Precis of the Day: Susan Sturm, Second Generation Employment Discrimination
Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458 (2001).
This article explores current and emerging regulatory approaches to "second generation" manifestations of workplace bias. Second generation bias involves structures and patterns of interaction within the workplace that, over time, exclude members of non-dominant groups. This complex and dynamic type of problems poses a serious challenge for a first generation system that depends on judicial or legislative elaboration of rules, enforced by judicial sanctions for deliberate violations. Over the last decade, an interesting and complex regulatory pattern has emerged to address second generation bias. Multiple public, private and nongovernmental actors are actively and interactively developing systems to address issues such as sexual harassment and the glass ceiling. Each of these institutional actors has begun to approach these questions as posing essentially issues of problem solving. Each has, to varying degrees, linked their anti-bias efforts with the more general challenge of enhancing institutional capacity to manage complex workplace relationships. These multiple actors have, perhaps unwittingly, begun to carve out distinctive roles and relationships that form the outlines of a dynamic regulatory system for addressing second generation discrimination. This article offers a framework that makes visible these emerging and converging patterns for addressing second generation discrimination problems in the judiciary, the workplace, and mediating institutions. It explores the potential for a judicially de-centered, holistic, and dynamic approach. This new regulatory approach shifts the emphasis away from primary reliance on after-the-fact enforcement of specific legal rules. Instead, normative elaboration occurs through a fluid, interactive relationship between problem solving within specific workplaces and the courts, mediated by non-governmental actors. In this framework, compliance is defined, achieved through, and evaluated in relation to improving institutional capacity to identify, prevent, and redress exclusion, bias, and abuse. The article documents examples of this structural approach in the workplace, the courts, and the non-governmental sector, and then extrapolates from these examples to offer a starting point for identifying how internal workplace processes can meet concerns about accountability, legitimacy and effectiveness. In particular, it provides case studies of Home Depot, Intel, and Deloitte & Touche, and analyzes how these initiatives achieve accountability and effective remediation of second generation problems. It also addresses the counter-tendencies and patterns that undercut the viability of this structural approach, and proposes some preliminary steps that encourage the information pooling, capacity building, and accountability mechanisms needed to more fully realize the potential inchoate in the Supreme Court's structural jurisprudence. These proposals highlight the importance of professional and institutional gatekeepers, such as insurance companies, research consortia, human resource practitioners, advocacy organizations, and lawyers, in performing these crucial roles within the emerging regulatory system.
Sturm argues that current employment discrimination doctrine does well to address and remedy “first generation” employment discrimination claims, that is those concerning formal employment practices that were illegally discriminatory; with “smoking guns” like “Irish need not apply.” Second generation employment discrimination, particularly in the areas of sexual harassment and is more subtle however, and may stem from unconscious or cognitive bias rather than purposive exclusion based on prejudice. In the new era of decentralized, group-based decisional environments, such discrimination may be hard to link back to the “bad discriminatory supervisor” model, and thus second generation discrimination is “structural, relational, situtational.”
Sturm proposes a new “de-centered, holistic, dynamic” regulatory framework for addressing structural forms of bias. This is very much akin to the “organizational field” approach in Dimaggio, et al, that would include all the actors: legal, organizational, regulatory—in its framework. Sturm argues that employers, organizational actors, and courts in particular should facilitate this shift towards a structural (as opposed to individual actor) approach to employment discrimination. Moreover, a structural approach should not ignore the possibility that the employer will adopt sham or merely symbolic remedies that leave the larger structural problems intact. The problem-solving system should be determined by all the organizational, legal, and regulatory actors in order to address discrimination at its fundamental, structural level.
Sturm analyzes the problem-solving and dispute resolution processes of three companies: Deloitte and Touche, Intel Corporation, and Home Depot.
Sturm found that the companies shared these characteristics important to the effectiveness of their internal problem solving regimes:
Problem Oriented: each company developed a customized system to address problems holistically and in relation to its particular culture
Functionally Integrated: the systems linked processes for addressing interrelated domains, such as principle (bias, fairness) and productivity (recruitment, turnover), individual employment decisions, and systemic patterns, operations and problem-solving procedures
Data Driven: decision-making generates and is informed by ongoing analysis of information that reveals patterns of dysfunction and success
Accountability: each system generates process and outcome measures of effectiveness, and builds in systems of accountability for those responsible for effective implementation.
Law is useful in this regulatory scheme in its role as a “catalyst” for change, providing legitimacy for human resource concerns. Lawyers and the legal system created a scheme of legal risks and incentives for organizational restructuring and compliance. Moreover, law gives a normative vocabulary for employee’s conception of their rights in the day to day operations of the workplace. The judiciary has a structural role in elaborating the general non-discrimination principles enacted in Title VII, thus performing an expressive function that reinforce the general norms of law. Courts also incentivize employer behavior with respect to legal liability, and encouraging institutional innovation to address workplace problems through internal grievance procedures and HR offices. Courts should encourage employers to evaluate their own processes for effectiveness, creating a system of court-recognized “best practices” to inform legal norms and standards in particular cases, and to develop a “common law” of the workplace practice.
This is an excellent article, and integrates organizational literature and doctrinal literature very well. I particularly liked her three case studies, which were analyzed from an organizational and legal perspective.
The idea that employment discrimination is structural, situational, and relational is not new to sociology or organizational studies, but it has only recently been explored by legal academics. Law tends to be stuck in the adversary model; with single-plaintiff initiated suits and the conceptualization of discrimination law along the lines of the victim-perpetrator model (see Alan Freeman). Indeed, this is precisely the type of first generation employment discrimination seen in Slack v. Havens. Sturm’s approach would broaden (but not to the detriment of legal clarity) the conception of discrimination in the workplace to reflect the new structures and institutions of organizations—discrimination is not a solitary enterprise, and it should not be approached in such a manner.