interview on fi le with author. 20. Ibid. 21. Marshall, “Idle Rights”; Marshall, “Injustice Frames.” 22. Edelman, Erlanger, and Lande, “Internal Dispute Resolution.” 23. Marshall, “Injustice Frames.” 24. Alexander J. S. Colvin, “Adoption and Use of Dispute Resolution Procedures in the Nonunion Workplace,” Advances in Industrial and Labor Relations 13 (2004): 71– 97. 25. The model arbitration rules promulgated by the Center for Public Resources, for example, specifies that should the employee prevail, the arbitrator may award back pay, reinstatement or front pay in its stead, or up to one year’s wages, but not damages for pain and suffering or punitive damages. Van Wezel Stone, “Yellow Dog Contract,” 1041. 26. Colvin, “Empirical Study of Employment Arbitration.” 27. See, e.g., Van Wezel Stone, “Yellow Dog Contract”; Judith Resnik, “Diffusing Disputes: The Public in the Private of Arbitration, the Private in the Courts, and the Erasure of Rights,” Yale Law Journal 124, no. 8 (2015): 2804– 939. Clyde W. Summers, “Mandatory Arbitration: Privatizing Public Rights, Compelling the Unwilling to Arbitrate,” University of Pennsylvania Journal of Labor and Employment Law 6, no. 3 (2004): 685– 734. 28. Van Wezel Stone, “Yellow Dog Contract,” 1018. 29. John R. Sutton and Frank Dobbin, “The Two Faces of Governance: Responses to Legal Uncertainty in U.S. Firms, 1955–1985,” American Sociological Review 61, no. 5 (1996): 802. 30. William T. Bielby and Michael Bourgeois, “Insuring Discrimination: Making a Market for Employment Practice Liability Insurance” (paper presented at the Annual Meeting of the American Sociological Association, Chicago, IL, August 2002); Talesh, “Legal Intermediaries.”

Notes to Pages 135–139

279

31. Richard S. Betterley, Employment Practices Liability Insurance Market Survey 2013: Rates and Deductibles Up as Carriers Cope with Losses, The Betterley Report, December 2013. 32. Talesh, “Legal Intermediaries.” 33. Betterley, Employment Practices Liability Insurance Market Survey 2013. 34. Ibid.; Bielby and Bourgeois, “Insuring Discrimination”; Talesh, “Legal Intermediaries.” 35. Some of the advice that EPLI loss prevention specialists offer is based solely on risk logic and diverges from institutionalized organizational practices. For example, in an observational study of EPLI conferences, Talesh found that EPLI loss prevention specialists discourage employers from providing performance improvement plans (PIPs), a typical element of progressive discipline plans, because jurors view PIPs as a way to set up employees to be fi red. Talesh, “Legal Intermediaries.” 36. Gary W. Griffi n, Clyde C. Griffi n, and Mark Druskoff, The EPL Book: A Practical Guide to Employment Practices Liability and Insurance, 3rd ed. (Newport Beach, CA: Griffi n Communications, 2001). 37. Mark C. Suchman and Mia L. Cahill, “The Hired Gun as Facilitator: Lawyers and the Suppression of Business Disputes in Silicon Valley,” Law & Social Inquiry 21, no. 3 (1996): 679– 712; Robert L. Nelson and Laura Beth Nielsen, “Cops, Counsel, and Entrepreneurs: Constructing the Role of Inside Counsel in Large Corporations,” Law & Society Review 34, no. 2 (2000): 457– 94. 38. Edelman and Suchman, “When the ‘Haves’ Hold Court.” 39. John W. Meyer and Brian Rowan, “Institutionalized Organizations: Formal Structure as Myth and Ceremony,” American Journal of Sociology 83, no. 2 (1977): 340– 63. 40. Edelman and Petterson, “Symbols and Substance.” 41. James N. Baron, Brian S. Mittman, and Andrew E. Newman, “Targets of Opportunity: Organizational and Environmental Determinants of Gender Integration within the California Civil Service, 1979–1985,” American Journal of Sociology 96, no. 6 (1991): 1362–401. 42. Kalev, Dobbin, and Kelly, “Best Practices or Best Guesses?” 43. Dobbin et al. report that four in ten fi rms offer diversity training and one in five have diversity evaluations. Frank Dobbin, Alexandra Kalev, and Erin Kelly, “Diversity Management in Corporate America,” Contexts 6, no. 4 (2007): 24. 44. Ruth Mandel, “Racing Diversity: Ethnicity, Euphemisms, and ‘Others,’” in Routledge International Handbook of Diversity Studies, ed. Steven Vertovec (New York: Routledge, 2014), 60– 66. 45. Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric.” 46. To select a sample of professional management periodicals, we began with

280

Notes to Pages 139–140

a list of all English-language publications listed under five headings in Business Information Sources: business and economics, management, organizational behavior, human resources or personnel, and training and development. Lorna M. Daniells, Business Information Sources (Berkeley: University of California Press, 1993). We excluded publications that were primarily academic journals. We also excluded those with circulation under twenty thousand or those published outside the United States except for human resources and personnel publications, which were central to the phenomenon under study. This left us with eighteen professional management periodicals. We used these journals to construct two data sets. The fi rst diversity data set was the focus of our study. This data set contained all the articles that referred to diversity (some of which also referred to civil rights, including equal employment opportunity or affi rmative action) and was used for most of the analyses. The civil rights data set was used only to place the diversity data set in historical context. The civil rights data set comprised articles that addressed civil rights (including EEO and affi rmative action) but did not address diversity. Further details on sample selection and coding are available in Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric,” 1604– 5. 47. Stryker, Scarpellino, and Holtzman, “Drum Beat of Quotas in Media Framing.” 48. William B. Johnston and Arnold E. Packer, Workforce 2000: Work and Workers for the 21st Century (Indianapolis, IN: Hudson Institute, 1987). 49. Workforce 2000 predicted that only 15 percent of new entrants to the American workforce would be American-born white males, and the remaining 85 percent of fi rst-time job seekers would be women, minorities, and foreignborn US residents. In fact, Workforce 2000 confused new entrants to the workforce with net additions to the workforce, but even so, the shift in diversity was far less than what Workforce 2000 predicted. Judith J. Friedman and Nancy DiTomaso, “Myths about Diversity: What Managers Need to Know about Changes in the U.S. Labor Force,” California Management Review 38, no. 4 (1996): 54– 77. In fact, in the year 2000, the US Census showed that the workforce remained predominantly white (75 percent), as it is today (see the statistics presented in chapter 1). A later Hudson Institute publication, Workforce 2020, revised the earlier predictions and recognized that diversification would proceed at a substantially slower pace than had originally been predicted. Richard W. Judy and Carol D’Amico, Workforce 2020: Work and Workers in the 21st Century (Indianapolis, IN: Hudson Institute, 1997). 50. For a different perspective, which claims that diversity was “old wine in new wineskins,” see Erin Kelly and Frank R. Dobbin, “How Affi rmative Action Became Diversity Management,” American Behavioral Scientist 41, no. 7 (1998): 978.

Notes to Pages 140–146

281

51. We content coded only the diversity data set and we coded only explicit statements. Our coding scheme was conservative in that coders were instructed not to extrapolate from suggestive or ambiguous statements. Often, articles contained clear defi nitions of diversity, and coding the author’s conception of diversity was straightforward. Other times, constructions of diversity were taken from explicit illustrations peppered throughout an article. Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric.” 52. At the time of this study, sexual orientation was protected under some state and local laws but not federal law. All other categories were protected by federal law. 53. Ronita B. Johnson and Julie O’Mara, “Shedding New Light on Diversity Training,” Training and Development 46, no. 5 (1992): 51– 52. 54. Gillian Flynn, “Hallmark Cares,” Personnel Journal 75, no. 3 (1996): 52. 55. David Altany, “F. Suzanne Jenniches: Sharp Isn’t Strong Enough to Describe Her,” Industry Week 41, no. 5 (1992): 32– 33. 56. Don McNerney, “The Bottom-Line Value of Diversity,” HR Focus 71, no. 5 (1994): 22. 57. Lisa Jenner, “Diversity Management: What Does It Mean?,” HR Focus 71, no. 1 (1994): 11. 58. Bailey W. Jackson, Frank La Fasto, and Henry G. Schultz, “Diversity,” Human Rights Management 31, no. 1– 2 (1993): 23. 59. Richard L. Daft, Understanding Management (Ft. Worth: Dryden, 1995), 362. 60. Victor C. Thomas, “The Downside of Diversity,” Training and Development 48, no. 1 (1994): 62. 61. H. William Vroman, “Review of Differences That Work: Organizational Excellence through Diversity,” Academy of Management Executive 8, no. 3 (1994): 107. 62. Cresencio Torres and Mary Bruxelles, “Capitalizing on Global Diversity,” HR Magazine 37, no. 12 (1992): 31. 63. Malcolm Greenslade, “Managing Diversity: Lessons from the United States,” Personnel Management 23, no. 12 (1991): 28. 64. John R. Schermerhorn Jr., James G. Hunt, and Richard N. Osborn, Organizational Behavior, 6th ed. (New York: John Wiley & Sons, 1997), 42–43. 65. We used a multivariate ordinary-least-squares regression model to model factors associated with the transition in focus beginning in the late 1980s from civil rights to nonlegal conceptions of diversity. For details on the methodology, see Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric,” 1603. 66. John Ryan, James Hawdon, and Allison Branick, “The Political Economy of Diversity: Diversity Programs in Fortune 500 Companies.” Sociological Research Online 7, no. 1 (2002), http://www.socresonline.org.uk/7/1/ryan.html;

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Notes to Pages 146–154

Sharon M. Collins, “From Affi rmative Action to Diversity: Erasing Inequality from Organizational Responsibility,” Critical Sociology 37, no. 5 (2011): 517– 20. 67. Ellen Berrey, The Enigma of Diversity: The Language of Race and the Limits of Racial Justice (Chicago: University of Chicago Press, 2015). 68. Ibid., 43. 69. Ibid., 204. 70. Ibid., 215–16. 71. Walmart, “Walmart 2014 Diversity & Inclusion Report,” http://cdn .corporate .walmart .com/ 04/ 50/ c9c4367040 029f6b2a4aca089d2c/ diversity -inclusion.pdf. 72. ExxonMobil, “Global Diversity,” http://cdn.exxonmobil.com/~/media/ Brochures/2014/Global-Diversity-Booklet _2014.pdf. 73. IBM, “Diversity and Inclusion,” http://www- 03.ibm.com/employment/us/ diverse. 74. Lauren A. Rivera, “Hiring as Cultural Matching: The Case of Elite Professional Service Firms,” American Sociological Review 77, no. 6 (2012): 1011. 75. Ibid., 1010. 76. Cubiks, “Cubiks International Survey on Job and Cultural Fit,” July 2013, http:// www.cubiks .com/ SiteCollectionDocuments/ Files%20ENG/ Research %20Studies%20ENG/Cubiks%20Survey%20Results%20July%202013.pdf. 77. Lauren A. Rivera, “Diversity within Reach: Recruitment versus Hiring in Elite Firms.” Annals of the American Academy of Political and Social Science 639 (2012): 78. 78. Kalev, Dobbin, and Kelly, “Best Practices or Best Guesses?” 79. Berrey, The Enigma of Diversity. 80. Lauren B. Edelman et al., “Legal Ambiguity and the Politics of Compliance: Affi rmative Action Officers’ Dilemma,” Law and Policy 13, no. 1 (1991): 73– 97.

Chapter Seven 1. There are almost as many defi nitions of legal consciousness as there are articles and books about it. Responding to the many uses of the term, Susan Silbey (one of the scholars who developed the construct within the law and society field) declared it “conceptually tortured” and suggested that scholars abandon it. Susan S. Silbey, “After Legal Consciousness,” Annual Review of Law and Social Science 1 (2005): 323– 68. With Silbey’s words in mind, I invoke the notion of a managerialized legal consciousness merely as a theoretical construct that helps to explain how ideas about symbolic structures may move from organizational to legal fields. 2. Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998); Laura Beth Nielsen,

Notes to Pages 154–157

283

License to Harass: Law, Hierarchy, and Offensive Public Speech (Princeton, NJ: Princeton University Press, 2004). 3. Meyer and Rowan, “Institutionalized Organizations”; Susan Silbey, “Legal Consciousness,” in New Oxford Companion to Law, ed. Peter Cane and Joanne Conaghan (Oxford: Oxford University Press, 2008). 4. Susan Silbey, for example, argued that “consciousness entails both thinking and doing, telling stories, complaining, lumping grievances, working, playing, marrying, divorcing, suing a neighbor, or refusing to call the police.” Silbey, “After Legal Consciousness,” 334. The value in this approach is that it emphasizes the tight connection between ideology and action. 5. Blackstone, Uggen, and McLaughlin showed empirically that perceived experiences of sexual harassment and mobilization are distinct but interrelated processes. Amy Blackstone, Christopher Uggen, and Heather McLaughlin, “Legal Consciousness and Responses to Sexual Harassment,” Law & Society Review 43, no. 3 (2009): 631– 68. 6. Meyer and Rowan, “Institutionalized Organizations.” 7. Kaiser et al., “Presumed Fair.” These experiments were designed in part to test arguments that I had made in earlier work about the symbolism of organizations’ internal legal structures. 8. Since awards for diversity efforts could (in my view) be interpreted as awards for substantive progress, I focus on the results that Kaiser and Major obtain for diversity policies and diversity training programs, and for women, affi rmative action structures. 9. E. Allen Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (New York: Plenum, 1988); Tom R. Tyler, “Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group Members Want from the Law and Legal Institutions?,” Behavioral Sciences and the Law 19, no. 2 (2001): 215– 35. 10. Edelman et al., “Endogeneity of Legal Regulation”; Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric”; Edelman et al., “When Organizations Rule.” 11. Tessa L. Dover, Brenda Major, and Cheryl R. Kaiser, “Diversity Initiatives, Status, and System-Justifying Beliefs: When and How Diversity Efforts De-legitimize Discrimination Claims,” Group Processes & Intergroup Relations 17, no. 4 (2014): 486. 12. Laura M. Brady et al., “It’s Fair for Us: Diversity Structures Cause Women to Legitimize Discrimination,” Journal of Experimental Social Psychology 57, no. 1 (2015): 100–110. 13. Kaiser et al., “Presumed Fair.” 14. Ibid.; Toni Schmader, Brenda Major, and Richard H. Gramzow, “Coping with Ethnic Stereotypes in the Academic Domain: Perceived Injustice and Psychological Disengagement,” Journal of Social Issues 57, no. 1 (2001): 93–111. 15. Felstiner, Abel, and Sarat, “Emergence and Transformation of Disputes”;

284

Notes to Pages 158–160

Nielsen, Nelson, and Lancaster, “Individual Justice or Collective Legal Mobilization?”; David M. Trubek et al., Civil Litigation Research Project Final Report (Madison: University of Wisconsin, 1983). 16. Miller and Sarat, “Grievances, Claims, and Disputes,” 544. 17. Felstiner, Abel, and Sarat, “Emergence and Transformation of Disputes.” 18. Miller and Sarat, “Grievances, Claims, and Disputes,” 544. 19. Nielsen, Nelson, and Lancaster, “Individual Justice or Collective Legal Mobilization?;” Phoebe A. Morgan, “Risking Relationships: Understanding the Litigation Choices of Sexually Harassed Women,” Law & Society Review 33, no. 1 (1999): 67– 92; Sara Wakefield and Christopher Uggen, “The Declining Significance of Race in Federal Civil Rights Law: The Social Structure of Employment Discrimination Claims,” Sociological Inquiry 74, no. 1 (2004): 128– 57. 20. Nielsen, Nelson, and Lancaster, “Individual Justice or Collective Legal Mobilization?” 21. Bumiller, Civil Rights Society; Kristin Bumiller, “Victims in the Shadow of the Law: A Critique of the Model of Legal Protection,” Signs 12, no. 3 (1987): 421– 39; Brenda Major and Cheryl R. Kaiser, “Perceiving and Claiming Discrimination,” in Handbook of Employment Discrimination Research, ed. Laura Beth Nielsen and Robert L. Nelson (New York: Springer, 2005), 285– 99. 22. Morgan, “Risking Relationships”; Albiston, Institutional Inequality. 23. Bumiller, Civil Rights Society; Albiston, Institutional Inequality. 24. Quinn, “Paradox of Complaining.” 25. Morrill et al. reported that students are more likely to use quasi-legal than legal forums and most likely to use extralegal forums. Morrill et al., “Legal Mobilization in Schools.” Data from the School Rights Project (conducted by Richard Arum, Calvin Morrill, Karolyn Tyson, and Lauren Edelman) also shows that this pattern holds for teachers. 26. Albiston, Edelman, and Milligan, “Dispute Tree.” 27. Although it might seem that the presence of grievance procedures could directly depress rights mobilization by providing an alternative forum for the resolution of complaints, and many employers create grievance procedures to reduce the risk of lawsuits, the available evidence suggests otherwise. In a study I conducted with Christopher Uggen and Howard Erlanger, we found that the presence of internal grievance procedures was not associated with either an increase or a decrease in the volume of complaints to external fair employment agencies, suggesting that these procedures neither insulate organizations from litigation nor increase litigation. The presence of a grievance procedure was associated with an increase in the volume of internal discrimination complaints, although that association is mediated by the presence of EEO offices and EEO counselors, suggesting that these offices and counselors channel complaints toward internal forums. Edelman, Uggen, and Erlanger, “Endogeneity of Legal Regulation.”

Notes to Pages 160–165

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28. US Merit Systems Protection Board, Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges (Washington, DC: US Government Printing Office, 1995); Jennie Kihnley, “Unraveling the Ivory Fabric: Institutional Obstacles to the Handling of Sexual Harassment Complaints,” Law & Social Inquiry 25, no. 1 (2000): 69– 90; Marshall, “Idle Rights.” 29. Kaiser et al., “Presumed Fair.” 30. Brady et al., “It’s Fair for Us.” 31. Kaiser et al., “Presumed Fair.” 32. Our study of youth rights mobilization found that black and Hispanic high school students were more likely to say that they would file a lawsuit in response to hypothetical discrimination than to have fi led a lawsuit in response to actual (perceived) discrimination. Although these data reflected the behavior of minors, other fi ndings (not published) from the same project showed that this pattern also held for female teachers. Morrill et al., “Legal Mobilization in Schools.” 33. Marshall, “Idle Rights.” 34. Ibid., 115. 35. Quinn, “Paradox of Complaining.” 36. Bisom-Rapp, “Bulletproofi ng the Workplace.” Bisom-Rapp selected onethird of NELA members and sent out 1,213 surveys. The survey had a response rate of 39 percent, or 479 responses. Ibid., 1019. 37. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); Brief Amici Curiae American Sociological Association and the Law and Society Association in Support of Respondents, Wal-Mart v. Dukes, 564 U.S. 338 (2011) (No. 10-277), 2011 WL 757409; Laura Beth Nielsen, Amy Myrick, and Jill D. Weinberg, “Siding with Science: In Defense of ASA’s Dukes vs. Wal- Mart Amicus Brief,” Sociological Methods & Research 40, no. 4 (2011): 646– 67. 38. Krieger and Fiske, “Behavioral Realism.” 39. Galanter, “Why the ‘Haves’ Come Out Ahead.” 40. Bisom-Rapp, “Bulletproofi ng the Workplace.” 41. Ibid., 998. 42. Ibid., 994. 43. Ibid., 989–1011. 44. Bisom-Rapp, “Ounce of Prevention.” 45. Kalev, Dobbin, and Kelly, “Best Practices or Best Guesses?” 46. Ibid.; Bisom-Rapp, “Ounce of Prevention.” 47. Bisom-Rapp, “Ounce of Prevention.” 48. Edelman, Fuller, and Mara-Drita, “Diversity Rhetoric.” 49. Susan Bisom-Rapp, who studied a number of these programs, described one in which employees were shown a video cartoon entitled, A Peacock in the Land of Penguins, www.crmlearning.com. I did not have access to the video but did review the book by the same name: B. J. Gallagher Hateley and Warren H.

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Notes to Pages 165–168

Schmidt, A Peacock in the Land of Penguins: A Fable about Creativity and Courage (San Francisco: Berrett-Koehler, 2001). The story addresses diversity through a fable involving birds, in which the privileged penguins are insensitive toward Sara the Swan, described as an optimistic dreamer with a graceful style and gracious manners, and Mike the Mockingbird, described as a bird who fl ies fast, works hard, and jumps around. Although the moral of the story is that all birds should be accepted, the story itself arguably reifies stereotypes based on gender and race. 50. 477 U.S. 57 (1986). 51. Figure 7.1 is based on Lauren B. Edelman, Christopher Uggen, and Howard S. Erlanger, “The Endogeneity of Legal Regulation: Grievance Procedures as Rational Myth,” American Journal of Sociology 105, no. 2 (1999): 439, table 8. We searched the Westlaw federal case database for all cases from 1964 through 1997 that alleged sex or race discrimination or harassment under Title VII and addressed grievance procedures. The Westlaw search term, which was conducted for each year within the period 1964– 97, was “Title VII” & race racial sex! /P “grievance procedure!”. The search found a total of 477  cases, none prior to 1970. Of these, 161 cases were excluded for one or more of the following reasons: they were not Title VII cases (or the part of the case addressing grievance procedures did not involve Title VII), they did not in fact involve the grievance procedure defense, they did not involve racial or sexual discrimination or harassment, or they were duplicate cases. We also eliminated 177 cases that involved union grievance procedures. This left us with 129 cases, none prior to 1974. 52. 524 U.S. 775 (1998). 53. 524 U.S. 742 (1998).

Chapter Eight 1. I designed the study of judicial deference with my coprincipal investigator and then- colleague at UC Berkeley, Linda Hamilton Krieger. The collaborators who worked with me on analyses of the 1964 to 1999 data, in addition to Linda Krieger, were Scott Eliason, Catherine Albiston, Virginia Mellema, and Rachel Best. For the post-2000 data collection and analysis, I thank Brent Nakamura for superb research assistance. This chapter draws on several articles that have come out of that data set, including Rachel Kahn Best et al., “Multiple Disadvantages: An Empirical Test of Intersectionality Theory in E.E.O. Litigation,” Law & Society Review 45, no. 4 (2011): 991–1025; Edelman et al., “When Organizations Rule”; Krieger, Best, and Edelman, “When ‘Best Practices’ Win.” 2. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

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3. I thank Alan Kluegel for outstanding research assistance in collecting and helping to analyze the EEOC data. 4. C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947 (New York: MacMillan, 1948); Jeffrey A. Segal and Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” American Political Science Review 83, no. 2 (1989): 557– 65; Lee Epstein, William M. Landes, and Richard A. Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, MA: Harvard University Press, 2013). 5. Richard L. Revesz, “Environmental Regulation, Ideology, and the D.C. Circuit,” Virginia Law Review 83, no. 8 (1997): 1717– 72; Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” Virginia Law Review 90, no. 1 (2004): 301– 54; Thomas J. Miles and Cass R. Sunstein, “Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron,” University of Chicago Law Review 73, no. 3 (2006): 823– 81. 6. Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: CQ Press, 1998); Paul J. Wahlbeck, James F. Spriggs, and Forrest Maltzman, “Marshalling the Court: Bargaining and Accommodation on the United States Supreme Court,” American Journal of Political Science 42, no. 1 (1998): 294– 315; Lee Epstein and Jack Knight, “Toward a Strategic Revolution in Judicial Politics: A Look Back, a Look Ahead,” Political Research Quarterly 53, no. 3 (2000): 625– 61. 7. Cornell W. Clayton and Howard Gillman, Supreme Court DecisionMaking: New Institutionalist Approaches (Chicago: University of Chicago Press, 1999); Kevin T. McGuire, “The Institutionalization of the U.S. Supreme Court,” Political Analysis 12, no. 2 (2004): 128–42. 8. Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (New York: Cambridge University Press, 1999). 9. Lee Epstein and Jack Knight, “Reconsidering Judicial Preferences,” Annual Review of Political Science 16 (2013): 11– 31. 10. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench”; Jeffrey  J. Rachlinski, “Processing Pleadings and the Psychology of Prejudgments,” DePaul Law Review 60, no. 2 (2011): 413– 30. 11. Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich, “Judging by Heuristic: Cognitive Illusions in Judicial Decision Making,” Judicature 86, no. 1 (2002): 44– 50. 12. Cheryl R. Kaiser and Brenda Major, “A Social Psychological Perspective on Perceiving and Reporting Discrimination,” Law & Social Inquiry 31, no. 4 (2006): 801– 30; Kaiser et al., “Presumed Fair”; Dover, Major, and Kaiser, “Diversity Initiatives.”

288

Notes to Pages 171–178

13. Kaiser et al., “Presumed Fair,” 504. 14. Amos Tversky and Daniel Kahneman, “Judgment under Uncertainty: Heuristics and Biases,” Science 185, no. 4157 (1974): 1124– 31. 15. Krieger, “Content of Our Categories”; Gertner, “Losers’ Rules.” 16. Michael Selmi, “The Evolution of Employment Discrimination Law: Changed Doctrine for Changed Social Conditions,” Wisconsin Law Review 2014, no. 5: 937–1000. 17. Edelman et al., “When Organizations Rule.” 18. These examples were fi rst discussed in Krieger, Best, and Edelman, “When ‘Best Practices’ Win.” 19. 741 F.2d 1486 (6th Cir. 1984). 20. Id. at 1489. 21. Id. 22. Id. at 1491. 23. The decision was later vacated. 759 F.2d 546 (6th Cir. 1985). Nonetheless, the original decision provides a good example of judicial deference in the context of a race discrimination case. 24. No. 95CV6475JSM, 2000 WL 174923 (S.D.N.Y. Feb. 14, 2000). 25. Where the harasser is a supervisory employee but does not take tangible employment actions, the legal standard is that the employer could be vicariously liable but may advance the affi rmative defense that the employer took reasonable care to prevent and correct any harassment and that the plaintiff failed to take advantage of those opportunities. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). If the harasser is not a supervisory employee, then the plaintiff must show that the employer was negligent. Vance v. Ball State University, 133 S. Ct. 2434 (2013). 26. Quotes taken from Leopold v. Baccarat, Inc., 174 F.3d 261, 265 (2d Cir. 1999), an earlier appellate case involving the same parties. 27. Leopold, 2000 WL 174923 at *2. 28. Id. at *3. 29. No. 97-2258, 1998 WL 152966 (7th Cir. Mar. 26, 1998). 30. Id. at *3. 31. Edelman et al., “When Organizations Rule.” 32. Brent Nakamura and Lauren B. Edelman, “Diversity Structures as Symbolic Metrics in the Federal Courts” (paper in progress). 33. Not all opinions are reported. When a court renders an opinion, it may order that the opinion be published in official case reports; it may make the opinion generally available for public distribution but specify that it be considered legally unpublished and therefore not citable as precedent; or it may simply fi le the opinion, in which case it generally does not appear either in official reporters or in online databases. The Westlaw federal database is based on extensive efforts to include all published and (legally) unpublished cases. The only way to include

Notes to Pages 178–180

289

unreported cases would be to send someone to each jurisdiction to collect them. Such an approach is not only impractical, it is unnecessary as unreported cases would not generally be read and would not be cited by lawyers and judges. 34. We used the Westlaw database to select all federal employment opinions decided during this time period. This yielded 34,578 district court opinions and 16,604 circuit court opinions. Our Westlaw search term was: ((“title vii”) (“age discrimination” / 3 “employment act”) (“rehabilitation act”) (“equal pay act”) (american! / 3 disabilit! / 1 act) (famil! / 3 “medical leave act”) (fmla % (marin! lien))) & DA(aft 1-1-1965 & bef 12-31-1999). This search was performed separately in Westlaw’s Court of Appeals database and in its District Court database and was restricted to cases that were decided between January 1, 1965, and December 31, 1999. 35. We did not include cases brought under the Americans with Disabilities Act of 1990 or its federal sector equivalent, the Rehabilitation Act of 1973, because the accommodation requirement of these laws made them difficult to discern deference in a standard way across opinions. We also excluded the Family and Medical Leave Act of 1993 because of issues involving notice. Many cases raised claims under multiple statutes. We included opinions that involved any of the statutes but coded only the portions of each opinion that pertained to Title VII, the ADEA, the EPA, and the two post– Civil War civil rights statutes. 36. A study by Clermont and Schwab, which was based on district court data, showed a decline in district court cases that began in 1998 and continued at least through 2006. Clermont and Schwab, “Employment Discrimination Plaintiffs.” Our pre-2000 sample was consistent in that there was an apparent decline in the number of cases in the late 1990s. The post-2000 sample, however, shows a dramatic rise in the number of district court cases between 2004 and 2014. 37. The pre-2000 opinions were coded by law students and one doctoral student who had a JD and worked as an administrative judge for the EEOC. All coders had completed both a course in EEO law and a training period of at least one hundred hours, during which they practiced coding opinions that had previously been coded by trained coders. Our coding scheme included data at both the opinion level and the organizational structure level. At the opinion level, we collected data on the courts, judges, plaintiffs, defendants, statutory claims involved in the cases, challenged actions, legal theories on which the claims were based, and a variety of other factors. We coded all organizational structures that were explicitly mentioned in each opinion. Then, for each structure mentioned in the opinion, we coded a variety of structure-level characteristics, including the causes of action and legal theories to which the structure was linked, whether and how the structure was relevant to the legal outcomes, who won on the claim to which the structure was relevant, and whether and how the court discussed the adequacy or quality of the structure. We took numerous measures to ensure coder reliability. First, we developed and refi ned the coding scheme

290

Notes to Pages 180–182

(in particular, the forty-five organizational structures and structural characteristics) through an iterative procedure involving trial coding of opinions by five researchers over a period of about one year. Once the data were coded, we ran a series of reliability checks to ensure that there were no systematic differences among the coders. Reliability checks are discussed in more detail in Edelman et al., “When Organizations Rule.” The post-2000 sample was coded by another doctoral student who has a JD and experience in litigation and as a judicial clerk. The coding was less complicated than in the previous sample because only the variables required to extend the graphs in this chapter (and figure 3.2) were coded. I audited 11.6 percent of the cases and found the coding to be highly reliable. 38. Reference was operationalized as a dummy variable representing whether the structure was explicitly mentioned in the opinion. Relevance was measured as a dummy variable representing whether the court considered the presence of the structure to be relevant to the legal question of discrimination. Deference was operationalized as a dummy variable coded 1 if relevance existed and if one of the following conditions existed: (1) the opinion reflected no consideration of the quality or adequacy of the structure; (2) the opinion explicitly stated that the organizational structure was inadequate but that the inadequacy was legally irrelevant; or (3) the opinion stated that the structure was adequate but it also discussed testimony showing that the structure was clearly inadequate. Of the structures where relevance was present, those coded as involving judicial deference included 39 percent in which the court failed to discuss the adequacy of the structures at all (20 percent in the circuit courts and 53 percent in the district courts); 3 percent in which the court explicitly stated that the structure was inadequate but that inadequacy did not matter (3 percent in both the circuit and district courts); and 7 percent in which the court stated that the structure was adequate despite clear evidence that the structure was inadequate (5 percent in the circuit courts and 9 percent in the district courts). Since the third condition is subjective, two coders had to agree that these factors were present for the third condition to be met. We coded structures as involving deference under this last condition only if certain factors were present that indicated that, despite general language to the contrary, the court did not engage in meaningful scrutiny of the policy or the structure for bias. These factors included the court’s (1) disregard of evidence suggesting that the policy was applied unequally to employees of different protected classes, (2) disregard of evidence that ignored bias at the lower level(s) of a multilevel structure, and (3) reference to the importance of “management prerogative” while dismissing evidence of potential bias in the operation of a policy or structure. We also ran our analyses without including this third form of deference, and there were no substantial differences in the results. 39. In the original study, multivariate analyses were conducted using the structure rather than the case as the level of analysis. Details are available in

Notes to Pages 183–187

291

Edelman et al., “When Organizations Rule.” Analyses using the post-2000 sample or both samples together were based on the case level of analysis only since a smaller set of variables were coded for the follow-up project. More variables were coded in the pre-2000 study so only some of the analyses could be replicated (at the case level) in the post-2000 study. 40. Other theories included retaliation, failure to accommodate, and quid pro quo sexual harassment. These figures are based on structure-level analyses of the pre-2000 data and were originally reported in Edelman et al., “When Organizations Rule.” I could not run the same models as in the earlier study since a more limited set of variables were coded for the post-2000 data. Figure 8.3, which includes data from the pre- and post-2000 data sets, is based on analyses at the case level. 41. Ibid. 42. The McDonnell Douglas– Burdine framework requires that the plaintiff (employee, former employee, or job applicant) fi rst establish a prima facie case of discrimination by proving that (1) the plaintiff is a member of a protected class, (2) the plaintiff is qualified for the job, (3) the plaintiff was subject to an adverse employment action, and (4) the “circumstances  .  .  . give rise to an inference of unlawful discrimination.” If the employee successfully establishes a prima facie case, then the employer must produce, and provide some evidence for (but not prove), a “legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254. 43. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). 44. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 45. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 46. It is not surprising that there were some hostile work environment cases prior to Meritor, as lawyers would have advanced this theory in the lower courts before it reached the Supreme Court. As noted in chapter 3, the theory was discussed in Catharine MacKinnon’s 1979 book, Sexual Harassment of Working Women, and elements of the theory appeared in the 1980 EEOC Guidelines on Discrimination Because of Sex, 45 Fed. Reg. 74676 (Nov. 10, 1980), codified at 29 C.F.R. § 1604.11. http:// heinonline.org/ HOL/ Page?handle=hein.cfr/cfr19800 85&id=929&collection=cfr#929. 47. Edelman, Uggen, and Erlanger, “Endogeneity of Legal Regulation.” 48. 40 F. Supp. 3d 689 (W.D.N.C. 2014). Patrick R. Donahoe, the defendant in the case, was the US Postmaster General at the time the case was brought. 49. She also sued for quid pro quo harassment, but the court rejected that claim on the basis that Duncan did not meet the standard of a “supervisor” under Vance, discussed in chapter 3. 50. 40 F. Supp. 3d at 698. 51. Civil Action No. 08- 00155-KD-N, 2014 WL 4376114 (S.D. Ala. Sept. 4, 2014).

292

Notes to Pages 187–190

52. Id. at *2– 3. 53. Id. at *2. 54. Id. at *6. 55. At the circuit court level, courts are supposed to review summary judgment cases using the same standard as the district court and without deference to the lower court’s decision, a standard known as de novo review. E.g., Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206, 1207– 8 (9th Cir. 2001). 56. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 57. Legal scholars have written about the increase in the use of summary judgment in civil cases generally, and especially in civil rights cases. David R. Fine et al., “The ‘Vanishing’ Civil Jury Trial—(Report of the Middle District Civil Jury Trial Bench/Bar Task Force),” Pennsylvania Bar Association Quarterly 80, no. 24 (2009): 32– 33; Jonah B. Gelbach, “Rethinking Summary Judgment Empirics: The Life of the Parties,” University of Pennsylvania Law Review 162 (2014): 1663– 89. A study conducted by the Federal Judicial Center suggests that the rise in the use of summary judgment began in the 1970s, even before the Supreme Court’s Celotex trilogy, and that the increase may be explained by the rising number of civil rights cases as a proportion of all civil cases. Joe S. Cecil, Dean P. Miletich, and George Cort, “Trends in Summary Judgment Practice: A Preliminary Analysis” (Washington, DC: Division of Research, Federal Judicial Center, 2001), 3–4, https:// bulk.resource.org/courts.gov/fjc/summjudg.pdf. The dramatic increase in summary judgment cases in my district court sample may also be explained by the fact that Westlaw now includes nearly all potentially dispositive motions. The federal judiciary began to use electronic fi ling in 2002 for district courts and in 2005 for circuit courts, making it easier for Westlaw to include those opinions in its database. According to the Administrative Office of the U.S. Courts, as of 2015, more than 700,000 attorneys across the United States fi le documents electronically. Administrative Office of the U.S. Courts, “FAQs: Case Management/Electronic Case Files (CM/ECF),” http:// www.uscourts .gov/courtrecords/electronic -fi ling- cmecf/faqs - case -management - electronic- case-fi les- cmecf. 58. Best et al., “Multiple Disadvantages,” 1008. 59. Edelman et al., “When Organizations Rule.” Edelman and colleagues found that in the district courts, deference occurs almost twice as often in opinions with minority male plaintiffs when compared to minority female and nonminority plaintiffs. In the circuit courts, however, judges defer more often in opinions with minority female plaintiffs. The reason for the difference between the district and circuit courts is unclear, but overall, deference seems more likely when a case involves minority plaintiffs. Plaintiff race was coded from the written opinions in the pre-2000 data set only. Information on plaintiff race was gen-

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erally available in cases involving race discrimination but was frequently not mentioned in other cases. The race dummy variable, therefore, should be understood as representing an explicit mention that the plaintiff was a member of a racial or ethnic minority group (in comparison to both explicit mentions that the plaintiff was white and opinions in which there was no mention of a plaintiff’s race or ethnicity). 60. Best et al., “Multiple Disadvantages.” Plaintiffs were coded as having intersectional status if they were members of two or more underrepresented groups (e.g., black and female; Asian American and disabled). Claims were coded as intersectional if they alleged discrimination on the basis of two or more disadvantaged statuses (e.g., race and sex; race and age). A claim for race and retaliation would not be coded as an intersectional claim since it involves only one disadvantaged status. More specifically, our models suggest that deference is more likely for Title VII cases that are not also brought under 42 U.S.C. § 1981, where both race and sex discrimination is alleged. The notion of intersectionality was fi rst introduced by Kimberlé Crenshaw. Crenshaw, “Intersection of Race and Sex.” 61. Guthrie, Rachlinski, and Wistrich, “Judging by Heuristic.” 62. Ian Ayres and Joel Waldfogel, “A Market Test for Race Discrimination in Bail Setting,” Stanford Law Review 46, no. 5 (1994): 987–1047; David B. Mustard, “Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts,” Journal of Law and Economics 44, no. 1 (2001): 285– 314; R. Richard Banks, Jennifer L. Eberhardt, and Lee Ross, “Discrimination and Implicit Bias in a Racially Unequal Society,” California Law Review 94, no. 4 (2006): 1169– 90; Jeffrey J. Rachlinski et al., “Does Unconscious Racial Bias Affect Trial Judges?,” Notre Dame Law Review 84, no. 3 (2009): 1195– 246. 63. Rachlinski et al., “Unconscious Racial Bias.” 64. To measure judicial politics, we used Giles, Hettinger, and Peppers’s judicial common space score method for calculating judges’ political orientations. Michael W. Giles, Virginia A. Hettinger, and Todd Peppers, “Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,” Political Research Quarterly 54, no. 3 (2001): 623–41. These scores range from –1 (most liberal) to +1 (most conservative). The method makes use of the preference scores developed by Poole and Rosenthal, which measure senators’ and presidents’ political orientations based on their voting records. Keith T. Poole and Howard Rosenthal, Congress: A Political-Economic History of Roll Call Voting (New York: Oxford University Press, 1997); Keith T. Poole, “Recovering a Basic Space from a Set of Issue Scales,” American Journal of Political Science 42, no. 3 (1998): 954– 93. The use of common space scores to measure judicial preferences has been shown to be more accurate than relying on party affi liation of the appointing president. Giles, Hettinger, and Peppers, “Picking Federal Judges.” Michael  W. Giles generously provided us with scores for circuit court judges,

294

Notes to Pages 190–194

which we merged with our database. For district court judges, we used data on judges from the National Judicial Center and Giles’s methodology to calculate judges’ political orientation scores. The Martin- Quinn scores, which are often used to measure political ideologies of Supreme Court judges, would not have been appropriate for our data set because they rely on data from multijudge panels. Martin and Quinn, “Dynamic Ideal Point Estimation.” 65. Krieger, Best, and Edelman, “When ‘Best Practices’ Win.” 66. 438 U.S. 567 (1978). 67. Id. at 578. 68. Widmar v. Sun Chemical Corp., 772 F.3d 457, 464 (7th Cir. 2014). 69. Verniero v. Air Force Academy School District No. 20, 705 F.2d 388 (10th Cir. 1983). 70. I searched the Westlaw CTA and DCT databases, separately, for “superpersonnel department” “super personnel department” ((super /3 person!) /3 department) within cases located through a Westlaw search for (“title vii”) & ((grievance appeals complaint /3 proc!) (“open door policy” ombud!)) ((anti! /3 polic!) (harass! /3 polic!) (divers! /3 polic!)). The percentage of cases in which the term “super-personnel department” appeared was calculated by dividing the number of such cases by the total number of cases found through the Westlaw search for Title VII cases involving grievance procedures, antiharassment policies, or diversity policies. Figure 8.6 starts in 1983, when the fi rst instance of that term appears. 71. These success rates are based on our sample of cases published in Westlaw. Westlaw does not publicize its criteria for selecting cases, but there is no reason to believe that the results would be substantially different if it were feasible to sample all cases decided in the federal courts. 72. My results are consistent with Kevin Clermont and Stewart Schwab’s study of employment discrimination cases in the district courts from 1979 to 2006, which showed that plaintiff success rates in work-related cases (including employment discrimination) have remained lower than in virtually any other type of case and that they are less successful on appeal than other types of cases. Although the plaintiff success rate for cases other than employment discrimination is about 51 percent, the success rate for employment discrimination plaintiffs between 1998 and 2006 was only about 11 percent for Title VII cases and close to that for cases brought under other civil rights statutes. Clermont and Schwab, “Employment Discrimination Plaintiffs.” 73. Ibid., 128. 74. From 1988 to 2004, more than 40 percent of decisions appealed by employers were reversed by the appellate court, whereas only 11 percent of decisions appealed by employees were reversed. Ibid., 131. 75. Krieger, Best, and Edelman, “When ‘Best Practices’ Win.” 76. Figure 8.8 is based on a logistic regression of plaintiff victory using the

Notes to Pages 194–203

295

pre-2000 data set. To represent the data in a straightforward manner, it is based on opinions in which only one structure was discussed. For more detailed fi ndings, see Krieger, Best, and Edelman, “When ‘Best Practices’ Win.” 77. The effect of judicial politics, however, was not statistically significant. Given that our data came predominantly from district courts where judicial ideology has been found to matter less than in higher courts, the lack of significance is not surprising. Daniel R. Pinello, “Linking Party to Judicial Ideology in American Courts: A Meta-Analysis,” Justice System Journal 20, no. 3 (1999): 219– 54. 78. Figure 8.9 is based only on the pre-2000 sample because the judicial politics variable was not coded for the post-2000 sample. Probabilities were calculated for judges with common space scores of –.5 (liberal) and .5 (conservative). The empirically observed common space scores in the sample ranged from –.63 to .66. 79. Although the legal standard implies that the affi rmative defense should apply only when an employee unreasonably decides not to use a grievance procedure, many courts fail to evaluate the reasonableness of an employee’s decision, instead penalizing employees who choose not to use a grievance procedure. 80. Amicus curiae briefs are formally submitted in support of either the petitioner (the party appealing to the court) or the respondent (the party responding to the petitioner’s appeal). In Meritor and Ellerth, the employer was the petitioner, whereas in Faragher the employee was the petitioner. 81. Anna-Maria Marshall, “Closing the Gaps: Plaintiffs in Pivotal Sexual Harassment Cases,” Law & Social Inquiry 23, no. 4 (1998): 761– 93; MacKinnon, Sexual Harassment of Working Women; Bryan, “Sexual Harassment as Unlawful Discrimination”; Schultz, “Reconceptualizing Sexual Harassment.” 82. Brief Amicus Curiae of the Equal Employment Advisory Council Seeking Reversal, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1985) (No. 841979), 1985 WL 670161. 83. Pamela Coukos, “Hostile Environment? The Development of Sexual Harassment Law in the United States 1971–1991” (PhD diss., University of California, Berkeley, 2011). 84. Ibid. 85. 20 C.F.R. § 1604.11(c) (1985). 86. Id. 87. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae at 13, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) (No. 84-1979), 1985 WL 670162, at *26. 88. 106 S. Ct. at 2408. 89. Edelman, Uggen, and Erlanger, “Endogeneity of Legal Regulation.” 90. 118 S. Ct. at 2262.

296

Notes to Pages 204–210

91. Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Respondent at 9, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (No. 97-282), 1998 WL 32488, at *15; Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Petitioner at 10, Burlington Industries v. Ellerth (1998) (No. 97-569), 1998 WL 93294, at *19. 92. Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Respondent at 13, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (No. 97-282), 1998 WL 32488, at *24; Brief Amicus Curiae of the Equal Employment Advisory Council in Support of Petitioner at 12, Burlington Industries v. Ellerth, 524 U.S. 742 (1998) (No. 97-569), 1998 WL 93294, at *23. 93. Brief Amicus Curiae of the Society for Human Resource Management in Support of the Respondent at 4, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (No. 97-282), 1998 WL 32502, at *5. The brief is quoting Elrod v. Sears Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991), and Keyes v. Secretary of the Navy, 853 F.2d 1016, 1024 (1st Cir. 1988). The Elrod opinion was quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988). 94. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae Supporting Petitioner at 11, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (No. 97-282), 1997 WL 799997, at *21. 95. Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae Supporting Respondent at 11, Burlington Industries v. Ellerth, 524 U.S. 742 (1998) (No. 97-569), 1998 WL 151472, at *21– 23. 96. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. 97. Ellerth, 524 U.S. at 744; Faragher, 524 U.S. at 778. 98. Ellerth, 524 U.S. at 764. 99. Guidelines on Discrimination Because of Sex, 29 C.F.R. pt. 1604 (1966– 2013); Guidelines on Discrimination Because of Religion, 29 C.F.R. pt. 1605 (1967– 2013); Guidelines on Discrimination Because of National Origin, 29 C.F.R. pt. 1606 (1971– 2013); Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. pt. 1607 (1971– 2013); Affi rmative Action Appropriate under Title VII of the Civil Rights Act of 1964, 29 C.F.R. pt. 1608 (1979– 2013). 100. Beginning in 1966, EEOC guidelines required seniority policies and job postings, which most organizations already had in place, to be neutral as to gender. Beginning in 1971, EEOC guidelines specified that language policies requiring English proficiency had to be based on job necessity and that height and weight requirements could not discriminate on the basis of nationality. 101. 438 U.S. 265 (1978). 102. Affi rmative Action Appropriate under Title VII of the Civil Rights Act of 1964, 29 C.F.R. § 1608.4 (1980), http:// heinonline.org/ HOL/ Page ?handle=hein.cfr/cfr1979078&id=931&collection=cfr#962. 103. Guidelines on Discrimination Because of Sex, 29 C.F.R § 1604.11 (1980). 104. Id. § 1604.11(e).

Notes to Pages 211–213

297

105. 29 C.F.R § 1604.11(c) (1980). 106. The Supreme Court narrowed the defi nition of a supervisory employee in Vance v. Ball State University, 133 S. Ct. 2434 (2013). A notice concerning Vance was added to the online version of the EEOC Compliance Manual, http:// www.eeoc.gov/policy/docs/ harassment.html. 107. Although the 1999 EEOC Guidelines on Discrimination Because of Sex were the fi rst to explicitly refer to the EEOC Compliance Manual in the context of sexual harassment, I am not sure whether the 1999 compliance manual was the fi rst to include this language. The compliance manual is maintained in libraries as a looseleaf binder that is updated whenever changes are made. Replaced pages are apparently discarded, making it very difficult to reconstruct the history of changes. The EEOC website includes a version of the manual dated March 19, 1990, which does include language in Section E, Preventive and Remedial Action, that refers to a policy banning discrimination and a grievance procedure. Because the version of the manual supposedly issued in 1990 includes a statement that Section D was deleted in 1999, however, it may be that the guideline was in fact updated in 1999 or later. I did fi nd a document labeled EEOC Notice No. N- 915- 050, which appears to be a notice of the 1990 EEOC Compliance Manual with the same date of March 19 that includes the same language, suggesting that the compliance manual was updated in 1990. U.S. Equal Employment Opportunity Commission, EEOC Notice No. N- 915- 050 (Mar. 19, 1990), http://www.eeoc.gov/policy/docs/currentissues.html. 108. U.S. Equal Employment Opportunity Commission, EEOC Notice 915.002 (June 18, 1999) at V(C), http://www.eeoc.gov/policy/docs/ harassment.html. 109. In addition to EEOC Notice No. N- 915- 050 (Mar. 19, 1990), which appeared to pertain to the EEOC Compliance Manual (see note 107 above), I found a 1992 pamphlet published by the EEOC that advised employers to adopt an “explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented” and a “procedure for resolving sexual harassment complaints.” U.S. Equal Employment Opportunity Commission, “Questions & Answers about Sexual Harassment” (1992), 5, http:// hdl.handle.net/2027/umn.31951d019745721. The EEOC documents dated in the 1990s that recommended antiharassment policies and grievance procedures followed the evolution of these structures in organizations, which took place mostly in the 1970s and 1980s. 110. U.S. Equal Employment Opportunity Commission, EEOC Notice 915.002 (June 18, 1999), § V(C), http://www.eeoc.gov/policy/docs/ harassment.html. 111. Id. § V(C)(1). 112. Margo Schlanger and Pauline Kim, “The Equal Employment Opportunity Commission and Structural Reform of the American Workplace,” Washington University Law Review 91, no. 6 (2014): 1519– 90. 113. Ibid., 1578– 79.

298

Notes to Pages 213–223

114. Ibid., 1526. 115. 133 S. Ct. 2434 (2013). 116. I thank Linda Krieger for calling my attention to these bills. According to the bill status website of the Hawaii State Legislature, as of March 12, 2015, SB1012, amended as SD1, was referred to the Committee on Labor and Public Employment and the Judiciary Committee. Hawaii State Legislature, http:// www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=1012&y ear=2015.

Chapter Nine 1. Stainback and Tomaskovic-Devey, Documenting Desegregation. 2. Alice H. Eagly and Linda L. Carli, Through the Labyrinth: The Truth about How Women Become Leaders (Boston: Harvard Business Press, 2007); Vincent J. Roscigno, The Face of Discrimination: How Race and Gender Impact Work and Home Lives (Lanham, MD: Rowman & Littlefield, 2007). 3. Janis V. Sanchez-Hucles and Donald D. Davis, “Women and Women of Color in Leadership: Complexity, Identity, and Intersectionality,” American Psychologist 65, no. 3 (2010): 171– 81. 4. Stainback and Tomaskovic-Devey, Documenting Desegregation. 5. Kalev, Dobbin, and Kelly, “Best Practices or Best Guesses?”; Frank Dobbin, Daniel Schrage, and Alexandra Kalev, “Rage against the Iron Cage: The Varied Effects of Bureaucratic Personnel Reforms on Diversity,” American Sociological Review 80, no. 5 (2015): 1014–44. 6. Krieger, Best, and Edelman, “When ‘Best Practices’ Win.” 7. Kaiser et al., “Presumed Fair”; Dover, Major, and Kaiser, “Diversity Initiatives.” 8. Carbado and Gulati, Acting White? 9. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 10. Orly Lobel, “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought,” Minnesota Law Review 89, no. 2 (2004): 342–470; Joanne Scott and Susan Sturm, “Courts as Catalysts: Rethinking the Judicial Role in New Governance,” Columbia Journal of European Law 13, no. 3 (2006): 565– 94. 11. Gráinne De Búrca and Joanne Scott, Law and New Governance in the E.U. and the U.S. (Portland, OR: Hart Publishing, 2006). 12. A number of legal scholars are skeptical of new governance approaches. See, for example, Kimberly D. Krawiec, “Cosmetic Compliance and the Failure of Negotiated Governance,” Washington University Law Quarterly 81, no. 2

Notes to Pages 224–226

299

(2003): 487– 544; Samuel R. Bagenstos, “The Structural Turn and the Limits of Antidiscrimination Law,” California Law Review 94, no. 1 (2006): 1–47. 13. See, e.g., Skrentny, Ironies of Affirmative Action; Dobbin, Inventing Equal Opportunity; Epp, Making Rights Real. 14. Shauhin A. Talesh, “The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law,” Law & Society Review 43, no. 3 (2009): 527– 62; Shauhin A. Talesh, “How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws,” Law & Society Review 46, no. 3 (2012): 463– 96. 15. Marc Schneiberg, “Combining New Institutionalisms: Explaining Institutional Change in American Property Insurance,” Sociological Forum 20, no. 1 (2005): 93–137. 16. Mark A. Covaleski, Mark W. Dirsmith, and Jane M. Weiss, “The Social Construction, Challenge and Transformation of a Budgetary Regime: The Endogenization of Welfare Regulation by Institutional Entrepreneurs,” Accounting, Organizations and Society 38, no. 5 (2013): 333– 64. 17. Kelly, “Strange History.” 18. Zahn Bozanic, Mark W. Dirsmith, and Steven Huddart, “The Social Constitution of Regulation: The Endogenization of Insider Trading Laws,” Accounting, Organizations and Society 37, no. 7 (2012): 461– 81. 19. Magali A. Delmas and Maria J. Montes- Sancho, “An Institutional Perspective on the Diffusion of International Management System Standards,” Business Ethics Quarterly 21, no. 1 (2011): 103– 32. 20. Emer Mulligan and Lynne M. Oats, “Movers and Shakers: The Secret Lives of In-House Tax Professionals,” Accounting, Organizations and Society (forthcoming). 21. Stephen J. Mezias and Elizabeth Boyle, “Blind Trust: Market Control, Legal Environments, and the Dynamics of Competitive Intensity in the Early American Film Industry, 1893–1920,” Administrative Science Quarterly 50, no. 1 (2005): 1– 34. 22. Krawiec, “Cosmetic Compliance”; Kimberly D. Krawiec, “Organizational Misconduct: Beyond the Principal-Agent Model,” Florida State University Law Review 32, no. 2 (2005): 571– 616; Lori Holder-Webb and Jeffrey Cohen, “The Cut and Paste Society: Isomorphism in Codes of Ethics,” Journal of Business Ethics 107, no. 4 (2012): 485– 509; Russell J. Funk and Daniel Hirschman, “Derivatives and Deregulation Financial Innovation and the Demise of GlassSteagall,” Administrative Science Quarterly 59, no. 4 (2014): 669– 704. 23. Jonas Heese, Ranjani Krishnan, and Frank Moers, “Regulator Leniency and Mispricing in Beneficent Nonprofits,” Academy of Management Annual Meeting Proceedings (forthcoming). 24. Mary B. Dunn and Candace Jones, “Institutional Logics and Institutional

300

Notes to Pages 226–227

Pluralism: The Contestation of Care and Science Logics in Medical Education, 1967– 2005,” Administrative Science Quarterly 55, no. 1 (2010): 114–49. 25. Sarah Esther Lageson, Mike Vuolo, and Christopher Uggen, “Legal Ambiguity in Managerial Assessments of Criminal Records,” Law & Social Inquiry 40, no. 1 (2014): 175– 204. 26. Jodi L. Short, “Creating Peer Sexual Harassment: Mobilizing Schools to Throw the Book at Themselves,” Law and Policy 28, no. 1 (2006): 31– 59. 27. Valerie Jenness and Michael Smyth, “The Passage of the Prison Rape Elimination Act: Legal Endogeneity and the Uncertain Road from Symbolic Law to Instrumental Effects,” Stanford Law & Policy Review 22, no. 2 (2011): 489– 518. 28. Susan M. Pandy, “An Examination of the Privacy Impact Assessment as a Vehicle for Privacy Policy Implementation in U.S. Federal Agencies” (PhD diss., Virginia Polytechnic and State University, 2013). 29. David W. Lehman, Balázs Kovács, and Glenn R. Carroll, “Confl icting Social Codes and Organizations: Hygiene and Authenticity in Consumer Evaluations of Restaurants,” Management Science 60, no. 10 (2014): 2602–17. 30. Annette Nierobisz, “Wrestling with the New Economy: Judicial Rhetoric in Canadian Wrongful Dismissal Claims,” Law & Social Inquiry 35, no. 2 (2010): 403–49. 31. Andrew Frazer, “Labour Law, Institutionalist Regulation and the Employing Organisation,” International Employment Relations Review 20, no. 1 (2014): 4– 26. 32. Sharon Gilad, “Beyond Endogeneity: How Firms and Regulators Coconstruct the Meaning of Regulation,” Law & Policy 36, no. 2 (2014): 134– 64. 33. I would like to thank Kimberly Krawiec and Robert Bartlett for sharing their expertise on organizational misconduct and for reviewing parts of this section. I take responsibility for any errors that remain. 34. New York Central & Hudson River Railroad Co. v. United States, 212 U.S. 481 (1909). 35. Krawiec, “Organizational Misconduct.” 36. Smith v. Van Gorkom, 488 A.2d 858, 872– 73 (Del. 1985) (overruled on other grounds in Gantler v. Stephens, 965 A.2d 695 [Del. 2009]). 37. Gary R. Weaver, Linda Klebe Trevino, and Philip L. Cochran, “Corporate Ethics Practices in the Mid-1990s: An Empirical Study of the Fortune 1000,” Journal of Business Ethics 18, no. 3 (1999): 283– 94. 38. Ibid., 293. 39. Krawiec, “Cosmetic Compliance,” 497. 40. United States Sentencing Commission, Guidelines Manual, § 3E1.1 (November 1991), http://www.ussc.gov/sites/default/fi les/pdf/guidelines-manual/ 1991/manual-pdf/1991_Guidelines _Manual _Full.pdf.

Notes to Pages 227–230

301

41. Id. § 8C2.5(f). 42. Id. § 8C2.5(g). 43. Diana E. Murphy, “The Federal Sentencing Guidelines for Organizations: A Decade of Promoting Compliance and Ethics,” Iowa Law Review 87, no. 2 (2002): 704. 44. Krawiec, “Cosmetic Compliance.” 45. In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996). 46. Dawn-Marie Driscoll, W. Michael Hoffman, and Joseph E. Murphy, “Business Ethics and Compliance: What Management Is Doing and Why,” Business and Society Review 99, no. 1 (1998): 35– 51. 47. Murphy, “Federal Sentencing Guidelines for Organizations,” 707. 48. Memorandum Regarding Bringing Criminal Charges against Corporations, June 16, 1999, US Deputy Attorney General, http://www.justice.gov/ criminal/fraud/documents/reports/1999/charging- corps.pdf. 49. Jennifer Arlen, “The Failure of the Organizational Sentencing Guidelines,” University of Miami Law Review 66, no. 2 (2012): 321– 62. 50. Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations (New York: Belknap Press, 2014). 51. 15 U.S.C. §§ 7262, 7264, 7265; Krawiec, “Cosmetic Compliance,” 503. 52. Securities and Exchange Commission, Investment Adviser Codes of Ethics, 17 C.F.R. § 275.204A-1 (2004), https://www.sec.gov/rules/fi nal/ia-2256.htm. 53. Holder-Webb and Cohen, “Cut and Paste Society.” 54. Weaver, Trevino, and Cochran, “Corporate Ethics Practices,” 293. 55. Gary R. Weaver, Linda Klebe Trevino, and Philip L. Cochran, “Integrated and Decoupled Corporate Social Performance: Management Commitments, External Pressures, and Corporate Ethics Practices,” Academy of Management Journal 42, no. 5 (1999): 539– 52. 56. Jeffrey R. Cohen, Ganesh Krishnamoorthy, and Arnold M. Wright, “Form versus Substance: The Implications for Auditing Practice and Research of Alternative Perspectives on Corporate Governance,” Auditing: A Journal of Practice & Theory 27, no. 2 (2008): 181– 98. 57. Usha Rodriguez and Mike Stegemoller, “Placebo Ethics: A Study in Securities Disclosure Arbitrage,” Virginia Law Review 96, no. 1 (2010): 1– 68. 58. Holder-Webb and Cohen, “Cut and Paste Society.” 59. Krawiec, “Cosmetic Compliance,” 513. 60. Krawiec, “Organizational Misconduct,” 574. 61. I would like to thank Kitty Calavita, Malcolm Feeley, Rosann Greenspan, Joshua Guetzkow, Valerie Jenness, Michael Musheno, Keramet Reiter, and Ashley Rubin for sharing their expertise on prison governance and for reviewing parts of this section. I take responsibility for any errors that remain.

302

Notes to Pages 230–233

62. Feeley and Rubin, Judicial Policy Making. 63. Congress did not play a role in prison reform until 1980, when it passed the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997 et seq. 64. Feeley and Rubin, Judicial Policy Making. 65. American Correctional Association, A Manual of Correctional Standards (New York: American Correctional Association, 1959). 66. Susan P. Sturm, “Mastering Intervention in Prisons,” Yale Law Journal 88, no. 5 (1979): 1062– 91. 67. See Feeley and Rubin, Judicial Policy Making, 307–11. 68. Malcolm M. Feeley and Van Swearingen, “The Prison Conditions Cases and the Bureaucratization of American Corrections: Influences, Impacts and Implications,” Pace Law Review 24, no. 2 (2004): 447. 69. Ibid. 70. Feeley and Rubin, Judicial Policy Making, 382. 71. Heather Schoenfeld, “Mass Incarceration and the Paradox of Prison Conditions Litigation,” Law & Society Review 44, no. 3–4 (2010): 731– 68. 72. The case originated as 397 F. Supp. 20 (M.D. Fla. 1975). On appeal, the case was decided by the Fifth Circuit Court of Appeals in 1976 (539 F.2d 547), and then by the US Supreme Court in 1977 (430 U.S. 325). 73. Schoenfeld, “Mass Incarceration,” 752. 74. Ibid. 75. Joshua Guetzkow and Eric W. Schoon, “If You Build It, They Will Fill It: The Consequences of Prison Overcrowding Litigation,” Law & Society Review 49, no. 2 (2015): 401– 32. 76. Jeff Bleich, “The Politics of Prison Crowding,” California Law Review 77, no. 5 (1989): 1125– 80; Mona Pauline Lynch, Sunbelt Justice: Arizona and the Transformation of American Punishment (Stanford, CA: Stanford Law Books, 2009); Schoenfeld, “Mass Incarceration.” 77. Keramet Ann Reiter, “The Most Restrictive Alternative: A Litigation History of Solitary Confi nement in U.S. Prisons, 1960– 2006,” in Studies in Law, Politics, and Society, ed. Austin Sarat (Bingley, UK: Emerald Group, 2012), 71–124. 78. Ibid., 105. 79. Ibid., 111. 80. Ibid.; Keramet Reiter, “Supermax Administration and the Eighth Amendment: Deference, Discretion, and Double Bunking, 1986– 2010,” UC Irvine Law Review 5, no. 1 (2015): 89–151. 81. Swearingen, “Imprisoning Rights.” 82. Rebecca L. Bordt and Michael C. Musheno, “Bureaucratic Co- optation of Informal Dispute Processing: Social Control as an Effect of Inmate Grievance Policy,” Journal of Research in Crime and Delinquency 25, no. 1 (1988): 7– 26; Swearingen, “Imprisoning Rights.”

Notes to Pages 233–236

303

83. Swearingen, “Imprisoning Rights,” 1360. 84. 418 U.S. 539 (1974). 85. Barbara Belbot, “Report on the Prison Litigation Reform Act: What Have the Courts Decided So Far?,” Prison Journal 84, no. 3 (2004): 293. 86. Samuel Jan Brakel, “Ruling on Prisoners’ Grievances,” American Bar Foundation Research Journal 1983, no. 2: 393–426. 87. Belbot, “Report on the Prison Litigation Reform Act,” 291. 88. Prison Litigation Reform Act, Pub. L. No. 104-134 (1996) (codified at 42 U.S.C. §§ 1997e et seq.). 89. Swearingen, “Imprisoning Rights.” 90. Margo Schlanger and Giovanna Shay, “Preserving the Rule of Law in America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act,” Journal of Constitutional Law 11, no. 1 (2009): 139– 54; Malcolm M. Feeley and Van Swearingen, “Devolving Standards: Why California Prisons Have Failed in Their Response to Prisoner Litigation,” in The Politics of Legalism, ed. John Barnes and Thomas Burke (London: Routledge, forthcoming). 91. Margo Schlanger, “Inmate Litigation: Results of a National Survey,” LJN [Large Jail Network] Exchange 2003: 1–12, http://www.law.umich.edu/ facultyhome/ margoschlanger/ Documents/ Publications/ Inmate _Litigation _Results _National _Survey.pdf; Feeley and Swearingen, “Devolving Standards.” 92. Kitty Calavita and Valerie Jenness, Appealing to Justice: Prisoner Grievances, Rights, and Carceral Logic (Oakland: University of California Press, 2015). 93. Feeley and Swearingen, “Prison Conditions Cases”; Swearingen, “Imprisoning Rights”; Calavita and Jenness, Appealing to Justice. In an earlier study of grievance handling in an unnamed state prison system, Rebecca Bordt and Michael Musheno also concluded that prison grievance handling provided little substantive justice. Bordt and Musheno, “Bureaucratic Co- optation.” 94. Calavita and Jenness, Appealing to Justice, 49– 79. 95. Ibid., 118–19. 96. Ibid., 44–45. 97. Feeley and Swearingen, “Prison Conditions Cases,” 472. 98. Schlanger and Shay, “America’s Jails and Prisons.” 99. Calavita and Jenness frame this tension as between rights and carceral control. Calavita and Jenness, Appealing to Justice, 17–18. 100. 468 U.S. 517, 517 (1984). 101. 482 U.S. 78, 89 (1987). 102. Stigler, “Theory of Economic Regulation”; James Q. Wilson, The Politics of Regulation (New York: Basic Books, 1980); Sheldon Kamieniecki, Corporate America and Environmental Policy: How Often Does Business Get Its Way? (Stanford, CA: Stanford University Press, 2006).

304

Notes to Pages 236–238

103. See, e.g., Kaiser et al., “Presumed Fair”; Dover, Major, and Kaiser, “Diversity Initiatives.” 104. Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench”; Rachlinski, “Processing Pleadings.” 105. Jody Freeman, “The Private Role in the Public Governance,” New York University Law Review 75, no. 3 (2000): 543– 675; Lobel, “Renew Deal”; Scott and Sturm, “Courts as Catalysts.” 106. Ehrlich, Fundamental Principles; Friedman, The Legal System. 107. Funk and Hirschman, “Derivatives and Deregulation.” 108. For a discussion of the nexus of law, organizations, and social movements, see Edelman, Leachman, and McAdam, “On Law, Organizations, and Social Movements.” 109. Feeley and Rubin, Judicial Policy Making.

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Index Note: Page numbers in italics indicate figures and tables. Abraham, Steven, 83 ACA (American Correctional Association), 230– 31 academic branch of legal profession, 79– 80 across the board rule, 68– 69 Adair v. United States, 83 administrative deference to symbolic structures, 208, 209, 210–13 adverse impact, 126 affi rmative action: defi nition of, 45; government contractors and, 46–49; plans for, effectiveness of, 137– 38; recruitment programs, 137; rhetoric about, 139, 139–40 affi rmative defense. See Faragher-Ellerth affi rmative defense African Americans in management, 7 Age Discrimination in Employment Act of 1967, 5, 42, 255n90, 269n17 Albemarle Paper Co. v. Moody, 55 Albiston, Catherine, 71, 178 Alexander v. Gardner- Denver Co., 64 American Correctional Association (ACA), 230– 31 American Express Co. v. Italian Colors Restaurant, 64 Americans with Disabilities Act of 1990, 5, 43, 269n17 amicus briefs: in Faragher and Ellerth, 198, 205– 6; in Meritor, 198, 199– 201; overview of, 295n80

“anchoring effect” of symbolic structures, 171 Anderson v. Liberty Lobby, Inc., 168, 264nn167 antiharassment policy: EEOC Compliance Manual on, 212–13; FaragherEllerth affi rmative defense and, 176, 184– 88. See also Burlington Industries, Inc. v. Ellerth; Faragher v. City of Boca Raton arbitration. See mandatory arbitration clauses Ashcroft v. Iqbal, 66 attention to law, symbols of, 14, 31– 32 AT&T Mobility v. Concepcion, 64, 261n140 Automobile Workers v. Johnson Controls, Inc., 254n77 Baron, James, 137 Barrentine v. Arkansas- Best Freight System, Inc., 260n136 Bell Atlantic Corp. v. Twombly, 65– 66 Bennett v. Nucor Corp., 266n188 Berrey, Ellen, 146, 149 Best, Rachel, 194, 219 “best practices,” 15, 79, 81– 82, 150, 227 Bielby, William, 4 Bisom-Rapp, Susan, 162, 163, 164 BLR. See Business and Legal Resources Blumrosen, Alfred, 44 bona fide occupational qualification (BFOQ), 254n77

338 Boynton v. Virginia, 102 Brown v. Nucor Corp., 266– 67n188 “bulletproofi ng workplace,” 163 bureaucracy, defi nition of, 21– 22 Bureau of Prisons, US, 231 Burger, Warren, 233 Burlington Industries, Inc. v. Ellerth: affi rmative defense and, 61– 62, 175– 76, 184– 88, 197; amicus briefs fi led in, 198, 205– 6; overview of, 203– 6; Supreme Court ruling in, 206– 8; symbolic structures and, 72, 120, 166 Business and Legal Resources (BLR): documents of, 89– 90, 95– 96, 96; as management consultant, 80– 81; webinars of, 90, 93– 95, 126. See also HR Daily Advisor business judgments, judicial reluctance to review, 191– 92 business justification for diversity, 142–45 business necessity standard, 53, 277n5 Calavita, Kitty, 234 California Department of Corrections and Rehabilitation (CDCR) grievance system, 234– 35 capture theory, 236 Carbado, Devon, 10 Carl, Willard, 174– 75 Carter, Jimmy, 251n33 case outcome and judicial deference to symbolic structures, 193– 96 Celotex Corp. v. Catrett, 67 Celotex trilogy, 66– 68, 189 Circuit City Stores, Inc. v. Adams, 260n137 circumvention of liability, 34– 35, 38 Civil Litigation Research Project, 158– 59 civil rights: capacity of symbolic structures to protect, as “rationalized myth,” 155; government strategy to achieve, 110– 11; as ideals, 213–14; laws related to discrimination, 249n8; managerial resistance to, 103– 6; shift from language of, to language of diversity, 140, 145–46, 149; social movement pressure for, 102– 3; structural compliance and, 106– 7, 122– 23; symbolic structures as achievement of, 217. See also civil rights law; symbolic civil rights society Civil Rights Act of 1871, 230 Civil Rights Act of 1964: disparate treat-

Index ment theory and, 253n68; employment at will and, 269n17; promise of, 3. See also Title VII of Civil Rights Act of 1964 Civil Rights Act of 1991, 5, 43, 57 civil rights law: backlash against affi rmative action in, 139–40; disassociation of diversity from, 143–45; disparate impact theory and, 58– 60; interpretation of meaning of, 125– 27; premise of, 125; private right of action and, 37, 49, 51, 125, 158. See also EEO law; specifi c laws Civil Rights of Institutionalized Persons Act of 1980 (CRIPA), 231, 233– 34 claims, reluctance to make, 158– 59. See also rights mobilization class actions: barriers to class action lawsuits, 68– 70; subjective decision making and, 258n109; systemic disparate treatment theory and, 54; waivers, 63, 64 coercive isomorphism, 32 collective bargaining agreements, 108 Colvin, Alexander, 63 compensatory damages, 256– 57n102 complaints: to EEOC, 6, 49– 50, 272n45; fear of retaliation and, 62– 63, 136, 159– 60, 176, 186– 87, 205 compliance: association of symbolic structures with, 153, 168– 69, 170; inadequate structures as legally sufficient, 175– 77; meaning of, as evolving in organizational fields, 122; Office of Federal Contract Compliance, 47, 48–49, 112, 222– 23; Title VII and dilemma of, 102– 8. See also symbolic compliance compliance professionals: as architects of legal environment, 82– 83; defi nition of, 14; in diffusion of symbolic structures, 118– 21; HR (human resource) professionals, 78– 79, 80, 96– 99, 113, 114, 145, 200; insurance companies, 81, 99, 135; interviews with, 17; lawyers, 79– 80; management consultants, 80– 81, 99; managerialization of law by, 124– 25, 150; networks of, 81– 82; organizational governance and, 122; recommendations for, 221– 22; role of, 30– 31, 77– 78; sophistication of, 15. See also lawyers; risk framing of legal environment

Index Congress of Racial Equality, 45 Conley v. Gibson, 65 Connecticut v. Teal, 56 consent decrees, 213 conservative interpretation of Title VII: ambiguity of language and, 43–44, 51– 52; disparate treatment theory and, 53– 54; legal endogeneity and, 71– 73; turn toward, 70– 71, 224 content analyses: of BLR documents, 89– 90; of diversity rhetoric, 140–41; of EEO opinions and EEOC guidelines, 18, 168– 69; of HR Daily Advisor, 91– 93; of HR journals, webinars, and websites, 17–18; of judicial decisions, 18; of wrongful termination articles, 83, 89, 90, 270n25 continuing legal education programs, 80 contracting away legal risk. See legal risk, contracting or managing away corporate ethics codes and legal endogeneity, 226– 29 corporations, as legal entities, 244n54 Costello v. Wainwright, 232 courts: as determining legal meaning of discrimination, 51– 52; as superpersonnel departments, 191– 92, 192; symbolic civil rights society and, 3–4. See also judges, policy implications for; judicial deference to symbolic structures; legal deference to symbolic structures; Supreme Court, US coworker harassment, 61– 62. See also hostile work environment; sexual harassment CRIPA (Civil Rights of Institutionalized Persons Act of 1980), 231, 233– 34 cultural fit and hiring, 148 decision making. See judicial decision making; subjective decision making decoupling legal rules from organizational activities, 35, 36, 136– 38, 172 Defense Industry Initiative, 227 deference to symbolic compliance: defi nition of, 168; in judicial opinions, 173– 74. See also judicial deference to symbolic structures; legal deference to symbolic structures deferred prosecution agreements, 228 de novo review, 292n55

339 Desert Palace v. Costs, 258n108 diffusion of symbolic structures: early programs and roots of symbolic compliance, 108–12; EEO offices, grievance procedures, and rules, 112–17, 114, 115, 116, 117; overview of, 31– 33, 100–101; role of compliance professionals in, 118– 21; Title VII and compliance dilemma, 102– 8 disciplinary action, 163– 64 discrimination: assumptions of judges about, 171; attrition of cases of, 158– 59; courts as determining legal meaning of, 51– 52; grievance procedure defense in cases of, 165– 66, 166; intent and, 55– 60; intersectional, 10; laws related to, 249n8; management lawyers and, 165; models of, 52; organizations as obscuring, 224; persistence of, ix; plaintiff success rates for cases of, 193, 193– 96, 195, 196; process for proving, 252n65; reframing, 128– 29; second generation, 10; sexual harassment as form of, 60– 63; social science knowledge of, 59– 60. See also gender discrimination/inequality; nondiscrimination policies; race discrimination/ inequality discrimination theories. See disparate impact theory; disparate treatment theory; sexual harassment theory dismissal rates for Title VII claims, 66 disparate impact theory: cases based on, 55– 56; demise of, as weakening potential of civil rights law, 58– 60; erosion of, 56– 58, 59; Griggs v. Duke Power Co., 50, 51, 53, 57; overview of, 52– 53 disparate treatment theory: cases based on, 165, 182, 182– 84; individual, 53– 54; intent to discriminate, 55– 60; McDonnell Douglas- Burdine framework, 53– 54, 183; systemic, 54, 59; theory, 52, 53– 54, 183 dispute pyramid, 158– 59 dispute tree, 159– 60 diversity: business justification for, 142–45; current managerial notions of, 146–49; factors predicting managerialization in context of, 145–46; as focus of symbolic structures, 122– 23, 138; meaning of, 140–42, 141; rhetoric on, 139, 139–40

340 diversity structures: perceptions of fair treatment and, 155– 57, 170– 71; rights mobilization and, 160; symbolism of, 224 diversity training programs, presence of vs. effectiveness of, 11, 164– 65 Dobbin, Frank, ix, 11, 26, 44, 137, 218 Doctor’s Associates, Inc. v. Casarotto, 261n140 Dothard v. Rawlinson, 55– 56 due process: grievance procedures and, 107, 108, 120– 21, 122, 233– 35; judicial politics and, 190; mandatory arbitration clauses and, 63; wrongful termination doctrine and, 83. See also fair treatment Dukes, Betty, 4, 69 Duncan, David, 186 Edelman, Murray, x, 5 educational remedies in IDR, 130 EEAC (Equal Employment Advisory Council), 200, 204 EEO. See equal employment opportunity EEOC. See Equal Employment Opportunity Commission EEO grievance procedures. See grievance procedures EEO law: ambiguity of, 29– 30, 42; courts as defi ning, 51– 52; enforcement of, 157– 58; equation of with good management, 125– 27; framing of legal environment for, 30– 31; judicial deference to symbolic compliance and, 40–41; legalization, managerialization, and success of, 26– 27; managerialization of, 36– 37; obstacles to rights mobilization as weakening, 70; overview of, 42–43; symbolic structures and, 32– 33, 38– 39, 100–101, 106– 7; weakening of potential of, 58– 60. See also legal endogeneity theory EEO offices: diffusion of, 112–14, 114, 116–17, 117; effectiveness of, 137; grievance procedures and, 284n27 EEO position statements, 94 EEO rules, diffusion of, 112–13, 115–17, 116, 117. See also policies Eliason, Scott, 178 Ellerth, Kimberly, 203

Index Ellerth opinion. See Burlington Industries, Inc. v. Ellerth empirical evidence, 16–18 Employee Relations Law Journal, 121 employers: advantage of, as repeat players in legal system, 71; awards of summary judgment to, 66– 68, 67, 72. See also hiring Employers Counsel Network, 81 employment-at-will, 83– 84, 134. See also wrongful termination doctrine employment practices liability insurance (EPLI), 81, 135 employment testing, 50– 51, 105 employment-to-population ratio by race and gender, 6, 7 endogenous, defi nition of, 243n45 endogenous view of law. See legal endogeneity theory Epp, Charles, 11, 26 Equal Employment Advisory Council (EEAC), 200, 204 equal employment opportunity (EEO): government contractors and, 109–11; interpretations of, 43–44; laws mandating, 5– 6; meaning of, 44–46, 51– 52; outcome-based understanding of, 50; rhetoric about, 139, 139 Equal Employment Opportunity Act of 1972, 5, 49 Equal Employment Opportunity Commission (EEOC): administrative deference to symbolic structures by, 208, 209, 210–13; amicus briefs of, 198, 200– 201, 205– 6; civil rights advocacy groups and, 50– 51; complaints to, 6, 49– 50, 272n45; Compliance Manual, 211, 212; consent decrees and, 213; creation of, 5, 43; Guidelines on Discrimination Because of Sex, 210; legal endogeneity and, 40–41; recommendations for, 222– 23; remedies obtained by, 213; right-tosue letters from, 65; role of, 158; sexual harassment guidelines of, 60– 61, 199, 200; symbolic structures in guidelines of, 208, 209, 210–11; symbols and substance at, 212–13; systemic disparate treatment and, 54; Uniform Guidelines on Employee Selection Procedures, 210; as weak by design, 49

Index Equal Pay Act of 1963, 42 equal protection cases and disparate impact theory, 56 Erlanger, Howard, 83, 125 Ewing, David, 120 Executive Order 10925, 45, 109 Executive Order 11246, 43, 46, 47, 112 Executive Order 11375, 46 Executive Order 11478, 250n32 Executive Order 12086, 251n33 Executive Order 13673, 65 exogenous, defi nition of, 243n45 exogenous view of law, 12, 28 Exxon, 147 FAA (Federal Arbitration Act), 64– 65 fair employment laws of states, 108– 9 fair treatment, 125– 27, 155– 57, 183. See also due process Family and Medical Leave Act of 1993, 5– 6, 43, 71 Faragher, Beth Ann, 203 Faragher- Ellerth affi rmative defense: EEOC on, 205– 6; increase in judicial deference and, 184– 88, 185; sexual harassment and, 61– 63, 175– 76, 197, 206– 8 Faragher v. City of Boca Raton: affi rmative defense and, 61– 62, 175– 76, 184– 88, 197; amicus briefs fi led in, 198, 205– 6; overview of, 203– 6; Supreme Court ruling in, 206– 8; symbolic structures and, 72, 120, 166 Farhang, Sean, 49 Federal Arbitration Act (FAA), 64– 65 Federal Rules of Civil Procedure, 65, 66, 68 Feeley, Malcolm, 230, 231, 235, 238 fi nancial regulation, legal endogeneity in, 226– 29 Firefighters Local Union N. 1784 v. Stotts, 255n79 Florida State Prison, 232 42 U.S.C. § 1981, 42–43 42 U.S.C. § 1983, 43 Fountain, Rosella, 174– 75 framing: of legal environment, 30– 31, 77; of wrongful termination doctrine, 89, 90. See also professional framing of legal environment; reframing; risk framing of legal environment

341 Freedom Riders, 102 Freedom Summer in Mississippi, 103 Freeman, Alan, 52 Friedman, Lawrence, ix, x Fuller, Sally Riggs, 138, 140 Funk, Russell, 237 Furnco Construction Corp. v. Waters, 191, 253n73 Galanter, Marc, 71 gender discrimination/inequality: diversity as legitimating, 149; in management, 104– 5; persistence of, 6–11, 7; symbolic structures and, 5. See also diversity; Wal- Mart Stores, Inc. v. Dukes General Building Contractors Association v. Pennsylvania, 56 General Telephone Co. v. Falcon, 68– 69 Gilmer v. Interstate/Johnson Lane Corp., 64 government contractors: affi rmative action and, 46–49; diffusion of EEO offices, EEO grievance procedures, and EEO rules among, 112–17, 114, 115, 116, 117; equal opportunity and, 109–11 Graham, Hugh Davis, 44, 45 grievance procedures: affi rmative defense and, 62– 63, 176, 184– 88; deference to presence of, 175; diffusion of, 112–13, 114–15, 115, 116–17, 117, 125; due process and, 107, 108, 120– 21, 122, 233– 35; EEOC Compliance Manual on, 212– 13; invoked in employer defense, 165– 66, 166; management lawyers and, 164; Meritor v. Vinson and, 121; in prisons, 233– 35; as protection from liability, 119– 21; rationale for creation of, 118. See also internal dispute resolution Griggs v. Duke Power Co., 50, 51, 53, 57 Grubb, Charles, 174– 75 Grubb v. W. A. Foote Memorial Hospital, Inc., 174– 75 Guetzkow, Joshua, 232 Gulati, Mitu, 10 harassment: by coworkers, 9; grievance procedures invoked in defense of, 165– 66, 166. See also antiharassment policy; hostile work environment; racial harassment; sexual harassment doctrine

342 Harvard Business Review (HBR), 85, 104– 5, 106, 120 Hawaii, deference to symbolic structures in, 214 Heideck v. Kent General Hospital, 271n33 Hill, Herbert, 109, 110 hiring: cultural fit and, 148; race- conscious, 45–46, 47; race inequality in, 105; social networks in, 9 Hirschman, Daniel, 237 Hispanics: diversity structures and, 156; in management, 7 Holder, Eric, 228 honest beliefs doctrine, 72, 171 hostile work environment: affi rmative defense and, 184– 88, 197; defi nition of, 60; judicial deference in, 182– 83; opinions involving, 185; routes to liability, 61– 62; Supreme Court recognition of, 202. See also Burlington Industries, Inc. v. Ellerth; Faragher v. City of Boca Raton; Meritor Savings Bank v. Vinson HR Daily Advisor, 17–18, 90– 93 Hudson v. Palmer, 235 human resource (HR) professionals: educational forums for, 80; EEAC and, 200; explanations for risk framing by, 96– 99; management consultants and, 145; role of, 78– 79; symbolic structures and, 113, 114. See also compliance professionals; risk framing of legal environment; Society for Human Resource Management Humphrey, Hubert, 46 IBM, 147–48 ideals of law, 16. See also rhetorically reframing legal ideals IDR. See internal dispute resolution implicit bias, 9–10, 163, 190, 236, 263n162 implied contract exception to employmentat-will doctrine, 84– 85, 86– 87, 87, 88, 89 individual disparate treatment theory, 53– 54 in-house counsel, 79, 98, 136. See also compliance professionals; management lawyers In re Caremark, 228 institutionalization of symbolic structures, 122– 23

Index institutional racism, 10, 58– 59 insurance companies, 81, 99, 135 intent-based jurisprudence, rise of, 55– 60. See also disparate treatment theory internal dispute resolution (IDR): avoiding litigation through, 127– 28; managerialization of law and, 34, 36; managerialization through, 133; as managerializing EEO law, 125; meaning of civil rights law and, 125– 27; reframing discrimination in, 128– 29; reframing sexual harassment in, 132– 33; reluctance to use, 160; remedies offered in, 129– 32. See also grievance procedures International Brotherhood of Teamsters v. United States, 56 intersectionality: intersectional claims, 190; intersectional discrimination, 10. See also race discrimination/inequality interviews, 16, 17, 19 intuitive decision making of judges, 170– 71, 183 isomorphism, 32 Jenness, Valerie, 234 Johnson, Lyndon, 44–45, 46 Johnson v. Georgia Highway Express, Inc., 266n178 Johnson v. McDonnell Douglas Corp., 271n33 Johnson v. Transportation Agency, 254n79 judges, policy implications for, 16, 219– 20. See also judicial decision making; judicial deference to symbolic structures judicial decision making: implicit bias in, 190; influence of lawyers on, 171– 73; as intuitive, 170– 71, 183; legal endogeneity manifest in, 173– 77, 236; overview of, 169– 71 judicial deference to symbolic structures: challenges to, 225; defi nition of, 5; Grubb v. W. A. Foote Memorial Hospital, Inc., 174– 75; Lacy v. Ameritech Mobile Communications, Inc., 176– 77; legal endogeneity and, 173– 77; Leopold v. Baccarat, Inc., 175– 76; link between case outcome and, 193– 96; overview of, 11, 214; patterns of, over time, 178– 81, 179, 180; process of, 39–40; social reform laws and, 14. See also legal deference to symbolic structures; reasons for

Index increase in judicial deference; Supreme Court, US judicial heuristics, 72, 170-171 jury verdicts risk of, 91 Justice, US Department of: amicus brief in Meritor, 200– 201; Civil Rights Division, 200– 201, 251– 52n50; corporate ethics codes and, 228; prison reform and, 231; sanctions for noncompliance and, 251n33; systemic disparate treatment and, 54 Kaiser, Cheryl, 155– 57, 160 Kalev, Alexandra, 137, 148–49, 218 Kelly, Erin, 137 Kennedy, Anthony, 207– 8 Kennedy, John F., 44–45, 102, 109, 111 Kerner Commission and Report, 46 Kim, Pauline, 213 King, Martin Luther, Jr., 3, 46, 102 Krawiec, Kimberly, 229 Krieger, Linda, 168, 178, 194, 219 Labor, US Department of: apprenticeship programs and, 111; Office of Federal Contract Compliance, 47, 48–49, 112, 222– 23 Lacy, Hearold, 177 Lacy v. Ameritech Mobile Communications, Inc., 176– 77 Lande, John, 125 Larson, Magali, 97 Latinos: diversity structures and, 156; in management, 7 law: exogenous view of, 12, 28; flow of ideas from society to, 12–13; ideals of, 16; interconnectedness of organizations and, 21– 27; meaning of, 15–16; rule of law, 23; as social institution, 21; sociology of, 236; symbols of attention to, 14, 31– 32; working through symbolic compliance, 216–18. See also legal endogeneity theory; managerialization of law; specific laws law and society movement, x lawyers: as compliance professionals, 79– 80; in-house counsel, 79, 98, 136; in judicial decision making, 171– 73; in mobilization of symbolic structures, 161– 66, 166. See also management lawyers; plaintiffs’ lawyers

343 legal ambiguity of social reform laws: EEO law, 29– 30, 42; ideals and, 16; overview of, 14, 29– 30; Title VII, 43– 52 legal consciousness: defi nition of, 154; equation of civil rights with structural compliance and, 123; managerialization of, 27, 37– 38, 153, 154– 57; managerialized, and rights mobilization, 157– 61; rights mobilization compared to, 154– 55 legal deference to symbolic structures: in judicial decision making, 169– 70; legal endogeneity theory and, 39–41; locations of, 28– 29; managerialized law as influence on judges, 170– 72; overview of, 168– 69. See also judicial deference to symbolic structures legal endogeneity theory: affi rmative defense and, 62; ambiguous law stage, 29– 30; case outcome and, 195– 96; conservative interpretation of Title VII and, 71– 73; diffusion of symbolic forms of compliance stage, 31– 33; further research on, 235– 38; ideals, ambiguity, and, 16; ideals, tools, and, 213–15; judicial deference to symbolic structures and, 173– 77; legal consciousness and, 154; legal deference to symbolic compliance stage, 39–41; managerialization of law stage, 33– 37; mobilization of symbolic structures stage, 37– 39; in organizational misconduct, 226– 29; in other policy areas, 225– 26; overview of, ix–x, 12–13, 22, 41; policy implications of, 218– 25; in prison governance, 230– 35; professional framing of legal environment stage, 30– 31; risk framing of legal environment and, 82– 83; social reform laws and, 13–16; stages overview, 27– 29, 28; success of EEO law and, 28; symbolic civil rights and, 216–18 legal environment: compliance professionals as architects of, 82– 83; framing of, 30– 31, 77. See also professional framing of legal environment legal fields, 22– 27, 166– 67 legal ideals, defi nition of, 16. See also rhetorically reframing legal ideals legalization: of organizations, 23– 25, 24, 26– 27; of workplace, 159

344 legal logic, 23 legal orders, dissemination of information about, 77 legal risk, contracting or managing away: employment-at-will clauses, 134; employment practices liability insurance, 135; in-house counsel, 136; mandatory arbitration clauses, 133– 34; overview of, 34– 35, 36, 133 legal structures, symbolic, 101– 2 legitimacy: of organizations, 24– 25; of public legal order, 32; of symbolic structures, 35, 40, 41 legitimate business purpose standard, 56 Leopold, Andree, 176 Leopold v. Baccarat, Inc., 175– 76 liability: circumvention of, 34– 35, 38; grievance procedures as protection from, 119– 21; for hostile work environment, 61– 62; personal, for supervisors, 91; vicarious, for sexual harassment, 11, 205, 206 Lockheed Aircraft, 109, 110–11 loss prevention strategies of EPLI, 135 MacKinnon, Catharine, 60, 61, 199 Major, Brenda, 155– 57, 160 management: resistance of, to civil rights, 103– 6; women and minorities in, 6– 7, 8 management consultants, 80– 81, 99 management lawyers: EEAC and, 200; recommendations for, 221– 22; symbolic structures and, 163– 66, 166, 171– 72. See also compliance professionals; inhouse counsel managerialization: of legal consciousness, 27, 37– 38, 153, 154– 57; of legal fields, 166– 67 managerialization of law: contracting or managing away legal risk, 34– 35, 133– 36; decoupling legal rules from organizational activities, 35, 136– 38; EEO law and, 26– 27; implications of, for symbolic structures, 149– 50; influence of, on judges, 170– 72; internal dispute resolution and, 34, 125– 33; in legal endogeneity theory, 33– 34; overview of, 23– 24, 24, 25– 26, 124– 25; processes of, 34– 37, 36; rhetorically reframing legal ideals, 35, 138–49

Index managerial logic, 23 managers and diversity structures, 156– 57 managing away legal risk. See legal risk, contracting or managing away mandatory arbitration clauses, 63– 65, 133– 34 Mara-Drita, Iona, 138 March on Washington, 103 market diversity, shift in focus from workforce diversity to, 146–49 Marshall, Anna-Maria, 132, 160– 61 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 168, 264nn167 McDonnell Douglas- Burdine framework, 53– 54, 183 McDonnell Douglas Corp. v. Green, 53– 54 McKinnish, Kimberly, 186 McKinnish v. Donahoe, 186– 87 McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 266n188 Mellema, Virginia, 178 Meredith, James, 10 3 merely symbolic structures, 32, 101– 2, 124– 25 Meritor Savings Bank v. Vinson: amicus briefs fi led in, 198, 199– 201; grievance procedures and, 120, 121, 165; judicial deference and, 184; sexual harassment as form of sex discrimination and, 61; sexual harassment theory in, 62; Supreme Court ruling in, 202– 3 methodology, 17–18 Meyer, John, ix mimetic isomorphism, 32 minorities: defi nition of, 6; in management, 6– 7, 8; performance of whiteness and, 10. See also diversity; Hispanics; race discrimination/inequality; racial harassment minorities and women, defi nition of, 6 Mittman, Brian, 137 mixed-motive cases, 257– 58n108 mixed result for employment discrimination cases, 193 mobilization of symbolic structures: legal endogeneity theory and, 37– 39; managerialization of legal consciousness, 154– 57; managerialization of legal fields, 166– 67; managerialized legal consciousness and rights mobilization,

Index 157– 61; overview of, 37– 39, 153– 54; role of lawyers, 161– 66 motions to dismiss, 65– 66, 87 NAACP, 109, 110 Nakamura, Brent, 178 NASDAQ, 228 National Academy of Human Resources, 79 National Employment Lawyers Association, 162 National Labor Relations Act, 269n17 negligence standard, 211, 259n126 neoinstitutional organizational scholarship, 22 new governance approach to regulating organizations, 223, 236 Newman, Andrew, 137 New York City Transit Authority v. Beazer, 56 New York Stock Exchange, 228 Nixon, Richard, 46 nondiscrimination policies: nondiscrimination inferred from presence of, 174– 75, 219– 20; presence of vs. effectiveness of, 3– 5, 11 nonmoving party, drawing inferences against, 220, 221, 225 normative isomorphism, 32 Northrup, Herbert, 106 Norton, Eleanor Holmes, 200 notice pleading standard, 65 Obama, Barack, 65 Office of Federal Contract Compliance (OFCC, Labor Department), 47, 48–49, 112, 222– 23 organizational culture, evidence regarding, 163 organizational fields, 22– 27, 122 organizational governance, ix–x, 108, 122. See also legal endogeneity theory organizational misconduct, legal endogeneity in, 226– 29 organizational practices. See practices Organizational Sentencing Guidelines, 227 organizational structures. See symbolic structures organizations: informal practices of, 14–15; interconnectedness of law and, 21– 27;

345 legalization of, 23– 25, 24, 26– 27; meaning of law and, 15–16. See also managerialization of law overcrowding of prisons, 232 Payne v. Western & Atlantic Railroad, 269n18 PCEEO (President’s Committee on Equal Employment Opportunity), 45, 109–11 Pedriana, Nicholas, 44, 47, 49– 51 Perry v. Thomas, 260– 61n140 Personnel (journal), 85, 119– 20, 126 Personnel Administrator (journal), 85 Personnel Administrator of Massachusetts v. Feeney, 56 personnel decisions, judicial reluctance to review, 191– 92, 192 Personnel Journal, 86, 118, 121 personnel structures, diffusion of, 117 Petterson, Stephen, 137 PFP (Plans for Progress) Program, as model for symbolic compliance, 109–12 Philadelphia Plan (OFCC), 47 “pierce the corporate veil,” 244n54 plaintiffs’ lawyers: recommendations for, 220– 21; symbolic structures and, 15, 162– 63, 172, 225 plaintiff success rates for employment discrimination cases, 193, 193– 96, 195, 196 Plans for Progress (PFP) Program, as model for symbolic compliance, 109–12 plausibility standard, 65– 66 policies: affi rmative defense and, 61– 63; decoupling from organizational practices, 35, 36, 136– 38, 172; legal endogeneity theory and, 12, 218– 25; management lawyers and, 164; nondiscrimination, presence of vs. effectiveness of, 3– 5, 11; segregation and, 9; as structures, 101; templates for, or prewritten, 93. See also symbolic structures policymakers, recommendations for, 222– 23 political views: judicial decision making and, 169, 190; judicial deference and, 194– 95, 196 practices: “best,” 15, 79, 81– 82, 150, 227; decoupling legal rules from, 35, 36, 136– 38; informal, 14–15; as structures, 101

346 pragmatic remedies in IDR, 130 President’s Committee on Equal Employment Opportunity (PCEEO), 45, 109–11 Preston v. Ferrer, 261n140 prison- conditions litigation, 232 prison governance, legal endogeneity in, 230– 35 Prison Litigation Reform Act of 1996, 234 private right of action and civil rights law, 37, 49, 51, 125, 158 procedural justice, 155– 56, 157 professional framing of legal environment: overview of, 30– 31, 77; risk framing, 91– 99, 96; wrongful termination doctrine, 83– 87, 87, 88, 89 progressive interpretation of Title VII, 44– 46, 50– 51, 53 public legal order: legitimacy of, 107, 122; organizational structures that mimic, 32, 33 Pugh v. See’s Candies, Inc., 270n23 punitive damages, 257n102 punitive remedies in IDR, 131 Quarles v. Philip Morris, 50 quid pro quo harassment, 60, 201 Quinn, Beth, 161 race- conscious hiring, 45–46, 47 race discrimination/inequality: diversity as legitimating, 149; in hiring, 105; in management, 104; persistence of, 6–11, 7; symbolic structures and, 5. See also diversity; intersectionality racial harassment: dismissals of cases of, 66; management lawyers and, 165; Supreme Court and, 73, 214; Williams v. Austal, 187. See also Faragher-Ellerth affi rmative defense; hostile work environment RAND Institute for Civil Justice, 86 rational governance, symbols of, 14 Reagan administration, 112–13, 140, 200– 201, 251– 52n50 reasons for increase in judicial deference: affi rmative defense, 184– 88, 185; overview of, 181– 82; plaintiff race and intersectionality, 190; politics, 190; reluctance to review personnel decisions,

Index 191– 92, 192; rise of disparate treatment, 182, 182– 84; summary judgment actions, 188– 89, 189 recruitment from universities, 148 Reeves v. Sanderson Plumbing Products, Inc., 253n73 reference to symbolic structures, 40, 173, 181 reform: legal endogeneity and, 237, 238; possible directions for, 218–19; of prisons, 230– 31; reasons for skepticism and hope, 223– 25; recommendations for, 219– 23 reframing: discrimination, 128– 29; sexual harassment, 132– 33, 198– 99. See also rhetorically reframing legal ideals Regents of the University of California v. Bakke, 210 regulatory capture, 13, 236 Rehabilitation Act of 1973, 42 Reiter, Keramet, 233 relevance of symbolic structures, 40, 173, 180, 180– 81 remedies: educational, for sexual harassment, 277– 78n14; in IDR, 129– 32; obtained by EEOC, 213; punitive damages, 257n102 repeat players, 71, 163 Resnik, Judith, 63 respondeat superior doctrine, 226– 27, 228, 229 retaliation, fear of, 62– 63, 136, 159– 60, 176, 186– 87, 205 reverse discrimination, 57 Reynolds, William Bradford, 112–13, 200– 201 rhetorically reframing legal ideals: managerialization of law and, 35, 36, 145– 46; meaning of diversity, 140–42, 141, 146–49; overview of, 138; rationales for diversity, 142–45; rights mobilization and, 160– 61; rise and progression of diversity rhetoric, 139, 139–40 Ricci v. DeStefano, 57 rights mobilization: legal consciousness compared to, 154– 55; managerialized legal consciousness and, 157– 61; obstacles to, 63– 70, 159– 60; social reform laws and, 37– 39 risk, legal, contracting or managing away.

Index See legal risk, contracting or managing away risk framing of legal environment: benefits of, 98– 99; BLR website text analysis, 95– 96, 96; HR Daily Advisor content analysis, 91– 93; legal endogeneity and, 30– 31, 82– 83; market explanation for, 98; overview of, 77, 82, 89– 91; power explanation for, 97– 98; professional explanation for, 96– 97; in webinars, 93– 95 Ritchie v. Michigan Consolidated Gas, 271– 72n36 Rivera, Lauren, 148 Rubin, Edward, 230, 231, 238 rule of law, 23 same actor inference, 72, 171 Sarbanes- Oxley Act of 2002 (SOX), 228, 229 Scalia, Antonin, 4 Schlanger, Margo, 213 Schoenfeld, Heather, 232 Schoon, Eric, 232 Scott, Dick, ix second generation discrimination, 10 Securities and Exchange Commission (SEC), 228, 229 segregation in labor market and within organizations, 9 selection bias, 265n174 self-incrimination, risk of, 92 Selmi, Michael, 57 Selznick, Philip, Law, Society, and Industrial Justice, ix, x, 22 seniority systems, 50, 56 Sentencing Commission, US, 227, 229 sex discrimination/inequality. See gender discrimination/inequality sexual harassment: barriers to rights mobilization and, 159, 160– 61; educational remedies for, 277– 78n14; FaragherEllerth affi rmative defense to, 61– 63, 175– 76, 197, 206– 8; management lawyers and, 165; quid pro quo, 60, 201; reframing, 132– 33, 198– 99; termination for, 131. See also hostile work environment; sexual harassment cases; sexual harassment doctrine sexual harassment cases: Leopold v. Bac-

347 carat, Inc., 175– 76; McKinnish v. Donahoe, 186– 87; role of symbolic structures in, 198– 200. See also Burlington Industries, Inc. v. Ellerth; Faragher v. City of Boca Raton; Meritor Savings Bank v. Vinson sexual harassment theory, 52, 60– 63, 73 SHRM (Society for Human Resource Management), 62, 78– 79, 91, 99, 204 Silverman, David, 203 Skrentny, John, 11, 26, 44 Slowik, Theodore, 203 Smith v. City of Jackson, 255n90 Smith v. Texaco, Inc., 254n75 social fields, 22 social institution, law as, 21 social movement pressure for civil rights, 102– 3 social networks for hiring employees, 9 social reform laws: legal endogeneity and, 13–16; rights mobilization and, 37– 39. See also civil rights law; EEO law; legal ambiguity of social reform laws Society for Human Resource Management (SHRM), 62, 78– 79, 91, 99, 204 sociology of law, 236 solitary confi nement litigation, 232– 33 Southland Corp. v. Keating, 260n140 Sovern, Michael, 44 SOX (Sarbanes- Oxley Act of 2002), 228, 229 stages of legal endogeneity: ambiguous law, 29– 30; diffusion of symbolic forms of compliance, 31– 33; legal deference to symbolic compliance, 39–41; managerialization of law, 33– 37; mobilization of symbolic structures, 37– 39; overview of, 27– 29, 28; professional framing of legal environment, 30– 31 Stainback, Kevin, 9 states, fair employment laws of, 108– 9 statistical disparities, inference of intent from, 59 status-justifying beliefs, 156 stereotypes, 10, 165 St. Mary’s Honor Center v. Hicks, 253n73 Stolt- Nielsen S.A. v. Animal Feeds International Corp., 261n141 stray remarks doctrine, 72, 171

348 structural compliance. See symbolic compliance structures, defi nition of, 101. See also symbolic structures Stryker, Robin, 44, 47, 49– 51 Sturm, Susan, 10 subjective decision making, 9, 59, 69, 136 summary judgments: awards of, to employers, 66– 68, 67, 72; judicial deference in, 188– 89, 189; nonmoving party in, 225; standard for, 177, 188 supermax prisons, 232– 33 super-personnel departments, courts as, 191– 92, 192 supervisors, risk of personal liability for, 91 Supreme Court, US: deference to symbolic structures in, 197; hostile work environment and, 202; influence of, 178; on process for proving discrimination, 252n65. See also disparate impact theory; disparate treatment; specifi c cases survey data, 17 Swearingen, Van, 235 Swidler, Ann, ix symbolic, defi nition of, 101 symbolic and substantive structures, 32, 101 symbolic civil rights society: courts and, 3– 4; US as, 3, 15–16, 216–18, 238 symbolic compliance: civil rights and, 106– 7, 122– 23; deference to, 39–41, 168, 173– 74; diffusion of forms of, 31– 33; early programs and roots of, 108–12; working law through, 216–18. See also symbolic structures symbolic legal structures, 101– 2 symbolic structures: administrative deference to, 208, 209, 210–13; “anchoring effect” of, 171; continuum of, 32; deference to, 11, 28– 29, 39–41; defi nition of, 5, 24– 25, 101; diversity as focus of, 122– 23, 138; as double- edged, 14–15; EEO law and, 32– 33, 38– 39, 100–101, 106– 7; effectiveness of, 137– 38; implications of managerialization for, 149– 50; institutionalization of, 122– 23; judicial reasoning and, 170– 71; legitimacy of, 35, 40, 41, 107– 8; reference to, 40, 173, 181; relevance of, 40, 173, 180, 180– 81; sexual harassment and, 73; types of, 32, 101– 2, 124– 25. See also diffusion of

Index symbolic structures; judicial deference to symbolic structures; mobilization of symbolic structures; policies systemic disparate treatment theory, 54, 59 Taylor, Sidney, 199 Teamsters v. United States, 258n110 technobureaucratic professionals, 97 Terry, Bill, 203 Texas Department of Community Affairs v. Burdine, 53 therapeutic remedies in IDR, 130– 31 Thomas, Clarence, 113, 200– 201 Title VII of Civil Rights Act of 1964: ambiguity in, 43– 52; compliance dilemma and, 102– 8; dismissal rates for claims, 66; enforcement of, 49; judicial doctrine in interpretation of, 51– 52; overview of, 5, 11, 42; progressive interpretation of, 44–46, 50– 51, 53; section 706(g), 45; sexual harassment and, 60– 61. See also conservative interpretation of Title VII tokenism, 9 Tomaskovic-Devey, Donald, 9 Toussaint v. Blue Cross & Blue Shield of Michigan, 269– 70n22 Turner v. Safl ey, 235 “Twiqbal,” 65– 66 unconscionability doctrine, 261n143 unions and resistance to civil rights, 105– 6 United Steelworkers v. Weber, 254n79 University of Texas Southwestern Medical Center v. Nassar, 258n108 upward flow of ideas from society to law, 12–13 Vance v. Ball State University, 62, 214, 297n106 vicarious liability for sexual harassment, 205, 206, 211 Vinson, Mechelle, 61, 199 wage gaps for minorities and women, 7 Walmart, 147, 239n3. See also Wal- Mart Stores, Inc. v. Dukes Wal- Mart Stores, Inc. v. Dukes, 4– 5, 15, 69– 70, 163, 258n109 Wards Cove Packing Co. v. Atonio, 56– 57

Index Washington v. Davis, 56 Watson v. Fort Worth Bank, 56 Watts, Jonathan, 176 Weber, Max, 21– 22 webinars by BLR, 90, 93– 95 white males and diversity structures, 156 whiteness, performance of, 10 Williams, Frederick, 187 Williams v. Austal, 187 Wirtz, Willard, 111 Wolff v. McDonnell, 233 women in management, 7, 8 Workforce 2000, 140 working law through symbolic compliance, 216–18

349 work organizations, defi nition of, 12 workplace: “bulletproofi ng,” 163; legalization of, 159; persistence of inequality in, ix. See also gender discrimination/inequality; race discrimination/ inequality wrongful termination doctrine: employment-at-will clauses and, 134; overview of, 83– 84; professional framing of threat of, 84– 86, 91– 92; statistics on, 86– 87, 87, 88, 89, 90; variation in framing of, 89, 90 Zatz, Noah, 57

The Chicago Series in Law and Society Edited by John M. Conley and Lynn Mather Series titles, continued from front matter: Distorting the Law: Politics, Media, and the Litigation Crisis by William Haltom

The Common Place of Law: Stories from Everyday Life by Patricia Ewick and

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Susan S. Silbey

Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal by John

The Struggle for Water: Politics, Rationality, and Identity in the American Southwest by Wendy Nelson

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Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities by David M. Engel and Frank W. Munger

The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States by Yves Dezalay and Bryant G. Garth

Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II by Eric L. Muller

Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy by

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Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order by Yves Dezalay and Bryant G. Garth Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization by Michael W. McCann

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Reproducing Rape: Domination through Talk in the Courtroom by Gregory M. Matoesian

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Getting Justice and Getting Even: Legal Consciousness among Working- Class Americans by Sally Engle Merry

Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court by Susan F.

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John M. Conley and William M. O’Barr