The National Trial Lawyers
  • Home
    • Meet Our Team
    • Contact Us
    • Mission & Goals
    • FAQ
  • Webinars
  • News
  • Membership Directory
    • Top 100 Map – Civil Plaintiff
    • Top 100 Map – Criminal Defense
    • Top 40 Under 40 Map – Civil Plaintiff
    • Top 40 Under 40 Map – Criminal Defense
  • Top 100
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Benefits
    • About
    • Top 100 Presidents Message
    • Diplomat
    • Membership Renewal
    • Member Profile Updates
    • Top 100 Badge
  • Top 40
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Top 40 Under 40 Trial Academy Bootcamp
    • Benefits
    • About
    • Top 40 Presidents Message
    • Membership Renewal
    • Member Profile Updates
    • Top 40 Badge
  • Specialty Assoc
    • About
    • Shop
    • Officers
    • Membership Renewal
    • Member Profile Updates
  • Nominate
    • Top 100
    • Top 40
    • Specialty Association
    • Trial Lawyer Hall of Fame
    • Trial Lawyer of the Year
    • Trial Team of the Year
    • America’s Most Influential Trial Lawyer
    • America’s Most Influential Law Firm
    • Lifetime Achievement Award
  • Shop
  • Magazine
    • A-List
  • Education and Networking Agenda
    • Trial Lawyers Summit
    • Top 40 Under 40 Trial Academy Boot Camp
    • Mass Torts Made Perfect
    • The Lanier Trial Academy Master Class 6.0
    • The Business Of Law
    • Webinars
  • Hall of Fame
    • Trial Lawyer Hall of Fame

Workplace Discrimination Law Reinforces the Very Harms It Aims to Redress

Posted on July 19, 2017 by Larry Bodine

Rights on Trial bookA major new book by three American Bar Foundation (ABF) scholars illustrates how employment civil rights litigation entrenches patterns of discrimination in and out of the workplace.

“Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality” offers a comprehensive analysis of employment civil rights litigation in the U.S. and gives voice to real plaintiffs in their pursuit of justice and defense of their fundamental civil rights.

Co-authors and sociologists Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen examined 1,788 cases filed between 1988 and 2003 and conducted 100 interviews with plaintiffs, plaintiffs’ attorneys, employer defendants, and defense attorneys, to represent a holistic view of workplace discrimination law in action.

Though significant legislative and judicial progress in civil rights protections has been made over the past 50 years, “Rights on Trial” emphasizes how workplace discrimination based on race, gender, age, and disability persists. The authors find that the adversarial nature of litigation places plaintiffs at a disadvantage from the outset. Legal recourse is rare, but plaintiffs who do file legal charges often experience substantial challenges in navigating litigation, including:

  • mistreatment by their colleagues and management
  • difficulty securing legal representation
  • extensive personal and financial burdens – including job loss – as a result of the case.

Meanwhile, employers manage litigation in ways that minimize costs and insulate their workplaces from change, particularly through their reliance on small settlements.

Existing systems of privilege

The book exposes the ways that employment civil rights litigation can underscore existing systems of privilege. The research reveals that many plaintiffs struggle to obtain a lawyer as a result of structural inequalities and lawyer biases. It finds that 23% of workplace discrimination cases are filed without a lawyer or pro se. Cases filed pro se are dismissed at a rate of 40%, compared to 11% for cases with attorneys.

These disadvantages are exacerbated for people of color; African American plaintiffs are 2.5 times more likely to file claims without a lawyer and Asian American and Latino plaintiffs are 1.9 times more likely to file pro se compared to their white peers.

“Even though Americans revere rights, and employers say they strongly favor discrimination law, the litigation process demeans the people who make rights claims,” said the authors. “In fact, employment civil rights litigation tends to reinforce the very patterns of inequality that the law was intended to eliminate.”

“Rights on Trial” is the culmination of more than a decade of research examining the U.S. model of employment civil rights litigation. In February 2017, the EEOC cited the research contained in “Rights on Trial” as a basis for changes in its 2017-2021 Strategic Enforcement Plan. This research was supported by the American Bar Foundation, the National Science Foundation, the Searle Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Ford Foundation.

“This book reflects ABF research at its finest,” said ABF Director Ajay K. Mehrotra. “The authors have conducted a deeply rigorous empirical study of employment discrimination that tackles timely and important questions about the stubborn persistence of discrimination and its relationship to social inequality.”

For more information on “Rights on Trial” or on Berrey, Nelson, and Nielsen’s research, please visit rightsontrial.com.

About the authors

Ellen Berrey is an ABF-affiliated scholar, assistant professor of sociology at the University of Toronto, and a celebrated sociologist whose research investigates the culture and politics of inequality, race, and law.

Robert L. Nelson is the MacCrate Research Chair at the ABF and professor of sociology and law at Northwestern University. He is a leading scholar of the legal profession and discrimination law and an expert on the relationship between law and social inequality.

Laura Beth Nielsen is a research professor at the ABF and professor of sociology and law and the director of the Center for Legal Studies at Northwestern University. Nielsen’s award-winning research focuses on the sociology of law, civil and constitutional rights, and how ordinary people understand and relate to law. She has edited several books on employment civil rights including “Handbook of Employment Discrimination Research: Rights and Realities,” co-edited with Nelson in 2005.

The American Bar Foundation (ABF) is among the world’s leading research institutes for the empirical and interdisciplinary study of law. An independent, nonprofit organization for more than 60 years, The ABF seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions.  To further this mission the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy, and society in the United States and internationally. The ABF’s primary funding is provided by the American Bar Endowment and The Fellows of The American Bar Foundation.

Posted in Blog, Employment

Comments are closed.

Recent Posts

Defrauded College Students Will Have $6 Billion Forgiven in a New Settlement

Defrauded College Students Will Have $6 Billion Forgiven in a New Settlement

June 24th, 2022

The Biden administration has agreed to cancel $6 billion in student loans for about 200,000 former students who say they were[Read More...]
An Iowa City Settles Lawsuit Over a Deadly Police Shooting For $5 Million

An Iowa City Settles Lawsuit Over a Deadly Police Shooting For $5 Million

June 24th, 2022

Burlington, Iowa, has agreed to pay $5 million to settle a wrongful death lawsuit brought by the mother of a man who was shot[Read More...]
Co-Owners File a $695 Million Lawsuit Against Georgia Power Over a Contract Dispute

Co-Owners File a $695 Million Lawsuit Against Georgia Power Over a Contract Dispute

June 22nd, 2022

The owners of a majority share of a nuclear power plant being expanded in Georgia are suing lead owner Georgia Power Co., cla[Read More...]
A Tesla Worker Rejects a $15 Million Race Bias Settlement

A Tesla Worker Rejects a $15 Million Race Bias Settlement

June 22nd, 2022

A Black former elevator operator at Tesla Inc's flagship California assembly plant on Tuesday rejected a $15 million award in[Read More...]
Juneteenth Freedom Day

Juneteenth Freedom Day

June 13th, 2022

History Prior to Juneteenth African tribe members were kidnapped, sold into slavery in the American colonies, and exp[Read More...]

Contact Us | Terms of Use | Privacy Policy

Attorney information and content provided on this website is provided for the benefit of members of The National Trial Lawyers and as a public service by Legal Associations Management, Inc. The website and all data are the property of Legal Associations Management, Inc. Data, including without limitation attorney information and content, on the site may not be mined, sold, or used commercially for any purpose without the explicit written consent of Legal Associations Management, Inc. This site may not be accessed by any automated program for extracting data for any use. By accessing and using the site you agree that you will not develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, browser plug-ins and add-ons, or any other technology) to scrape data or otherwise copy profiles and other data. Unauthorized use or attempted unauthorized use of this system may subject you to both civil and criminal penalties.