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 President’s Message
    • Diplomat
    • Membership Renewal
    • Member Profile Updates
    • Top 100 Badge
    • Media
  • Top 40
    • Civil Plaintiff Officers / Executive Committee
    • Criminal Defense Officers / Executive Committee
    • Top 40 Under 40 Trial Academy Bootcamp
    • Benefits
    • About
    • Top 40 President’s Message
    • Membership Renewal
    • Member Profile Updates
    • Top 40 Badge
    • Media
  • Specialty Assoc
    • About
    • Shop
    • Officers
    • Membership Renewal
    • Member Profile Updates
    • Media
  • 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
      • Summit Sponsors
    • Top 40 Under 40 Trial Academy Boot Camp
    • Mass Torts Made Perfect
    • The Lanier Master Class 5.0 Trial Academy 2021
    • 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

Toyota Will Pay $180M to Settle Violations of the Clean-Air Act

Toyota Will Pay $180M to Settle Violations of the Clean-Air Act

January 15th, 2021

The U.S. Department of Justice and U.S. Environmental Protection Agency (EPA) announced today that the United States has[Read More...]
Boeing's Insitu Will Pay $25M to Settle a Whistleblower Complaint About Used Drone Parts

Boeing's Insitu Will Pay $25M to Settle a Whistleblower Complaint About Used Drone Parts

January 13th, 2021

Bingen, Wash.-based Insitu, a Boeing subsidiary, has agreed to pay $25 million to settle allegations that it used recycl[Read More...]
Deutsche Bank Agrees to Settle Criminal and Civil Charges for $130M

Deutsche Bank Agrees to Settle Criminal and Civil Charges for $130M

January 11th, 2021

DEUTSCHE Bank AG agreed to pay US$130 million to settle criminal and civil charges that it bribed foreign officials and manip[Read More...]
Boeing Pays $2.5B to Settle Charges Tied to the 737 MAX Crashes

Boeing Pays $2.5B to Settle Charges Tied to the 737 MAX Crashes

January 8th, 2021

Boeing has agreed to pay just over $2.5 billion to resolve a federal charge of “criminal misconduct” for how its [Read More...]
Texas Attorney General Seeks $43M in Google Antitrust Lawsuit

Texas Attorney General Seeks $43M in Google Antitrust Lawsuit

January 6th, 2021

The mass exodus of Texas Attorney General Ken Paxton's top staff over accusations of bribery against their former boss has le[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.