Vincent J. Roscigno
Inventing Equal Opportunityby Frank Dobbin
"Inventing Equal Opportunity is the most important work of organizational sociology of the last quarter century. Challenging many of our basic assumptions about social movements and organizational change, this book is a must-read for sociologists concerned with inequality and those attempting to influence corporate responsibility activities in corporations."/i>
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"Inventing Equal Opportunity is the most important work of organizational sociology of the last quarter century. Challenging many of our basic assumptions about social movements and organizational change, this book is a must-read for sociologists concerned with inequality and those attempting to influence corporate responsibility activities in corporations."David A. Thomas, coauthor of Breaking Through: The Making of Minority Executives in Corporate America
"Frank Dobbin offers a fresh interpretation of equal opportunity that emphasizes corporate personnel management rather than law. Grounded in original evidence, Inventing Equal Opportunity makes the important point that management professionalismlike other institutions of civil societystructures the space between markets and states. Dobbin's outstanding book should be read by scholars across the social sciences and by practicing attorneys and managers. It is erudite yet accessible."Sanford M. Jacoby, University of California, Los Angeles
"The book is key to understanding the transformation of American society in the late twentieth century. But it is also a more general study of the processes through which public policy becomes embedded in the economy and the society."Michael Piore, Massachusetts Institute of Technology
"Frank Dobbin demonstrates the central role that employers themselves have played in the evolution of the understanding of equal opportunity and discrimination in America. Drawing on decades of research and interviews with hundreds of corporate players, he brings an entirely new perspective to one of America's enduring challengesensuring that all Americans have equal access to job opportunities without regard to their color, gender, or age."Barbara Reskin, University of Washington
"Inventing Equal Opportunity is a marvelous book. It tells a major part of the story of the civil-rights revolution thatdespite hundreds of books and thousands of articleshas been stunningly neglected. Its surprising protagonists are the personnel and HR people in firms across the United States who, through diligent if unplanned effort, created the meaning of equal opportunity. Dobbin is a masterful writer."John D. Skrentny, University of California, San Diego
"A major work of scholarship that addresses a long-standing lacuna in the field, Inventing Equal Opportunity represents a substantial intervention in the lively interdisciplinary debate over the origins of affirmative action and equal employment opportunity. Marshalling a potent blend of original and secondary evidence, Dobbin tackles the crucial puzzle of corporate policies and programs, uncovering the overlooked role of personnel experts and drawing conclusions of broad theoretical importance for scholars from numerous fields."Anthony S. Chen, University of Michigan
Vincent J. Roscigno
Christine L. Williams
Winner of the 2010 Max Weber Award in the Organizations, Occupations, and Work Section of the American Sociological Association
One of Choice's Outstanding Academic Titles for 2009
"Frank Dobbin's impressive Inventing Equal Opportunity documents the crucial role played by the personnel profession in translating equal employment law into practice. . . . Dobbin makes a powerful argument about the importance of long-overlooked personnel managers in creating the legal environment that governs so much of an American's working life."Science
"In this superb book, Dobbin explains the process through which white males have now become 'victims' of a system intended to uplift disadvantaged groups; at the same time, it reveals the fallacy of judicial neutrality in civil rights cases. . . . Overall, Dobbin tells a clear, well-documented, fascinating story about workplace relations."R.L. Hogler, Choice
"Inventing Equal Opportunity provides a much needed corrective to our understanding of the workings of corporate America in the face of external pressures surrounding inequality and law. . . . Consequent to [its] many strengths, I have no doubt that Inventing Equal Opportunity will find a welcome home on the 'must read' shelf among sociologists and graduate students of inequality, law, organizations, professions, and work."Vincent J. Roscigno,Contemporary Sociology
"Dobbin's book is an eye-opening account of how a professional group used demands for equal opportunity to expand its professional jurisdiction. . . . Through their policies and programs, these experts heightened expectations for fair treatment and promoted a more sociological understanding of racism and sexism inside organizations."Christine L. Williams, Gender and Society
"This impressive book makes a convincing case for human resources professionals as key players in the implementation of civil rights laws."Edward Berkowitz, Journal of Social History
"Frank Dobbin has written a careful institutional analysis of how human resource professionals invented equal opportunity. The book is a pleasure to read and a field guide for what historically careful institutional analyses should look like. For institutionalists and law and society scholars the book is necessary reading. Inventing Equal Opportunity is likely to become one of the definitive books on the history of equal opportunity law and corporate personnel practice."Donald Tomaskovic-Devey,American Journal of Sociology
"This is an excellent, smart book attuned to the implications its argument has for our understanding of social movements, racial progress, and federalism."Jennifer Delton, Journal of American History
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Inventing Equal Opportunity
By Frank Dobbin
Princeton University PressCopyright © 2009 Princeton University Press
All right reserved.
Chapter OneREGULATING DISCRIMINATION
The Paradox of a Weak State
IN 1961, JOHN F. KENNEDY DECREED that companies wanting to do business with the federal government would have to take affirmative action to end discrimination. The year after Kennedy's assassination, Lyndon Johnson signed the Civil Rights Act of 1964, outlawing discrimination in education, housing, public accommodations, and employment. No one could have anticipated the effects of these mandates on the workplace. Not a single sentence remains from the corporate personnel manual of 1960. Firms have changed how they recruit, hire, discipline, evaluate, compensate, and fire workers.
The agents of change were civil rights activists and then politicians, but the people who invented equal opportunity-decided what it would mean on the ground-were personnel managers. After the Civil Rights Act was passed, social movement activists played bit roles. Members of Congress, judges, federal officials, and presidents had parts in the drama, but it was personnel experts who concocted equal opportunity programs, and later diversity management programs, in the context of changing ideas about discrimination. Public officials approved some new programs and rejected others, but it was personnel experts who put the programs together. Some of the changes were visible and dramatic, as when firms struck rules reserving good jobs for white men or wrote rules against trading jobs for sex. But many of the changes were subtle, as when firms began advertising every open job or set up written performance evaluation systems, and their origins in civil rights law were soon forgotten.
If the Civil Rights Act of 1964 had read, "It shall be unlawful for employers to operate without written job descriptions, diversity training programs, and sexual harassment grievance procedures," firms would have seen the revolution coming. Instead, the act outlawed discrimination in broad strokes. Most managers never imagined that the law applied to their companies. Yet once enforcement was expanded in the early 1970s, personnel experts were able to sketch equal opportunity programs with a free hand precisely because Congress had presented employers with a tabula rasa rather than setting out precise rules and regulations. Personnel managers tried one thing after another, waiting to see if the courts would wipe the slate clean again. Mostly the courts let the changes stand.
This is the story of a professional network that changed course dramatically in the 1960s and 1970s. Circa 1960, personnel managers were negotiating with unions in some firms, trying to keep them at bay in others, and managing new hires and benefits everywhere. A decade later a group of personnel experts at military contractors such as Lockheed and General Electric had redefined the job of personnel. They invented the first wave of compliance measures and created a national network, tied together by military contractors worried about losing contracts and later by professional associations and business groups such as the Society for Human Resource Management and the Conference Board. This network of personnel specialists, some of whom now styled themselves as equal opportunity consultants, created wave after wave of equal opportunity innovations, linking each to ideas about discrimination put forth by activists and academics. In response to law professor Catharine MacKinnon's campaign to define sexual harassment as job discrimination, they built harassment grievance procedures and training programs. In response to new ideas about cognition and stereotyping from the social sciences, they devised diversity training programs that would make managers sensitive to their own unconscious biases. Now these privately concocted remedies are everywhere. Job hunters and judges are suspicious of firms that don't have them.
Personnel managers had created a legal code internal to the corporation-equal opportunity rules and pledges inscribed not in federal statutes but in corporate human resources manuals. Every new employee gets diversity training; job prerequisites are spelled out in writing; workers can only be disciplined by a committee; harassment claims go to a grievance panel. Firms have become states unto themselves.
This revolution has not been silent, but the public debate over equal opportunity has largely missed the point. Pundits decried quotas and reverse discrimination, which never became commonplace, but neglected the widespread adoption of performance evaluations and job descriptions, grievance procedures and training programs. Many of these things were folded smoothly into the human resources manual, and so even human resources managers forgot that they became popular as equal opportunity measures. Then when affirmative action came under attack in the early 1980s, human resources experts pointedly argued that diversity training and work-family programs were not affirmative action measures at all, but were there to increase productivity.
Why Personnel Defined Equal Opportunity
There is a rich trove of books on each of the first three acts in the equal opportunity drama: the civil rights movement, passage of equal opportunity laws, and federal enforcement of those laws. Those books neglect the long fourth act, in which the personnel profession's compliance efforts translated the law into practice. The drama only had a fourth act because, rather than spelling out precisely what equal opportunity meant, Congress left it to judges and bureaucrats to decide, and judges and bureaucrats heard constant appeals from citizens to rethink the definition of discrimination. Public officials came to define fair employment by looking at the "best practices" of leading firms, and so in the end the personnel profession defined equal opportunity through its compliance initiatives.
In the first act of the equal opportunity story, the civil rights movement called for Congress to outlaw discrimination in employment, education, housing, and public accommodations, demanding legislation that, with the one hundredth anniversary of Lincoln's Emancipation Proclamation of 1862 looming, might make good on the promise that all men (and women) are equal in the eyes of the law. While the civil rights movement spurred John F. Kennedy's affirmative action order in 1961 and the Civil Rights Act of 1964, activists played little role in deciding what compliance would look like. At first the Urban League and the NAACP created jobs banks and advised employers on how to recruit, but those contributions were short-lived. By the end of the 1960s, personnel administrators had taken the baton and were running the next leg of the relay on their own. As for that other social movement, the women's movement, it got rolling after personnel experts had already begun to define compliance. While activists went on to influence public policy, they no more designed corporate compliance than did civil rights activists.
In the second act, politicians required federal contractors to practice equal opportunity in 1961, required employers to pay men and women the same wages for the same work in 1963, and required all employers to offer equal employment opportunity in 1964. Books chronicling how policymakers negotiated these policies, and which legislators and regions led the charge, document just how these changes came about. yet these studies also made clear that from the time policymakers outlawed discrimination, they did little to define compliance.
In the third act, federal administrators and courts shaped how these vague laws would be enforced. Rather than encouraging a color-blind approach, for instance, federal administrators encouraged a race- and gender-conscious system of accounting for progress because they needed a metric by which to judge firms. The federal reporting system focused employer attention on the issue of equal opportunity, but it did not define what employers would do. When bureaucrats or the courts took stands on compliance, most ratified what the Fortune 500 were doing. In 1971 the Supreme Court faulted Duke Power Company for excluding black applicants by testing them for skills not used on the job. That ruling ratified test validation practices that leading military contractors had embraced in the 1960s, based on decades-old advice from personnel psychologists. A generation later the Supreme Court's twin sexual harassment decisions of 1998, credited with encouraging companies to adopt harassment grievance procedures, in fact ratified procedures that 95 percent of employers already had in place. Over the years, then, personnel experts taught public officials what discrimination was through the programs they made popular.
Courts and bureaucrats played their part in defining compliance, but the popular corporate programs such as open job posting, job test validation, and maternity leave were worked out by personnel experts, not public officials. Judges rarely did more than give the nod to programs already popular among leading firms. Courts followed-they did not lead. Congress rarely did more than allow innovations to stand, but in some cases it put popular practices into writing, as in 1978 when it required all employers to treat pregnancy like other disabilities. The Supreme Court's follow-the-leader approach is also evident in its rulings on affirmative action in education. In his 1978 opinion in the famous five-to-four Bakke decision, overturning quotas in university admissions but supporting integration as a goal, Justice Lewis Powell held up Harvard as an example, quoting its amicus brief: "The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions.... Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos."
This book chronicles the fourth act in the drama, which began soon after John F. Kennedy signed Executive Order 10925 in 1961, requiring firms with federal contracts to take "affirmative action" to end discrimination. Personnel professionals crafted equal opportunity programs with instruments drawn from their professional arsenal, and those programs came to define fair employment and discrimination. It was personnel experts who decreed that managers should advertise jobs and that they should use performance evaluations to judge applicants for promotions.
Personnel took charge for three reasons. First, Congress, John F. Kennedy, and Lyndon Johnson had crafted bills and presidential edicts in high-minded, but vague, language. They outlawed discrimination without saying what it was. In the context of America's separation of powers and common-law tradition, this meant that civil rights law was ripe for what sociologist Lauren Edelman terms the "endogenous" definition of compliance. Those being regulated helped to establish the terms of compliance. This happened in part because Congress had decided not to create a regulatory agency with independent authority to set compliance standards-an agency in the mold of the National Labor Relations Board. The result was a system in which scattered judges across the country evaluated claims about compliance. Judges were in no position to invent compliance standards from scratch, so they took their cues from leading firms.
Second, personnel experts took charge because they saw an opportunity to push programs they had long favored, at a time when unions were in decline and thus when many of their traditional duties were on the wane. They used civil rights law to expand their duties, and numbers, within the firm. They now snuck virtually every element of the "modern personnel system" of the fifties in through the back door as an equal opportunity measure, arguing that programs to rationalize the allocation of people to jobs, and their movement up through the ranks, would increase efficiency while eliminating bias. By the end of the century the profession had grown tenfold, while the workforce had only doubled.
Third, the other principal contender for defining compliance was the legal profession, but lawyers were not so anxious to take over this task. Personnel experts succeeded by arguing that bureaucratic innovations could keep firms out of court, but lawyers balked at the idea of peddling remedies that the courts had not approved. That was not part of the profession's modus operandi. Thus personnel experts came to define compliance in part because they had something lawyers were not offering, plausible bureaucratic vaccines against litigation. Despite the absence of evidence that those vaccines stopped discrimination, judges gave companies that adopted those "best practices" credit for acting in good faith. They were suspicious of firms that weren't doing all of the latest things. And so what personnel made popular gradually became lawful.
How Public Policy Spawned Legal Codes in Companies
Because Washington never codified fair employment regulations, companies inscribed their own regulations in their human resources manuals. Perhaps if fair employment advocates had won a powerful administrative agency, that agency might have set clear standards. Instead, two toothless federal agencies and dozens of state fair employment agencies oversaw firms, and hundreds of judges were responsible for interpreting the law. No single official could demand that an employer cease discriminating and sanction the employer who did not. Thus no one could give employers a clear answer to the question, "How do we stay out of court?"
The Paradox of America's Weak State
The fragmentation of the U.S. state, with powers dispersed across federal, state, and local governments, and with legislative, judicial, and administrative branches at each level, is usually described as a weakness. The paradox of this particular kind of weakness is that it led to extensive corporate compliance efforts by firms worried that agencies and courts might change compliance standards. Executives tried to anticipate where the law would move next and installed entire departments devoted to tracking legal change. Fragmentation made the law unpredictable in part by giving citizens so many venues for pursuing change. They could appeal to Congress to clarify and expand statutes, to federal judges to reinterpret statues, to state judges to assess liability under tort laws, to state legislatures to expand the definition of discrimination, to federal bureaucrats to issue new guidelines, and to city governments to outlaw newly recognized kinds of discrimination. The result is that the state was "porous," open to input. This system allowed citizens to appeal to judges and bureaucrats to reinterpret even laws that were written with crystal clear language, with the express purpose of preventing judicial expansion. Thus the Civil Rights Act, designed explicitly to protect against judicial expansion, was expanded by judges nonetheless.
Corporate equal opportunity experts speculated about how interpretation of the law might evolve, and how legislation might change. The speculations often followed new social scientific ideas, such as the idea of institutional discrimination or the idea of cognitive bias. Experts then set up their own regulatory systems within firms consisting of practices ranging from bureaucratic promotion procedures to halt institutional discrimination to mandatory diversity awareness programs to end cognitive bias. Discrimination came to be defined as the absence of such measures.
Seeing the rise of big corporations, the nineteenth-century French philosopher Henri de Saint-Simon feared that they might overwhelm weak states and threaten the rights of citizen-employees. Democratic nations that shared Saint-Simon's concern created legal protections for employees. Paradoxically, in the United States, some of those very protections, such as civil rights laws that seemed to their champions to be too vaguely worded and spottily enforced, led corporations to create their own private codes of legal conduct. America's weak state stimulated private-sector activism in the protection of citizens' rights.
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What People are Saying About This
John D. Skrentny, University of California, San Diego
David A. Thomas, coauthor of "Breaking Through: The Making of Minority Executives in Corporate America"
Anthony S. Chen, University of Michigan
Sanford M. Jacoby, University of California, Los Angeles
Barbara Reskin, University of Washington
Michael Piore, Massachusetts Institute of Technology
Meet the Author
Frank Dobbin is professor of sociology at Harvard University. His books include "Forging Industrial Policy: The United States, Britain", and "France in the Railway Age; The New Economic Sociology: A Reader" (Princeton); and "The Global Diffusion of Markets and Democracy".
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