When Organizations Rule: Judicial Deference to Institutionalized Employment Structures

Abstract

Although there is now a considerable literature on how law and legal principles serve as institutionalized models for organizations, there has been far less attention to how organizational practices may serve as institutionalized models for courts. This article offers a theoretical and empirical analysis of legal endogeneity -a subtle yet powerful process through which institutionalized organizational structures and practices influence judicial conceptions of legality and compliance with antidiscrimination law. We argue that, irrespective of their effectiveness, organizational structures, such as grievance procedures, anti-harassment policies, evaluation procedures, and formal hiring procedures, become symbolic indicators of compliance with anti-discrimination laws, first within organizations, but eventually in the judicial realm as well. As organizational structures become increasingly institutionalized, lawyers and judges become more likely to associate them with rationality and fairness and to infer nondiscrimination from the mere presence of those structures. Legal endogeneity has observable manifestations: judges increasingly refer to organizational structures in their opinions, find them relevant to determinations of legal liability, and ultimately defer to those structures by inferring nondiscrimination from their presence. We test legal endogeneity theory by analyzing a random sample of 1024 federal employment discrimination decisions from 1965-1999. We find that legal endogeneity has increased over time; that judicial deference is most likely when plaintiffs lack social and economic clout; and that judicial deference is most likely when the legal theories require judges to rule on organizational attributes that are not directly observable. We suggest that legal endogeneity weakens the impact of law as judges come to view organizational structures as indicators of legal compliance even when those structures are ineffective in combating discrimination.2

Relational Power, Legitimation, and Pregnancy Discrimination

“…Building on prior work, we have theoretically prioritized the significance of culture, structure, and interaction in understanding pregnancy discrimination and have highlighted, through in-depth case analyses, the pertinence of legitimation. Employers' power to legitimize inequality, in fact, resides in both organizational policies-policies that employers can invoke or not and that are often treated with deference within the legal-judicial process (see Edelman et al 2011)-and in larger, culturally resonant discursive strategies imbued with gendered proscriptions and that elevate institutional meritocracy and business profit rationales. These insights can and should be used in public education efforts about pregnancy discrimination and speak more broadly to questions about the persistence of gender inequality.…”

Insidious Procedures: Diversity Awards Legitimize Unfair Organizational Practices

“…Due to their prevalence, diversity awards have been used as an instantiation of prodiversity messages in past research examining the effects of pro-diversity messages on perceptions of discrimination Kaiser et al, 2013). An advantage of examining diversity awards is that a wide variety of people (e.g., judges; see Dobbin, 2009;Edelman, Krieger, Eliason, & Albiston, 2011), may be particularly likely to assume that awards are a valid indicator of fair treatment of diverse groups. For that reason, companies may also be particularly likely to seek them out (see Marques, 2010).…”

Critical Perspectives on Wellness

“…Sociologists of law already well understand that businesses embrace symbolic expressions of compliance with antidiscrimination laws and that judges interpret these sympathetically (Edelman 1992(Edelman , 2005. Business practice becomes incorporated into legal precedent about what is reasonable to do to prevent discrimination, and when a business does the standard thing, such as publish a statement that it does not discriminate or hold a workshop, judges defer to the business and accept that it did not discriminate (Edelman et al 2011). Scholars have also documented the tendency of rights-based legal language to become ''managerialized,'' or remade into terms more hospitable to the work environment during its take-up and use in the daily life of organizations (Edelman, Fuller, and Mara-Drita 2001).…”