On the surface, America’s commitment to equal opportunity in the workplace has never been clearer. Virtually every company has antidiscrimination policies in place, and there are laws designed to protect these rights across a range of marginalized groups. But, as Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen compellingly show, this progressive vision of the law falls far short in practice. When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they’ve lost regardless of the outcome of the case. Employer defendants also are dissatisfied with the system, often feeling “held up” by what they see as frivolous cases. And even when the case is resolved in the plaintiff’s favor, the conditions that gave rise to the lawsuit rarely change. In fact, the contemporary approach to workplace discrimination law perversely comes to reinforce the very hierarchies that antidiscrimination laws were created to redress.
Based on rich interviews with plaintiffs, attorneys, and representatives of defendants and an original national dataset on case outcomes, Rights on Trial reveals the fundamental flaws of workplace discrimination law and offers practical recommendations for how we might better respond to persistent patterns of discrimination.
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Rights on Trial
How Workplace Discrimination Law Perpetuates Inequality
By Ellen Berrey, Robert L. Nelson, Laura Beth Nielsen
The University of Chicago PressCopyright © 2017 The University of Chicago
All rights reserved.
Putting Rights on Trial
Gerry Handley's Case against Manufacturing, Inc.
Gerry Handley (P14), a thirty-four-year-old African American computer operator, had worked for a large manufacturing company for nine years when, after being assigned to a new unit, he began to receive what he perceived as racial harassment from his supervisor and coworkers. He told us:
We worked in this big computer, like a lab. They had these big computers and every day, you know, we would run and maintain these computers like 24 hours, 7 days a week, and they had like a main console. And these guys that were like our supervisors, you know, you'd come in and they might, almost like on the board. ... They'd have a picture of a black man eating like ribs, and he'd have like all types of sauce on his face, you know. And they would just all the time say stuff like the KKK, and just to me it was like a poisoned environment.
Mr. Handley said he suffered such treatment for three years before he complained to the Equal Employment Opportunity Commission (EEOC). We asked what finally led him to file a formal complaint:
GH: They would like always bring up these racial conversations and make these racial jokes. What I would do is I'd just ignore them. I wouldn't laugh or I wouldn't listen in, I would just sit there and they would try to pull me into the conversation asking me questions. They started talking about incest, and they started talking about blacks from slavery time, you know, they bred them and sold them, and they inbred them down in the south. And I'm from down south, and so they asked me, they told me a lot of the blacks had sex with their daughters and stuff like that, way back from the Caribbeans. And I would just sit there listening like, "Oh my God, I know they're not saying this." And the guy asked me, he said, did I ever have sex with my daughter. And so ...
LBN: He asked you if you had sex with your daughter?
LBN: And this is your boss or your manager?
GH: He was like my lead.
Mr. Handley's case is unusual among employment discrimination lawsuits along several dimensions. First, he was joined by two other plaintiffs. Among federal discrimination claims, 90% are made by a single plaintiff. Second, Mr. Handley experienced overtly racist harassment that was well documented by fellow workers; his own records provided an unusually strong legal claim. Third, he ended up, according to official records, a "winner" at law. He settled with the manufacturer for $50,000, substantially higher than the median settlement ($30,000) in employment civil rights cases. Finally, Mr. Handley's case is unusual in that he maintained his job with his employer and even won back the position from which he had been transferred when he complained.
Yet in other respects, Mr. Handley's case was typical. He suffered many of the harms that other plaintiffs have incurred over the course of litigation. Tensions surrounding the lawsuit led to a divorce from his wife (who was white), and Mr. Handley lived out of his car during the course of the lawsuit. He did not trust his lawyer and felt shortchanged in the settlement, but he felt he had no choice but to accept it. Mr. Handley had to pay 20% of his settlement to his attorney, and his ex-wife claimed one-half of the remainder. While he regained his old job, he suffered a loss in job seniority, which may have contributed to his layoff just a year later during a major "downsizing."
We asked whether Mr. Handley felt like anyone in the company supported him:
GH: These ten people that were supporting me in the department, they like ruined their lives. They like had to move and lost their jobs and had to relocate, and I could tell you, it was just horrible. It poisoned the whole environment. If I had to do it over again, I wouldn't do it because I lost everything.
LBN: So what would you do if you had to do it over again?
GH: I would have took it. When he said that, you know, about my daughter, I would have just took it and kept my mouth shut and not tell anybody. Keep your mouth shut and just take it, you know, because if you fight back, it ain't worth it. The legal system and the justice, it ain't there.
Gerry Handley exemplifies the burdens that many plaintiffs bear in employment civil rights litigation. Despite several advantages, the Handley case illustrates plaintiffs' personal risks in the contemporary American approach to workplace discrimination. The United States' employment civil rights system is extensive and complex. It rests on constitutional protections, as well as on statutory prohibitions of discrimination. Those prohibitions were elaborated first by Title VII of the US Civil Rights Act of 1964 — which prohibited discriminatory employment decisions based on race, sex, color, religion, or national origin — and later extended to include, significantly, disability and age as well as sexual harassment. Enforcement of these rights depends on regulation and litigation brought by those who believe they have been the targets of discrimination. These rights are intended to dismantle workplace discrimination across multiple hierarchies, the most notable of which, today, are race, sex, disability, and age.
As evident in Mr. Handley's experience, the adversarial character of the antidiscrimination regime imposes considerable personal and financial costs upon individual plaintiffs. These costs appear to be especially high for African Americans and other people of color who bring claims of racial discrimination. Ironically, then, the groups for whom civil rights legislation was first and most urgently sought may now experience a unique form of inequality within the system of employment civil rights litigation.
Kristen Baker's Case against GCo
Kristen Baker (P34), a thirty-three-year-old white woman, worked as an assistant buyer in the sales division of GCo, a relatively small, family-owned company that manufactures components for cars and other machinery. As Ms. Baker told us, in her first four years of employment she worked hard, took classes, and earned a certificate of expertise relevant to the work. In her fifth year, Daniel Miller, a male employee with six months longer tenure in the same job, was promoted to salesman despite the extra efforts Ms. Baker believed Mr. Miller had not undertaken. Ms. Baker approached the vice president with whom she had been working. As she recalled, he told her, "'Daniel is a guy and he's got three kids and a wife, and you are a girl and you married a doctor, so you obviously don't need the income.'" Although she thought this was not fair, she made the best decision for her and her family, which was to continue working at the manufacturing plant.
Ms. Baker says she knew from the moment she was hired that the work environment might be, in her words, somewhat "salty." She remembered being told that "'the salesmen are men, and they are busy people and there is some cussing and stuff that goes on.' And I said, 'Well that's fine, I can handle that. I can dish it out too.' ... It didn't bother me, because it wasn't about me."
According to Ms. Baker, the workplace was increasingly professionalized when GCo was sold to a larger company. Ironically, though, the introduction of more formal human resources (HR) practices resulted in a rise of unprofessional behavior. The norms that were carefully policed when the company was family-run were harder to enforce in the new bureaucratic structure. Soon, the salesmen generally, and Mr. Miller in particular, were swearing more. And it was not just about venting frustration; what once could be explained away as rude or bawdy became obscene. Ms. Baker came to believe that the sexualized teasing was ruining her credibility with her vendors and clients.
Mr. Miller began bringing pornographic magazines and movies to work, Ms. Baker told us. He facilitated and even charged admission for pornography viewing sessions in the conference room at lunch. He showed Ms. Baker pictures of pornography depicting bestiality. She utilized the new HR policies and complained to her manager, documenting multiple complaints. There were other women in the department, but the ethic was one of gendered toughness and, while they would express frustration privately to Ms. Baker, they did not make formal complaints. Ms. Baker described what led her to take formal action outside the company:
There were two final straws. One of them was when he [had] a pornographic picture of a woman who had a watermelon shoved into her vagina. And [the woman in the photograph] was on a bed, and [she] had stiletto heels on. ... Daniel took it in front of a group of my peers and said, "Oh, look Kristen, we would recognize you anywhere with those heels on." I was humiliated, just humiliated and then reported it.
Shortly thereafter, in front of a client:
Daniel went in a room and pulled out this tray of chocolate dildos and took out one, a big one, and stuck it in my face, in my mouth, and said, "Here I know you like to suck on these. Suck on this." And I just [said], "I can't do this anymore."
The facts of Ms. Baker's situation are extreme. Although blatant discrimination may be more common than a number of modern commentators and scholars suggest, this case is one of the more outrageous examples of obvious sex discrimination in our data. Ms. Baker took all of the appropriate steps to stop the discrimination, making repeated reports to the appropriate workplace representatives, but nothing happened. After the chocolate dildo incident, she told us that she told her boss:
"Look: if this does not stop, if some action is not taken, I will file a lawsuit." What wound up happening is that I just kept threatening and threatening and threatening. ... I said, "You know, I keep talking to you about what is going on, he is now the vice president, nothing has changed, and I am going to talk to an attorney." I really wasn't going to at that time. I just wanted him to stop so that I could just do my job without having to be nervous about staying late, about being there alone with him because he was a sexual pervert.
The company did nothing to try to remedy the situation, and a friend encouraged Ms. Baker to speak with an attorney. As she recounted, her attorney told her, "You know, I don't normally take noncorporate clients ... [but] I have to take this case, because you really were treated inhumanely." Ms. Baker said her attorney informed her "that it wasn't a million dollar case." This was not important to her, she told us: "It was never about money, so we [demanded] a simple [settlement] of just $100,000 ... and then an apology." And she wanted to keep her job because it provided her family's health insurance (her husband had a chronic illness that required ongoing medical attention).
Ms. Baker described how the new owner of the company reacted to notice of the suit: "[He] just laughed and said to my face, 'I've hadnumerous lawsuits against me in companies that I have owned.' And he is a very rich, pompous man, and he said, 'I have never lost one yet.'" Ms. Baker recalled:
The owner truly believed that I made all of this stuff up just to get money. And because I could get no one — literally no one — to corroborate any of my stories except my manager, they really believed that the two of us were trying to rip off the company.
As the case proceeded, Mr. Miller eventually was forced to give a deposition in which he denied the most outrageous accusations and sugarcoated others. Shortly after his deposition, the company's owner asked a respected former employee, Tim Fligstein, what he saw when he worked with Mr. Miller and Ms. Baker. With nothing to lose now that he worked for another company, Mr. Fligstein answered honestly. In Ms. Baker's words, he told the owner what happened, "word for word." Ms. Baker cried as she told us, "That is when they decided to drop the suit because they knew that they were wrong."
After the owner heard the truth from someone he apparently valued (a man), GCo decided to settle the lawsuit. The company's first offer was $10,000 for Ms. Baker's attorney's fees and a confidentiality clause. She would not receive health insurance, and she was bothered that the settlement "would have to go down in [sic] record that I lost the lawsuit and I said, 'No. I can't do that.'" After a month of negotiations, she would have settled for a public apology, one dollar, and to keep her job. GCo wanted a private apology, some cash settlement, and for Ms. Baker to leave the company. She recounted her feelings:
I am not leaving the company. I didn't do anything wrong. If I leave at this point then I am the guilty party because then it looks like I just wanted it for the money. ... And it had absolutely not one thing to do with the money. It had to do with my integrity and who I am.
Ms. Baker dropped the lawsuit, keeping her job and benefits in exchange for the following concessions: apologies from Mr. Miller, as well as from the past and current presidents of GCo in front of all of GCo's executive management; one dollar (that was not recorded in any settlement documents); a stipulation that the case would neither be characterized as a "loss" for Ms. Baker nor could GCo's owner ever claim that he "always won lawsuits"; that Mr. Miller could never advance in management; and that the company start a sexual harassment program that month. Ms. Baker enjoyed a seventeen-year career at GCo after the lawsuit. Mr. Miller eventually was fired or quit (no one we interviewed was exactly sure which).
It may be difficult to believe that discrimination this blatant and offensive still occurs in American workplaces every day, but it does. It may be surprising that those who suffer this kind of treatment often are abandoned and even persecuted by the very HR departments that are supposed to help resolve such matters, but they are. And it may be shocking that the legal system is so difficult to navigate and so loaded with steep personal costs, but it is. Finally, it may be alarming to believe, in the era of media accounts that portray "greedy plaintiffs," "runaway juries," and a litigation "explosion," that even proverbial "winners" in the employment discrimination system receive only modest awards, if any. But they do.
The system of employment civil rights litigation reflects a paradox in American society. At some level, America's commitment to workplace fairness has never seemed so obvious. As Berrey, Dobbin, and Skrentny each suggests, government, business, universities — indeed, a whole professional subgroup of equal employment officers — articulate a normative commitment to equal opportunity and inclusion across a range of traditionally disadvantaged groups. For over five decades, employment civil rights litigation has been seen as an instrument to achieve greater workplace opportunity — first for people of color and women, and more recently for the aged and those with disabilities. The 1991 Civil Rights Act reflected this ongoing commitment to litigation as a vehicle for change. The 1990s saw a dramatic increase in the number of discrimination lawsuits filed in federal court, before the number of lawsuits flattened and declined in the 2000s. Recent calls to expand employment discrimination protection to lesbian, gay, bisexual, transgender, and queer individuals are another indication of at least some groups' faith in legally enforceable rights as a tool to bring about social change.
Yet we also see stalled progress (if not retrenchment) on the ladder to more influential and better paying jobs for disadvantaged groups, as well as signs of growing economic inequality in the American workplace. We continue to see attacks on employment civil rights litigation from critics who decry such litigation as a frivolous, costly, excuse factory. A paradox posed by this system is that American society reveres rights and considers some individuals who have asserted their rights heroes — Rosa Parks, Martin Luther King, Jr., and César Chávez, to name a few. But psychological literature demonstrates that in the workplace, we regard those who claim to be the victim of discrimination with suspicion and tend to denigrate them.
What, then is the role of employment civil rights litigation in dismantling barriers to equal employment opportunity for traditionally disadvantaged groups? To address that fundamental question, we must look at how employment civil rights litigation works in practice. Despite considerable research on various aspects of employment discrimination and its treatment by law, there has been no comprehensive analysis of this system and its consequences for parties to litigation.
Rights on Trial
This book puts rights on trial in two ways. First, we document the process through which plaintiffs in employment civil rights cases put forth their claim in law. Plaintiffs literally must put their rights on trial. As their relationships with their employers change from employees to litigants, the workers are put on trial. Their loyalty, credibility, and competence are scrutinized and often attacked. Defendants, too, have rights — namely, to defend themselves against charges of violating civil rights laws through the legal process. We ask: What is the experience of litigation for these parties and their attorneys? How do they understand litigation and its outcomes?
Excerpted from Rights on Trial by Ellen Berrey, Robert L. Nelson, Laura Beth Nielsen. Copyright © 2017 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of Contents
List of Tables and Figures
Part I. Introduction
Chapter 1. Introduction: Putting Rights on Trial
Chapter 2. Fifty Years of Employment Civil Rights
Chapter 3. A Quantitative Analysis of Employment Civil Rights Litigation: Case Characteristics, Plaintiff Characteristics, and Legal Outcomes
Part II. Narratives of Employment Civil Rights Litigation
Chapter 4. Workplace Wars: The Origins of Employment Civil Rights Lawsuits in the Workplace
Chapter 5. Representation and Race: Finding a Lawyer, Screening Clients, and the Production of Racial Disparities
Chapter 6. Representing Rights: Lawyer-Client Relationships
Chapter 7. Right Right, Wrong Plaintiff: Adversarial Conflict and the Disavowal of Discrimination
Chapter 8. Win, Lose, or Draw: Perspectives on Case Outcomes
Part III. Conclusion
Chapter 9. Stereotyping and the Reinscription of Race, Sex, Disability, and Age Hierarchies
Chapter 10. The Voices of Employment Civil Rights