Targeting Workplace Context: Title VII as a Tool for Institutional Reform

Green, Tristin K.

doi:10.2139/ssrn.475241

Cited by 3 publications

(6 citation statements)

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“…Policy mandates that seek to remedy discrimination by changing individual-level behavior, through bias reduction programs or raising rights awareness, are less effective in promoting equality. These findings are in keeping with much literature that demonstrates the structural roots of discrimination (Reskin 2000; Sturm 2001; Green 2003; Green and Kalev 2008; Hirsh 2014). To the extent that modern-day discrimination lurks in employment structures, policies, and practices that systematically disadvantage particular groups, it follows that remedies must also be at the structural, rather than individual, level in order to reap benefits.…”

Section: Discussionsupporting

confidence: 90%

Mandating Change

Hirsh¹,

Cha²

2016

ILR Review

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Although complying with and monitoring court-mandated changes in organizations’ policies following employment discrimination lawsuits can be costly to both employers and taxpayers, little is known about the impact of such mandates on increasing sex and race managerial diversity in organizations. Using data on approximately 500 high-profile employment discrimination lawsuits resolved in U.S. federal courts between 1996 and 2008, the authors estimate the impact of court-mandated policy changes on shifts in the presence of white women, black women, and black men in managerial positions. Policies designed to reduce bias expand opportunities for white women but not for other demographic groups. By contrast, opportunities in management for all groups expand when policies are designed to increase organizational accountability by establishing specific recruitment, hiring, or promotion plans and monitoring arrangements. Policies designed to increase rights’ awareness are associated with declines in managerial diversity. Notably, compared with verdicts and settlements with modest penalties, those with the most costly monetary payouts do not expand managerial diversity; and in fact, they can backfire.

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Section: Discussionsupporting

confidence: 90%

Mandating Change

Hirsh¹,

Cha²

2016

ILR Review

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“…16 Much more success was obtained for plaintiffs in ARJ17 v Minister for Immigration and Border Protection 17 where declarations and injunctions were sought in the Federal Court against the Minister in relation to a new policy that all mobile phones and SIM cards in possession of all detainees in immigration detention would be confiscated. 18 Ultimately, the Full Court of the Federal Court in ARJ17 v Minister for Immigration and Border Protection [2018] 19 ruled in favour of the plaintiffs and found the policy unlawful.…”

Section: Refugee Law Casesmentioning

confidence: 99%

Class Actions and Human Rights Litigation in Australia: Realising the Potential

Calnan

2022

LiC

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Most commentary and, indeed, most controversy concerning class actions in Australia has concerned shareholder class actions and how they are funded. This paper consciously changes the focus of its commentary away from such debates and towards examining human rights class actions in Australia. As Australia is the only advanced country without national constitutional or statutory protections of human rights, attempts to legally protect human rights have manifested themselves indirectly in various areas of the law that might not at first glance seem to have much to do with human rights. Class actions has been one of those legal areas. Given the paucity of existing commentary on Australian human rights class actions this paper begins with an examination of the types of cases that have been bought as human rights class actions and provides examples of them. Drawing on literature concerning the effectiveness of actions undertaken to protect human rights and on class actions protecting human rights overseas, it uses publicly available information to undertake a qualitative analysis concerning the effectiveness of such litigation. After coming to some tentative conclusions about such effectiveness, it examines whether US class actions law might be a source of ideas that could be adapted to address any such limitations of effectiveness in the same way that US class actions jurisprudence was originally drawn upon by the Australian Law Reform Commission to recommend that class actions provisions be enacted in Australia. Given the relative absence of legal norms protecting human rights in Australia as well as the relative weakness of social movements seeking greater legal protection for human rights in Australia, the search by human rights advocates for ways to access courts and obtain greater legal furtherance of human rights is a task of some urgency. This paper attempts to contribute to that search as well as to advance the analysis of Australian human rights class actions and their effectiveness more generally.

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“…Examples gleaned from recent sociological research include employers making hiring decisions based on soft skills (Moss & Tilly, 1996, 2001; Neckerman & Kirschenman, 1991) or looks (Williams & Connell, 2010); treating White and Black job applicants differently based on their backgrounds (Pager, 2003); using gender and parental status as proxies for job commitment and competence (Correll et al, 2007); and assigning workers to jobs, accounts, or sales districts based on their “personal fit” with clientele (Collins, 1997; Rivera, 2011)—all of which serve to reproduce existing ascriptive hierarchies. Although such subtle biases have long lurked beneath blatant sexism and racism, sociological and legal scholars agree that present-day discrimination is more commonly of this covert variety—embedded in structures, culture, and interactional dynamics (Bielby, 2000; Reskin, 2000; Sturm, 2001) even in the absence of an easily identifiable discriminatory event (Green, 2003a, 2003b) or intentional antipathy on the part of allocators.…”

Section: Beyond Treatment and Impactmentioning

confidence: 99%

“…Noting the limits of this binary, several legal scholars have questioned the capacity of current legal doctrine to interrogate more complex forms of discrimination and have offered alternative conceptualizations and frameworks for legal inquiry that recognize the unconscious and unintentional nature of discrimination as well as its structural origins (Bisom-Rapp, 1999, 2001a, 2001bGreen, 2003aGreen, , 2003bGreen, , 2005Green, , 2007Green, , 2011Hart, 2011;see, e.g., Krieger, 1995;Sturm, 2001). The work of Green (2003aGreen ( , 2003bGreen ( , 2005Green ( , 2007Green ( , 2011 is particularly instructive in that she outlines a structural account of disparate treatment theory, which conceptualizes discrimination in terms of "workplace dynamics" rather than a single, identifiable discriminatory decision or the adverse impact of a seemingly neutral employment practice. As Green (2003a) argues, "Conceptualizing a form of discrimination in terms of discriminatory bias in workplace dynamics places much needed emphasis on the structural factors while making clear that both conscious and unconscious bias operate at multiple levels of social interaction" (p. 92).…”

Section: Beyond Treatment and Impactmentioning

confidence: 99%

“…Disparate treatment doctrine (left panel, Table 1) conceptualizes discrimination as involving the treatment of a functionally irrelevant status, such as sex, race, or ethnicity, as relevant to, and in some cases, decisive for the allocation of a reward or penalty, such as a new job, promotion, or termination (Blumrosen, 1993, p. 50;Merton, 1972, p. 20). Although such subtle biases have long lurked beneath blatant sexism and racism, sociological and legal scholars agree that present-day discrimination is more commonly of this covert variety-embedded in structures, culture, and interactional dynamics (Bielby, 2000;Reskin, 2000;Sturm, 2001) even in the absence of an easily identifiable discriminatory event (Green, 2003a(Green, , 2003b or intentional antipathy on the part of allocators. Allocators of workplace rewards are assumed to be motivated by conscious antipathy or animus directed toward an individual because of his or her membership in a protected status group.…”

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confidence: 99%

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Beyond Treatment and Impact

Hirsh

2013

American Behavioral Scientist

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Discrimination remains integral to understanding both how inequality is produced and how it can be remedied in employment settings. Yet like many sociological concepts, the notion of discrimination involves an uneasy mapping of theory to practice. Traditional conceptualizations of discrimination as differential treatment are ill-fitted to the structural and relational nature of much discrimination in the contemporary era. The disparate impact doctrine, which recognizes policies or practices that systematically disadvantage protected groups, picks up some of the theoretical slack, but offers little in the way of conceptualizing individuals' complex and entangled experiences with inequality at work. In this article, I provide a conceptual reorganization of theories of discrimination, underscoring recent calls to move beyond the confines of the current disparate treatment and disparate impact binary by recognizing the structurally and culturally embedded nature of bias and discrimination. Drawing on recent sociological research as well as my own analysis of legal records and interviews with plaintiffs involved in high-profile sex and race lawsuits settled in the past decade, I illustrate how differential treatment emerges in the context of and enabled by systems of vulnerability and privilege, workplace culture, and compositional asymmetries. I conclude with a discussion of the implications of this framework for antidiscrimination enforcement efforts.

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Targeting Workplace Context: Title VII as a Tool for Institutional Reform

Cited by 3 publications

References 4 publications

Mandating Change

Mandating Change

Class Actions and Human Rights Litigation in Australia: Realising the Potential

Beyond Treatment and Impact

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