Wednesday, September 26, 2007

Questions Concerning Org Theory and Sex Harassment Law

The field of organizational studies is occupied by three disciplines: political science, sociology, and business administration. Each discipline approaches the subject differently and thus limitedly; political science considers the administrative state, sociology concerns itself with the macro-analysis of organizations and institutions, and business administration focuses on the micro-analysis of organizational actors and dynamics. These disciplines tend to treat the law as an exogenous coercive force on organizations, one that affects organizational form, structure, and business practices.

Only recently have sociolegal scholars begun to apply organizational theory to the law, chiefly in the context of employment discrimination law. Sociology of law scholars such as Susan Bisom-Rapp, and Lauren Edelman have introduced theoretical and methodological approaches grounded in organizational studies to the study of employment law. These authors have argued that the endogeneity of law is central to explaining the mutually reinforcing ways in which legal institutions and private organizations collaborate to correct a problem. In many cases, businesses respond to legal regulation by creating prophylactic regimes (diversity training, mentoring programs, grievance procedures) that lead to very little substantive change in organizational culture or in outcomes in employment. Businesses tend to mimic each other in their practices, and thus organizational isomorphism tends to spread through the industry: what may be regarded as exogenous coercion (legal regulation) is also endogenous self-regulation that attempts to satisfy the goals of compliance and normative conformity. Thus, the literature in the area addresses the adequacy and efficacy of businesses practices that seek to comply with federal employment regulations and judicial tests: affirmative action programs, diversity and sexual harassment training, networking and mentorship programs, and most efficacious of all, manager accountability programs.

However, even these new institutionalist accounts of employment law do not adequately address the question of whether the employment regulations and legal standards are themselves sufficient impetuses for changing entrenched organizational cultures and practices. That is, by going too far in the direction of examining the endogeneity of legal regulation and the efficacy of responsive self-regulatoin, the scholarship does not address, as doctrinal legal scholars tend to do, the sufficiency of the law itself to act as an exogenous, compliance-compelling force.

In Burlington Industries, Inc. v. Ellerth and its companion case Faragher v. City of Boca Raton, the Court addressed the question of whether employers may be held liable for the actions of their sexually harassing supervisors in cases in which the harassed employee suffers no adverse, tangible employment action. The Court, per Justice Kennedy, stated that Title VII was “designed to encourage the creation of antiharassment policies and effective grievance mechanisms,” to further the goals of deterring harassing conduct. In the absence of a tangible employment action, the employer may raise the Ellerth/Faragher affirmative defense that the employer 1) “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and 2) “that the plaintiff employee unreasonably failed to take advantage of any preventive corrective opportunities provided by the employer or to avoid harm otherwise.” Thus, the Court appears to encourage prophylactic, but possibly merely symbolic organizational practices on the part of employers to address the problem of sexual harassment in the workplace.

The question remains whether the Ellerth/Faragher encouragement of employer preventative policies, which may be merely symbolic and ineffective, exists in tension with the Meritor savings Bank v. Vinson Court’s statement that “the mere existence of a grievance procedure and a policy against discrimination [does not] insulate the [employer] from liability. While those facts are plainly relevant…they are not necessarily dispositive.” When is the endogenous, preventative regulation within and among organizations sufficient to satisfy the exogenous legal standards created by the courts to redress harms already suffered? Do such legal standards and regulations make any sense, particularly in light of social science research that assesses the most efficacious methods for transforming organizational culture and employment outcomes? And should these legal standards be reconceptualized in light of such findings?