Discrimination-reducing measures at the relational level

Hastings Law Journal

Volumn 59, Issue 6, 2008, Pages 1435-1461

  Green, Tristin K ^a   Kalev, Alexandra ^b  

^a Seton Hall Law School ^*

^b UNIVERSITY OF ARIZONA   (United States)

Author keywords

[No Author keywords available]

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EID: 54149104618     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (182)

1. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1164 (1995).
2. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 459 (2001).
3. Barbara M. Reskin & Debra B. McBrier, Why Not Ascription? Organizations' Employment of Male and Female Managers, 65 AM. SOC. REV. 210, 214 (2000);
4. Philip E. Tetlock, Accountability: A Social Check on the Fundamental Attribution Error, 48 SOC. PSYCHOL. Q. 227, 227 (1985);
5. see also William T. Bielby, Minimizing Workplace Gender and Racial Bias, 29 CONTEMP. SOC. 120, 121 (2000) (discussing the research for changing workplace practices); infra note 13 and accompanying text. Notably, other researchers find that ascription can persist even with formalization.
6. See Matt L. Huffman & Steven C. Velasco, When More is Less: Sex Composition, Organizations, and Earnings in U.S. Firms, 24 WORK & OCCUP'S 214, 234 (1997) (finding lower rewards for work done by women, even when formalized personnel systems exist);
7. see also Susan Bisom-Rapp, Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law Practice, 26 FLA. ST. U. L. REV. 959, 961-62 (1999) (arguing that a formalized system of performance evaluations can be used to bulletproof discriminatory decisions).
8. See infra Part II.
9. See infra Part II.
10. Professors Jolls and Sunstein label these System II and System I responses, respectively. Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CAL. L. REV. 969, 973-75 (2006) (exploring ways that the law currently triggers (or might trigger) measures for reducing discrimination).
11. Susan T. Fiske, Stereotyping, Prejudice, and Discrimination, in 2 HANDBOOK OF SOCIAL PSYCHOLOGY 357, 357 (Daniel T. Gilbert et al. eds., 4th ed. 1998).
12. Irene V. Blair, The Malleability of Automatic Stereotypes and Prejudice, 6 PERS'LTY & SOC. PSYCHOL. REV. 242, 243 (2002).
13. Fiske, supra note 7; Kimberly D. Krawiec, Cosmetic Compliance and the Failure of Negotiated Governance, 81 WASH. U. L.Q. 487, 513-16 (2003);
14. Thomas E. Nelson et al., Irrepressible Stereotypes, 32 J. EXPMT'L SOC. PSYCHOL. 13, 14 (1996). In their survey of the perceived success of diversity training programs, Rynes and Rosen found that men were significantly less likely than women to see diversity training as successful.
15. Sara Rynes & Benson Rosen, A Field Survey of Factors Affecting the Adoption and Perceived Success of Diversity Training, 48 PERSONNEL PSYCHOL. 247, 258 (1995). Another study found that whites responded negatively to news of a diversity program.
16. See Deborah L. Kidder et al., Backlash Toward Diversity Initiatives: Examining the Impact of Diversity Program Justification, Personal and Group Outcomes, 15 INT'L J. CONFLICT MGMT. 77, 91 (2004).
17. See MARK J. BENDICK ET AL., THE DOCUMENTATION AND EVALUATION OF ANTIDISCRIMINATION TRAINING IN THE UNITED STATES 11 (1998);
18. Alexandra Kalev et al., Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies, 71 AMER. SOC. REV. 589, 599 (2006) (39% of establishments studied).
19. See, e.g., Abdallah v. Coca-Cola Co. 133 F. Supp. 2d 1364, 1368-71 (N.D. Ga. 2001) (order approving consent decree); see also Tristin K. Green. Targeting Workplace Context: Title VII as a Tool for Institutional Reform, 72 FORDHAM L. REV. 659, 685-87 (2003) (reviewing consent decrees and basic characteristics of recent class action employment discrimination lawsuits).
20. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998) (creating an affirmative defense under which the employer can avoid liability for sexual harassment if it can prove that "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and that "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise"); see also Susan Bisom-Rapp, Fixing Watches with Sledgehammers: The Questionable Embrace of Employee Sexual Harassment Training by the Legal Profession, 24 T. JEFFERSON L. REV. 125, 129 (2002) (arguing that legal and human resources professionals shaped the legal standard through an emphasis on training).
21. BENDICK ET AL., supra note 10; see also Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 CAL. L. REV. 1063, 1090 (2006) (proposing that "those who admit, hire, select, and evaluate should volunteer to experience their bias directly" by taking a test like the Implicit Association Test (IAT)).
22. See Fiske, supra note 7, at 363.
23. See Fiske, supra note 7; Nelson et al., supra note 9, at 30; see also Barbara Reskin, Sex Segregation in the Workplace, 19 ANN. REV. SOC. 241, 265 (1993).
24. See generally EVREN ESEN, SOCIETY FOR HUMAN RESOURCE MANAGEMENT, 2005 WORKPLACE DIVERSITY PRACTICES SURVEY REPORT (2005) (describing the various processes used for diversity training and the statistical breakdown by employer).
25. See id. at 6 ; Douglas M. McCracken, Winning the Talent War for Women: Sometimes It Takes a Revolution, HARV. BUS. REV., Nov.-Dec. 2000, at 159-60 (discussing Deloitte & Touche efforts).
26. Barbara Reskin, The Proximate Causes of Employment Discrimination, 29 CONTEMP. SOC. 319, 325 (2000).
27. Tetlock, supra note 3, at 227-36.
28. See Fiske, supra note 7, at 363.
29. Kalev et al., supra note 10; see also Court Approves $ 15 Million Class Settlement of Sex Bias Lawsuit Against Freight Company, 27 EMP. DISCRIM. REP. (BNA) 401 (Oct. 4, 2006) (describing a recent consent decree requiring appointment of an equal employment opportunity director and two EEO specialists) (on file with authors).
30. The EEOC requires that employers subject to Title VII with 100 or more employees file a yearly "equal information report EEO-1" providing employment data on race/ethnicity, gender, and job category. See 29 C.F.R. §§ 1602.7-14 (2007).
31. Kalev et al., supra note 10.
32. Id.
33. Id. at 591-92.
34. Some scholars argue that decoupling occurs because, without an office or expert to monitor progress, individual managers do not perceive it as in their interest, or do not view it as high on the company's agendas, to promote equality. See generally Kalev et al., supra note 10. In this view, responsibility structures reduce discrimination by crystallizing individual incentives to control for biases in decision making. Id. It is not impossible that responsibility structures would reduce discrimination at the relational level as well by facilitating organizational egalitarian and collaborative structures. However, existing evidence, although scarce, suggests that they have not been addressing diversity in this way so far. See, e.g., Sturm, supra note 2, at 492 (reviewing Deloitte & Touche diversity measures).
35. Kang & Banaji, supra note 13, at 1109; see also Michael J. Yelnosky, The Prevention Justification for Affirmative Action, 64 OHIO ST. L.J. 1385 (2003).
36. ROSABETH MOSS KANTER, MEN AND WOMEN OF THE CORPORATION 11 (1977).
37. See id. at 211.
38. See Krieger, supra note 1, at 1193-95 (exploring the cognitive bases for tokenism); see also Barbara M. Reskin et al., The Determinants and Consequences of Workplace Sex and Race Composition, 25 ANN. REV. Soc. 335, 354-55 (1999) (discussing the effect of composition).
39. The IAT measures differences in the speed of cognitive processing to identify implicit attitudes. See generally Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: the Implicit Association Test, 74 J. PERS'LTY & SOC. PSYCHOL. 1464 (1998) (discussing use of the IAT to measure implicit attitudes).
40. See Brian S. Lowery et al., Social Influence Effects on Automatic Racial Prejudice, 81 J. PERS'LTY & SOC. PSYCHOL. 842, 844-47 (2001). See generally Jolls & Sunstein, supra note 6, at 980-82.
41. Jennifer A. Richeson & Nalini Ambady, Effects of Situational Power on Automatic Racial Prejudice, 39 J. EXPMT'L SOC. PSYCHOL. 177, 179-81 (2003).
42. Kang & Banaji, supra note 13, at 1105-06.
43. Id. at 1106.
44. For a brief review of some of the counterstereotype research, see Blair, supra note 8, at 248-49.
45. Attention to demographics as a meaningful discrimination-reducing measure requires more than just ensuring the presence of women and minorities. Some studies find, for example, that demographic diversity in work groups leads to higher levels of conflict and lower levels of satisfaction. See, e.g., Anne S. Tsui et al., Being Different: Relational Demography and Organizational Attachment, 37 ADMIN. SCI. Q. 549, 571-73 (1992);
46. Katherine Y. Williams & Charles A. O'Reilly, Demography and Diversity in Organizations, in RESEARCH IN ORGANIZATIONAL BEHAVIOR 77-140 (Barry M. Staw & L.L. Cummings eds., 1998); see also infra notes 122-24 and accompanying text (discussing moderating factors).
47. Kang & Banaji, supra note 13, at 1109 ("A debiasing agent is an individual with characteristics that run counter to the attitudes and/or the stereotypes associated with the category to which the agent belongs."). The authors provide the following examples: women construction workers, male nurses, black intellectuals, white janitors, Asian CEOs, gay boxers, and elderly marathon runners. Id. Kang and Banaji also propose breaking "ties" between candidates in favor of women and people of color on the ground that they, on average, are targets of implicit bias. Id. at 1098-1101. This form of affirmative action differs dramatically from the "debiasing agent" proposal in that, rather than reducing discrimination by decreasing bias, it seeks to reduce the effect of discriminatory bias by offsetting for "inaccurate measurement" at the moment of ultimate decision. Id. at 1100.
48. Id. at 1111-15; Yelnosky, supra note 27.
49. Jolls & Sunstein, supra note 6, at 984.
50. For an effort to refocus attention at the relational level, see Tristin K. Green, Work Culture and Discrimination, 93 CAL. L. REV. 623 (2005). Even here, however, the measures proposed tend to linger at the individual level. See id. at 679 (suggesting that, depending on the circumstances, "the employer might devise measures to diversify the work group, reallocate organizational authority, or impose formal authority structures to disestablish long-standing informal power bases" (citations omitted)); id. at 682 (describing an employer's "work culture report" to include diagnostic efforts and remedial efforts, such as "the establishment of benchmarks and other measures to increase demographic diversity within work groups, the alteration of decision-making systems to disentrench existing power structures, and the use of formal rewards to offset informal demands for conformity with white, male behavioral norms").
51. Kang & Banaji, supra note 13, at 1107-08 (discussing the bias-reducing benefits on individuals of "exposure" to countertypical exemplars); see also Jolls & Sunstein, supra note 6, at 973-90.
52. See Allen R. McConnell & Jill M. Leibold, Relations Among the Implicit Association Test, Discriminatory Behavior, and Explicit Measures of Racial Attitudes, 37 J. EXPMT'L SOC. PSYCHOL. 435, 441 (2001) (eye contact, forward body lean, arm positioning, speech errors, etc.); infra notes 59-71, and accompanying text.
53. Mark Chen & John H. Bargh, Nonconscious Behavioral Confirmation Processes: The Self-Fulfilling Consequences of Automatic Stereotype Activation, 33 J. EXPMT'L SOC. PSYCHOL. 541, 542 (1997).
54. See Russell R. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093 (2008) (reviewing research on the effect of perceptions of bias on interaction).
55. See Samuel Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. PERS'LTY & SOC. PSYCHOL. 597, 609-10 (2006) (measuring the effect of a black juror on white co-jurors). See generally Robinson, supra note 45.
56. But see Kang & Banaji, supra note 13, at 1094-95 (proposing that employers discount interviews in the selection process to insulate employment decisions from awkward interactions in interviews).
57. See generally Green, supra note 11 (describing these lawsuits). For another recent case, see Second Amended Complaint at 6, 14, Ellis v. Costco Wholesale Corp., 99 Fair Empl. Prac. Cas. (BNA) 1079 (N.D. Cal Mar. 23, 2005) (No. C-04-3341) (alleging discrimination in promotion based on a "tap on the shoulder" system and seeking "objective promotion standards" and a "transparent . . . job posting and application process") (on file with The Hastings Law Journal).
58. Green, supra note 11, at 684 (citing Butler v. Home Depot, Inc., No. C-94-4335, 1996 U.S. Dist. LEXIS 3370, at *4 (N.D. Cal. Mar. 25, 1996)).
59. Id. at 684-85.
60. Id.
61. Id. at 686 (citing Complaint at 9-10, Kosen v. Am. Express Fin. Advisors, Inc., No. 1: 02-CV0082 (D.D.C. June 16, 2002)).
62. Id. at 686.
63. Reskin, supra note 18 ("Organizations should be able to minimize race and sex bias in personnel decisions by using objective, reliable, and timely information that is directly relevant to job performance.").
64. Marta M. Elvira & Christopher D. Zatzick, Who's Displaced First? The Role of Race in Layoff Decisions, 41 INDUS. REL. 329, 353 (2002); Reskin & McBrier, supra note 3.
65. Bielby, supra note 3, at 124 (recommending objective criteria and transparency in process so that potential candidates can "make their interests and qualifications known"); Herminia Ibarra, Race, Opportunity, and Diversity of Social Circles in Managerial Networks, 38 ACAD. MGMT. J. 673, 693 (1995).
66. Bielby, supra note 3, at 122. Yet some scholars point to the persistence of ascription even when formal personnel procedures are put in place. See sources cited supra note 3.
67. See Herminia Ibarra, Homophily and Differential Returns: Sex Differences in Network Structure and Access in an Advertising Firm, 37 ADMIN. SCI. Q. 422, 441 (1992);
68. Gail McGuire, Gender, Race, Ethnicity, and Networks: The Factors Affecting the Status of Employees' Network Members, 27 WORK & OCCUP'S 501, 517 (2000). See generally Kalev et al., supra note 10, at 594 (discussing studies).
69. See Susan T. Fiske, Thinking is for Doing: Portraits of Social Cognition from Daguerreotype to Laserphoto, 63 J. PERS'LTY & SOC. PSYCHOL. 877, 877 (1992) (on perception);
70. Cecilia L. Ridgeway, Interaction and the Conservation of Gender Inequality: Considering Employment, 62 AM. SOC. REV. 218, 219 (1997);
71. see also ERVING GOFFMAN, INTERACTION RITUAL 3 (1967).
72. See generally Cecilia L. Ridgeway, Linking Social Structure and Interpersonal Behavior: A Theoretical Perspective on Cultural Schemas and Social Relations, 69 SOC. PSYCHOL. Q. 5, 6 (2006) (describing the coordination problem of interaction).
73. See Barbara F. Reskin, Including Mechanisms in Our Models of Ascriptive Inequality, 68 AM. SOC. REV. 1, 9 (2003).
74. Id. (citations omitted).
75. Id.
76. Id. at 10.
77. Notably, the negative effect of behaviors exhibited when interviewing black applicants was observed even when the interviewee was white. Id. at 10 (citing Carl O. Word et al., The Nonverbal Mediation of Self-Fulfilling Prophecies in Interracial Interaction, 10 J. EXPMT'L SOC. PSYCHOL. 109 (1974)).
78. See Chen & Bargh, supra note 44.
79. The task partner's hostility was rated by both experimental subjects and experimenters. Reskin, supra note 61, at 9-10 (citing Chen & Bargh, supra note 44).
80. Ridgeway, supra note 60, at 9.
81. Cecilia L. Ridgeway & Lynn Smith-Lovin, The Gender System and Interaction, 25 ANN. REV. SOC. 191, 191 (1999).
82. Id.
83. Reskin, supra note 18, at 323 (citing Stephanie A. Goodwin, Situational Power and Interpersonal Dominance Facilitate Bias and Inequality, 54 J. SOC. ISSUES 677 (1998)
84. and Susan T. Fiske et al., The Continuum Model: Ten Years Later, in DUAL PROCESS THEORIES IN SOCIAL PSYCHOLOGY 231 (Shelly Chaiken & Yaacov Trope eds., 1999)).
85. Ridgeway & Smith-Lovin, supra note 69.
86. Reskin, supra note 18, at 323 (citing Don Operario et al., Power Is Everywhere: Social Control and Personal Control Both Operate at Stereotype Activation, Interpretation, and Inhibition, in STEREOTYPE ACTIVATION AND INHIBITION 163, 172-73 (Robert S. Wyer ed., 1998)).
87. GORDON W. ALLPORT, THE NATURE OF PREJUDICE 281 (1954);
88. Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of Intergroup Contact Theory, 90 J. PERS'LTY & SOC. PSYCHOL. 751, 752 (2006).
89. DONALD TOMASKOVIC-DEVEY, GENDER AND RACIAL INEQUALITY AT WORK: THE SOURCES AND CONSEQUENCES OF JOB SEGREGATION 3 (1993); Reskin, supra note 15.
90. Reskin, supra note 15, at 247.
91. See id.
92. Sharon M. Collins, Black Mobility in White Corporations: Up the Corporate Ladder But out on a Limb, 44 SOC. PROBS. 55, 55-56 (1997).
93. KANTER, supra note 28.
94. Id. at 72-73.
95. Id. at 73-74.
96. Id. at 85-87.
97. Id. at 86.
98. Reskin, supra note 18 (citing Galen V. Bodenhausen et al., Stereotypes in Thought & Deed: Social & Cognitive Origins of Intergroup Discrimination, in INTERGROUP COGNITION & INTERGROUP BEHAVIOR 311, 317 (Constantine Sekides et al. eds., 1998)).
99. TOMASKOVIC-DEVEY, supra note 75.
100. See supra notes 70-76 and accompanying text.
101. Henri Tajfel, Cognitive Aspects of Prejudice, 25 J. SOC. ISSUES 79 (1969).
102. See MUZAFER SHERIF, UNIVERSITY OF OKLAHOMA INSTITUTE OF GROUP RELATIONS, INTERGROUP CONFLICT AND COOPERATION: THE ROBBERS CAVE EXPERIMENT (1961).
103. See generally SAMUEL L. GAERTNER & JOHN F. DOVIDIO, REDUCING INTERGROUP BIAS: THE COMMON INGROUP IDENTITY MODEL (2000);
104. Roderick M. Kramer, Intergroup Relations and Organizational Dilemmas: The Role of Categorization Process, 13 RES. ORG. BEHAV. 191, 215 (1991); see also Reskin, supra note 18, at 324.
105. Samuel B. Bacharach et al., Diversity and Homophily at Work: Supportive Relations Among White and African-American Peers, 48 ACAD. MGMT. J. 619, 620 (2005).
106. See ROSABETH MOSS KANTER, THE CHANGE MASTERS: CORPORATE ENTREPRENEURS AT WORK 146 (1983);
107. Shelley Brickson, The Impact of Identity Orientation on Individual and Organizational Outcomes in Demographically Diverse Settings, 25 ACAD. MGMT. REV. 82, 83 (2000).
108. See Ridgeway, supra note 60, at 9 ("All social relational encounters take place in a preexisting context of established structures and other material constraints.") (citing Edward J. Lawler et al., Structural Social Psychology and the Micro-Macro Problem, 11 SOCIO. THEORY 268 (1993));
109. see also Cecilia L. Ridgeway & Shelley J. Correll, Limiting Inequality Through Interaction: The Ends of Gender, 29 CONTEMP. SOC. 110, 113 (2000) (describing gender beliefs, the cultural rules for enacting gender, as "one of the twin pillars (along with resources) on which the gender system rests").
110. Gerhard Daday & Beverly Burris, Technocratic Teamwork: Mitigating Polarization and Cultural Marginalization in an Engineering Firm, 10 RES. SOC. WORK 241, 257 (2001).
111. Id. at 254.
112. Elin Kvande & Bente Rasmussen, Men in Male Dominated Organizations and Their Encounter with Women Intruders, 10 SCANDINAVIAN MGMT. J. 163, 172 (1994).
113. ELLA J. BELL ET AL., OUR SEPARATE WAYS: BLACK AND WHITE WOMEN AND THE STRUGGLE FOR PROFESSIONAL IDENTITY 150 (2001);
114. DAVID A. THOMAS & JOHN J. GABBARO, BREAKING THROUGH: THE MAKING OF MINORITY EXECUTIVES IN CORPORATE AMERICA 222 (1999);
115. Sheila Wellington et al., What's Holding Women Back?, HARV. BUS. REV., June 2003, at 18-19.
116. Ian Taplin, Flexible Production, Rigid Jobs: Lessons from the Clothing Industry, 22 WORK & OCCUP'S 412, 430 (1995).
117. Vicki Smith, Employee Involvement, Involved Employees: Participative Work Arrangements in a White-Collar Service Occupation, 43 SOC. PROBS. 166, 167 (1996).
118. Id. at 173.
119. See, e.g., Ridgeway & Smith-Lovin, supra note 69, at 211.
120. Marjukka Ollilainen & Joyce Rothschild, Can Self-Managing Teams be Truly Cross-Functional?: Gender Barriers to a "New" Division of Labor, 10 RES. SOC. WORK 141, 149-52 (2001).
121. Id. at 155. This suggests that the formal equality within the team thus provides grounds for legitimating women's and minorities' inclusion.
122. See generally LAUREL SMITH-DOERR, WOMEN'S WORK: GENDER EQUALITY VS. HIERARCHY IN THE LIFE SCIENCES (2004).
123. Id. at 106.
124. Id.
125. The benefit of a collectivist culture is consistent with findings of Chatman. See infra note 122 and accompanying text.
126. SMITH-DOERR, supra note 103, at 107.
127. Id.
128. Id. at 133.
129. Id.
130. Id. at 106.
131. See supra notes 59-91 and accompanying text.
132. SMITH-DOERR, supra note 103, at 107.
133. Kjersten Bunjer Whittington & Laurel Smith-Doerr, Women Inventors in Context: Disparities in Patenting Across Academia and Industry, 22 GENDER & SOC'Y 194 (2008).
134. Michelle J. Budig & Paula England, The Wage Penalty for Motherhood, 66 AM. SOC. REV. 204, 221 (2001).
135. Alexandra Kalev, Cracking the Glass Cages? Job Segregation, the Restructuring of Work and Managerial Diversity (Aug. 16, 2004) (unpublished paper presented at the annual meetings of the American Sociological Association in San Francisco, California, on file with authors).
136. Id. at 21.
137. Id. at 5, 8.
138. David A. Thomas, The Truth About Mentoring Minorities: Race Matters, HARV. BUS. REV., Apr. 2001, at 8-11 (arguing that cross-race mentoring is less effective than same-race mentoring).
139. Some ADVANCE programs, sponsored by the National Sciences Foundation, have put in place such formal collaboration programs. See Susan Sturm, The Architecture of Inclusion: Advancing Workplace Equity in Higher Education, 29 HARV. J. L. & GENDER 247, 277-87 (2006) (describing the ADVANCE programs).
140. See, e.g., ALLPORT, supra note 74; Pettigrew & Tropp, supra note 74, at 757.
141. Bacharach et al., supra note 90; Brickson, supra note 91; Jennifer A. Chatman et al., Being Different Yet Feeling Similar: The Influence of Demographic Composition and Organizational Culture on Work Processes and Outcomes, 43 ADMIN. SCI. Q. 749, 749 (1998);
142. see also Robin J. Ely & David A. Thomas, Cultural Diversity at Work: The Effects of Diversity Perspectives on Work Group Processes and Outcomes, 46 ADMIN. SCI. Q. 229 (2001).
143. Bacharach et al., supra note 90.
144. Ely & Thomas, supra note 122.
145. See supra notes 122-24 and accompanying text.
146. Joyce Rothschild, Creating a Just and Democratic Workplace: More Engagement, Less Hierarchy, 29 CONTEMP. SOC. 195, 205 (2000).
147. U.S. CONST. amend. XIV, § 1.
148. 42 U.S.C. § 2000e (2006).
149. The fact that a substantial number of firms have adopted cross-boundary work teams and training programs also suggests that, at least for some organizations, these ways of organizing work and building skills make business sense. See Arne L. Kalleberg et al., Beyond Profit? Sectoral Differences in High-Performance Work Practices, 33 WORK & OCCUP'S 271, 294 (2006) (documenting the spread of cross-boundary work teams and training programs).
150. The Supreme Court has held that Title VII prohibits discrimination against white and black people alike, see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79 (1976), and that, in the Equal Protection context, all racial classifications are reviewed under a strict scrutiny standard, see Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995), and all sex classifications are reviewed under an intermediate scrutiny standard, see United States v. Virginia, 518 U.S. 515, 534 (1986).
151. See supra note 39 and accompanying text.
152. Attention to race and sex in these "softer" workplace decisions may also generate less hostility and resistance on the part of members of the majority, and it is unlikely to generate the same stigma and self-derogation effects as more traditional uses of affirmative action. See Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 CAL. L. REV. 1251, 1259-65 (1998) (reviewing studies).
153. See, e.g., Minor v. Centocor, Inc., 457 F.3d 632, 634 (7th Cir. 2006) (noting that "hundreds if not thousands of decisions say that an 'adverse employment action' is essential to the plaintiff's prima facie case").
154. See, e.g., McCoy v. City of Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007) (holding that only "ultimate employment decisions," such as hiring and firing decisions, meet the "adverse employment action" requirement); Earle v. Aramark Corp., No. 06-10483, 2007 WL 2683821 at *5 (5th Cir. Sept. 12, 2007) (holding that "being denied administrative support, being denied access to training and leadership courses, [and] being denied mentoring and training opportunities" were not adverse actions under Title VII). Although the Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White held that an "ultimate employment decision" is not required for retaliation claims under § 704, it left open whether such a requirement (or something similar) is proper for discrimination claims under § 703(a). 548 U.S. 53, 61 (2006).
155. See, e.g., Minor, 457 F.3d at 634 (requiring a "material difference in the terms and conditions of employment" and explaining that the requirement was met in the case because the decision to require the plaintiff to visit all of her sales accounts twice a month and her major accounts more frequently, without a raise in pay, was "functionally the same as a 30% reduction in . . . hourly pay").
156. Id. That attention to race and sex may fall underneath the radar of employment discrimination law in this way is somewhat ironic because the requirement of a "materially adverse action" has been identified as one of several limitations of individual disparate treatment theory for addressing discrimination in the modern workplace. See Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.-C.L. L. REV. 91, 116-17 (2003). The research on the bias-facilitating effect of segregation and rigid job boundaries adds further support for that critique. See supra notes 75-91 and accompanying text.
157. Consideration of race and sex in assigning members of work teams is also less likely to "trammel the interests" of the majority. See Johnson v. Transp. Agency of Santa Clara County, 480 U.S. 616, 634 (1987) (requiring that for affirmative action plan to be valid under Title VII that it not unnecessarily trammel the interests of the majority).
158. See, e.g., Kalleberg et al., supra note 129; Paul Osterman, Work Reorganization in an Era of Restructuring: Trends in Diffusion and Effects on Employee Welfare, 53 INDUS. & LAB. REL. REV. 179, 182, 184 (2000).
159. See, e.g., Catherine R. Albiston, Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights, 39 LAW & SOC'Y REV. II (2005) (examining how social institutions influence the mobilization of rights provided by the Family Medical Leave Act);
160. Lauren B. Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Laws, 97 AM. J. SOC. 1531 (1992) (discussing the features of equal opportunity law that make it particularly susceptible to intermediary mediation);
161. see also Christine Jolls, Antidiscrimination Law's Effect on Implicit Bias, in BEHAVIORAL ANALYSES OF WORKPLACE DISCRIMINATION (Mitu Gulati & Michael Yelnosky eds., 2008) (pointing out that the law can effect change indirectly and illustrating that individual disparate treatment law reduces discrimination indirectly by increasing the numbers of women and minorities in the workplace).
162. Although our focus in these preliminary considerations is on the legal definition of discrimination, associated with a legal right to be free from discrimination under Title VII, there may be other, less court-centered ways to use the law to facilitate some of the measures that we have identified. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001) (calling for a new regulatory approach to employment discrimination); see also Green, supra note 41, at 674-83 (advancing a non-legal-rights-based approach to the problem of discriminatory work culture).
163. The tendency for courts to see the organization of work as natural or outside of the employer's realm of decision, despite substantial evidence to the contrary, may present a problem for plaintiffs attempting to use disparate impact theory. See 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2006) (that employer "uses a particular employment practice that causes a disparate impact") (emphasis added); EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292 (7th Cir. 1991) (holding that an employer's word-of-mouth recruiting was a form of "passive reliance" and not an employer policy subject to challenge under disparate impact theory). See generally Michelle Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 WASH. & LEE L. REV. 3 (2005) (arguing that "workplace essentialism" hinders efforts to transform the way in which work gets done). Conceptually, the challenge here is also different from the paradigmatic disparate impact case. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court's foundational disparate impact decision, for example, the testing and education requirement had a disparate impact because black people had been deprived of educational opportunities. The argument here, in contrast, is that the employer's use of extreme rigidity and segregation in job categories facilitates stereotype-reinforcing interactions (and different treatment) at work.
164. See generally Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 VAND. L. REV. 849 (2007).
165. The measures that we identify need not be incorporated in the law as bases of liability per se, such that failure to institute cross-boundary work teams, for example, would itself establish employer liability. Rather, they can be included as measures for consideration in developing consent decrees that meaningfully address a variety of sources of discrimination, both at the individual and the relational level.
166. See supra notes 48-52 and accompanying text.
167. See Green, supra note 136, at 151-52.
168. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (involving allegation of disparate impact); AFSCME v. County of Nassau, 799 F. Supp. 1370 (E.D.N.Y. 1992) (involving allegation of disparate treatment). See generally Leticia M. Saucedo, Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. MICH. J.L. REFORM 447, 457-65 (2008) (describing the courts' response to plaintiffs' use of segregation evidence).
169. 839 F.2d 302 (7th Cir. 1988).
170. See 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, 103 HARV. L. REV. 1749, 1750-54 (1990).
171. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1998) (holding that sex stereotyping violates Title VII).
172. Vicki Schultz, The Sanitized Workplace, 112 YALE L.J. 2061, 2174-75 (2003);
173. see also THERESA M. BEINER, GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW 204, 205 (2005) (proposing that factfinders be required to consider structural factors, including whether the workplace is segregated along gender lines, in determining whether a harassing environment is "because of sex"). For an effort to take segregated environments into account in the law of affirmative action, see Yelnosky, supra note 27, at 1417-19 (arguing that stratification/segregation should satisfy the "manifest imbalance" requirement of Johnson v. Transp. Agency of Santa Clara County, 480 U.S. 616 (1987)).
174. Saucedo, supra note 145, at 449.
175. See, e.g., Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 3 (2006) (arguing that "structural employment inequalities cannot be solved without going beyond the generally accepted normative underpinnings of antidiscrimination law"). For a response to this argument, and an effort to lay the normative foundation for a structural approach to employment discrimination law, see Green, supra note 141.
176. HAROLD GARFINKEL, STUDIES IN ETHNOMETHODOLOGY 68 (1967).
177. Id.
178. See Brickson, supra note 91, at 82 (presenting a model of organizational, task, and reward structures that would encourage relational identity orientation and promote benefits associated with diversity); Kramer, supra note 89, at 191 (presenting a model of intergroup relations showing that organizational structures shape intergroup conflict or cooperation). See generally Bacharach et al., supra note 90 (studying factors contributing to supportive intergroup relations that contribute to information sharing and improved dividends from employee diversity).
179. See Green, supra note 141.
180. Indeed, if the connection between organization of work and business concerns is perceived as tighter than the one between personnel decision-making practices, for example, plaintiffs may have a difficult time succeeding under existing theories. See supra note 141 and accompanying text.
181. John W. Meyer & Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 AM. J. SOC. 340, 357 (1977).
182. Bisom-Rapp, supra note 3.