Legalized Escape Routes from Employment Discrimination Claims

• In Event: 50612 - Hiring, Firing, Discrimination, and Wrongdoing: Investigating Understudied Organizational Mechanisms

Abstract

Various legal scholars have argued in favor of closing the many loopholes in Civil Rights legislation. Such legal loopholes are significant in terms of the leverage employers have, how they get around civil rights oversight by invoking seemingly neutral criteria, and how they often vilify victims of employment discrimination and harassment. Yet, we know little about how these employer defenses unfold in real workplaces. In this paper, we content code 665 race, national origin, sex, and pregnancy-based employment discrimination case files and associated narrative materials (out of 1,015 in the full dataset) adjudicated between 1999 and 2019 and that were collected from the civil rights and fair employment practice agencies across eight distinct U.S. states (specifically, Florida, Illinois, Massachusetts, Montana, New York, North Carolina, Ohio, and Oregon). Our findings demonstrate how employers and their lawyers undertake five significant defense strategies in largely successful attempts to combat discrimination and harassment claims against them: 1) naming the same actor inference; 2) invoking the employment-at-will doctrine; 3) asserting definitional challenges to what constitutes “severe or pervasive” workplace harassment; 4) employing technical scapegoats, such as the case occurring outside of the state’s statute of limitations; and 5) declaring institutional demographic diversity defenses. We conclude by discussing the implications of these findings for understanding the structured power dynamics between employers and employees. We argue that these legalized escape routes for employers should receive more scholarly attention.

Authors

• Reginald Anthony Byron, University of Denver

• Vincent J. Roscigno, The Ohio State University