Working Law: Courts, Corporations, and Symbolic Civil Rights

By Lauren B. Edelman

Since the passage of the Civil Rights Act, virtually all companies have antidiscrimination policies in place. Although these policies represent some progress, women and minorities remain underrepresented within the workplace as a whole and even more so when you look at high-level positions. They also tend to be less well paid. How is it that discrimination remains so prevalent in the American workplace despite the widespread adoption of policies designed to prevent it?

One reason for the limited success of antidiscrimination policies, argues Lauren B. Edelman, is that the law regulating companies is broad and ambiguous, and managers therefore play a critical role in shaping what it means in daily practice. Often, what results are policies and procedures that are largely symbolic and fail to dispel long-standing patterns of discrimination. Even more troubling, these meanings of the law that evolve within companies tend to eventually make their way back into the legal domain, inconspicuously influencing lawyers for both plaintiffs and defendants and even judges. When courts look to the presence of antidiscrimination policies and personnel manuals to infer fair practices and to the presence of diversity training programs without examining whether these policies are effective in combating discrimination and achieving racial and gender diversity, they wind up condoning practices that deviate considerably from the legal ideals.
 

• Language: English
• Publisher: University of Chicago Press
• Release date: Nov 28, 2016
• ISBN: 9780226400938

Book preview

Working Law

The Chicago Series in Law and Society

Edited by John M. Conley and Lynn Mather

Also in the series:

THE MYTH OF THE LITIGIOUS SOCIETY: WHY WE DON’T SUE by David M. Engel

POLICING IMMIGRANTS: LOCAL LAW ENFORCEMENT ON THE FRONT LINES by Doris Marie Provine, Monica W. Varsanyi, Paul G. Lewis, and Scott H. Decker

THE SEDUCTIONS OF QUANTIFICATION: MEASURING HUMAN RIGHTS, GENDER VIOLENCE, AND SEX TRAFFICKING by Sally Engle Merry

INVITATION TO LAW AND SOCIETY: AN INTRODUCTION TO THE STUDY OF REAL LAW, SECOND EDITION by Kitty Calavita

PULLED OVER: HOW POLICE STOPS DEFINE RACE AND CITIZENSHIP by Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel

THE THREE AND A HALF MINUTE TRANSACTION: BOILERPLATE AND THE LIMITS OF CONTRACT DESIGN by Mitu Gulati and Robert E. Scott

THIS IS NOT CIVIL RIGHTS: DISCOVERING RIGHTS TALKS IN 1939 AMERICA by George I. Lovell

FAILING LAW SCHOOLS by Brian Z. Tamanaha

EVERYDAY LAW ON THE STREET: CITY GOVERNANCE IN AN AGE OF DIVERSITY by Mariana Valverde

LAWYERS IN PRACTICE: ETHICAL DECISION MAKING IN CONTEXT Edited by Leslie C. Levin and Lynn Mather

COLLATERAL KNOWLEDGE: LEGAL REASONING IN THE GLOBAL FINANCIAL MARKETS by Annelise Riles

SPECIALIZING THE COURTS by Lawrence Baum

ASIAN LEGAL REVIVALS: LAWYER-COMPRADORS AND COLONIAL STRATEGIES IN THE RESHAPING OF ASIAN STATES by Yves Dezalay and Bryant G. Garth

THE LANGUAGE OF STATUTES: LAWS AND THEIR INTERPRETATION by Lawrence M. Solan

BELONGING IN AN ADOPTED WORLD by Barbara Yngvesson

MAKING RIGHTS REAL: ACTIVISTS, BUREAUCRATS, AND THE CREATION OF THE LEGALISTIC STATE by Charles R. Epp

LAWYERS ON THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION by Ann Southworth

ARGUING WITH TRADITION: THE LANGUAGE OF LAW IN HOPI TRIBAL COURT by Justin B. Richland

SPEAKING OF CRIME: THE LANGUAGE OF CRIMINAL JUSTICE by Lawrence M. Solan and Peter M. Tiersma

HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO SOCIAL JUSTICE by Sally Engle Merry

JUST WORDS, SECOND EDITION: LAW, LANGUAGE, AND POWER by John M. Conley and William M. O’Barr

DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS by William Haltom and Michael McCann

JUSTICE IN THE BALKANS: PROSECUTING WAR CRIMES IN THE HAGUE TRIBUNAL by John Hagan

RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES OF AMERICANS WITH DISABILITIES by David M. Engel and Frank W. Munger

THE INTERNATIONALIZATION OF PALACE WARS: LAWYERS, ECONOMISTS, AND THE CONTEST TO TRANSFORM LATIN AMERICAN STATES by Yves Dezalay and Bryant G. Garth

FREE TO DIE FOR THEIR COUNTRY: THE STORY OF THE JAPANESE AMERICAN DRAFT RESISTERS IN WORLD WAR II by Eric L. Muller

OVERSEERS OF THE POOR: SURVEILLANCE, RESISTANCE, AND THE LIMITS OF PRIVACY by John Gilliom

PRONOUNCING AND PERSEVERING: GENDER AND THE DISCOURSES OF DISPUTING IN AN AFRICAN ISLAMIC COURT by Susan F. Hirsch

THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE by Patricia Ewick and Susan S. Silbey

THE STRUGGLE FOR WATER: POLITICS, RATIONALITY, AND IDENTITY IN THE AMERICAN SOUTHWEST by Wendy Nelson Espeland

DEALING IN VIRTUE: INTERNATIONAL COMMERCIAL ARBITRATION AND THE CONSTRUCTION OF A TRANSNATIONAL LEGAL ORDER by Yves Dezalay and Bryant G. Garth

RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION by Michael W. McCann

THE LANGUAGE OF JUDGES by Lawrence M. Solan

REPRODUCING RAPE: DOMINATION THROUGH TALK IN THE COURTROOM by Gregory M. Matoesian

GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING-CLASS AMERICANS by Sally Engle Merry

RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE by John M. Conley and William M. O’Barr

Working Law

Courts, Corporations, and Symbolic Civil Rights

LAUREN B. EDELMAN

THE UNIVERSITY OF CHICAGO PRESS

CHICAGO & LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2016 by The University of Chicago

All rights reserved. Published 2016.

Printed in the United States of America

25 24 23 22 21 20 19 18 17 16    1 2 3 4 5

ISBN-13: 978-0-226-40062-4 (cloth)

ISBN-13: 978-0-226-40076-1 (paper)

ISBN-13: 978-0-226-40093-8 (e-book)

DOI: 10.7208/chicago/9780226400938.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Edelman, Lauren B., author.

Title: Working law : courts, corporations, and symbolic civil rights / Lauren B. Edelman.

Description: Chicago ; London : The University of Chicago Press, 2016. | Includes bibliographical references and index.

Identifiers: LCCN 2016020355 | ISBN 9780226400624 (cloth : alk. paper) | ISBN 9780226400761 (pbk. : alk. paper) | ISBN 9780226400938 (e-book)

Subjects: LCSH: Civil rights—United States. | Discrimination in employment—Law and legislation—United States. | Discrimination in employment—United States. | Affirmative action programs—Law and legislation—United States. | Affirmative action programs—Law and legislation—Social aspects. | Corporate governance—United States. | Corporate governance—Law and legislation—Social aspects. | Sociological jurisprudence.

Classification: LCC KF3464 .E34 2016 | DDC 344.7301/133—dc23 LC record available at https://lccn.loc.gov/2016020355

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

To the memory of my parents, Murray Jacob Edelman and Bacia Stepner Edelman

Contents

Preface and Acknowledgments

PART I.  The Interplay of Law and Organizations

CHAPTER 1.  Introduction

CHAPTER 2.  The Endogeneity of Law

CHAPTER 3.  Ambiguous Law and the Erosion of the Progressive Vision in the Courts

PART II.  Law in the Workplace

CHAPTER 4.  Professional Framing of the Legal Environment

CHAPTER 5.  The Diffusion of Symbolic Structures

CHAPTER 6.  The Managerialization of Law

PART III.  The Workplace in Law

CHAPTER 7.  The Mobilization of Symbolic Structures

CHAPTER 8.  Legal Deference to Symbolic Compliance

CHAPTER 9.  Symbolic Civil Rights and the Endogeneity of Law

Notes

Bibliography

Index

Preface and Acknowledgments

The paradox at the heart of this book is that discrimination and inequality based on race and gender persist in the workplace a half century after the landmark Civil Rights Act of 1964. My interest in this problem stems in part from growing up during the civil rights movement and the early implementation of civil rights law. Workplace inequality became my focus during graduate school at Stanford, where I was fortunate to study the sociology of law with Lawrence Friedman and the sociology of organizations with Dick Scott and then to collaborate on a project examining due process in organizations with Dick Scott, John Meyer, Ann Swidler, and Frank Dobbin. I recall that Ann Swidler lent me her well-worn copy of Philip Selznick’s Law, Society, and Industrial Justice, and I was fascinated by his theorization of the role of legal ideals in shaping organizational governance. First as a student and years later as his colleague at Berkeley, I would have many conversations with Philip Selznick about the interplay of law and organizational governance. Although our perspectives differed, my research and thinking owes much to the wisdom he shared with me. Partly due to Selznick’s influence, I decided to attend law school at Berkeley. There I began to read employment discrimination cases and was struck by the differences between sociological and judicial conceptions of organizational behavior. This apparent incongruity eventually led me to a series of research projects focusing on how social reform law shapes the governance of organizations and how organizations, in turn, shape the meaning of law. This book represents the culmination of that research, integrating its findings and developing a perspective that I call legal endogeneity theory to explain both the relationship of law and organizations generally and the persistence of race and gender inequality in the workplace. In many ways, I build on the insights of Law, Society, and Industrial Justice, yet with a critical twist: whereas Selznick argued that organizational governance exhibited a natural tendency toward fairness and the rule of law, I highlight the limits of law in taming power and redressing inequality in organizations.

The law and society movement has long provided an intellectual home for my interests in law, inequality, and social change. Many law and society scholars have influenced my thinking, but I am particularly grateful to Lawrence Friedman, who has been a great mentor and friend and who makes being a law and society scholar fun. My critical stance on the limits of law derives in part from the influence of my father, Murray Edelman, whose pioneering work on symbolic politics no doubt at least indirectly inspired my thinking about symbolic civil rights. Although I shared his cynicism about the limited capacity of government policies to reshape deeply ingrained power relations, we frequently debated the value of traditional social science methods. He was the radical, conveying skepticism for dubious empirical indicators, which he eschewed as a form of political hegemony. I was the traditionalist, trying to convince him that such indicators could sometimes reveal underlying social and political biases. I suppose and hope that he would be at least amused to learn that my empirical indicators, however dubious, led me to conclusions that complement his own.

The research for and writing of this book entailed a long scholarly journey, and I owe thanks to a great many people. I thank my many graduate students over the years who have listened to and challenged my ideas, often helping me to discard arguments that made little sense and sharpen those that remained. I have benefited from outstanding research assistants. Early in the writing process, Rachel Best (now a faculty member at the University of Michigan) provided fabulous research assistance, and she has continued to be a wonderful collaborator and to offer sage advice to her successors in that role. Vasanthi Venkatesh, Melissa McCall, and Joy Milligan rendered excellent research assistance on particular chapters. I am especially indebted to my most recent research assistants—Alan Kluegel, Brent Nakamura, and Aaron Smyth—who for the past few years offered very helpful advice and provided coding, statistical analyses, figures, tables, references, and legal research with lightning speed.

I also offer thanks to the collaborators who worked with me on the research projects that I discuss in this book: Steven Abraham, Catherine Albiston, Rachel Best, Mia Cahill, Elizabeth Chambliss, Scott Eliason, Howie Erlanger, Linda Hamilton Krieger, John Lande, Iona Mara-Drita, Virginia Mellema, Brent Nakamura, Stephen Petterson, Asad Rahim, Sally Riggs Fuller, Aaron Smyth, Robin Stryker, Mark Suchman, and Christopher Uggen. Two people deserve special thanks for their substantial roles in the judicial deference study, which provided the central empirical test of legal endogeneity theory. Linda Krieger was my collaborator in designing the study. She patiently answered many questions on EEO law and took the lead in training and supervising the coders, an endeavor that turned out to be far more complicated than we anticipated. And it is with a mixture of sadness and admiration that I thank my late collaborator and good friend, Scott Eliason, who worked with me to design a modeling scheme that best represented the theoretical argument I wanted to test. He was a joy to work with and he weathered my statistical questions with great patience and good humor.

Rosann Greenspan, Howie Erlanger, and Aaron Smyth read and commented on the entire manuscript, including multiple versions of some parts. I cannot thank them enough for their substantial contributions they made to the final project and for their encouragement and friendship throughout. In addition to his work on this book, Howie Erlanger deserves special thanks for his years of wise and warm mentorship. I hope I have been able to pass on his commitment to younger scholars. I am also grateful to the numerous scholars who provided feedback on particular chapters or sections, including Catherine Albiston, Robert Bartlett, Kitty Calavita, Malcolm Feeley, Judge Nancy Gertner (Ret.), Joshua Guetzkow, Henry Hecht, Valerie Jenness, Cheryl Kaiser, Kimberly Krawiec, Linda Krieger, Joy Milligan, Calvin Morrill, Michael Musheno, Brent Nakamura, David Oppenheimer, Keramet Reiter, Ashley Rubin, James Rule, Vicki Schultz, and Victor Quintanilla. I have gained insight as well from discussions on EEO regulation with William Bielby, Susan Bisom-Rapp, Frank Dobbin, Alexandra Kalev, Brenda Major, Anna-Maria Marshall, Robert Nelson, Laura Beth Nielsen, John Skrentny, Kevin Stainback, Robin Stryker, John Sutton, and Donald Tomaskovic-Devey.

John Tryneski, executive editor at the University of Chicago Press, has been fabulous throughout. I appreciate his wise counsel and his patience as the projected completion date for the book became an ever-moving target. I also thank Rodney Powell, Leslie Keros, and all the staff at the University of Chicago Press, as well as the two anonymous reviewers who provided excellent feedback.

Finally, I am grateful for the support of a number of organizations. The National Science Foundation supported many of the empirical studies that I draw on in this book (SES 88-14070; SBR-9696247; SBR-9511843, and SES 0651870). Some of the research was completed while I was a Guggenheim Fellow and later a Fellow at the Center for Advanced Studies in the Behavioral Sciences at Stanford. I also received support from the University of Wisconsin–Madison, the University of California–Berkeley, Berkeley Law, and the Center for the Study of Law and Society. In 2005–2006, I learned much from discussions among members of the Discrimination Research Group, supported by the American Bar Foundation, the Center for Advanced Studies in the Behavioral Sciences, and the Ford Foundation. And in 2014, I benefited enormously from a month at the Rockefeller Foundation Center in Bellagio, Italy, where I wrote several chapters of this book and gained important insights from my discussions with Banny Banerjee and Judge Nancy Gertner (Ret.).

Part I

The Interplay of Law and Organizations

CHAPTER ONE

Introduction

The Civil Rights Act of 1964 is regarded as one of the most significant social reform laws ever passed in the United States. It held great promise for a nation in which, as Martin Luther King Jr. previsioned, people would be judged only by the content of their character.¹ More than fifty years later, although considerable progress has been made, that dream has yet to be realized. In this book, I argue that an important reason for continuing racial and gender inequality in the workplace is that employers create policies and programs that promise equal opportunity yet often maintain practices that perpetuate the advantages of whites and males. Over time, organizational policies that symbolize diversity have become widely accepted indicia of compliance with civil rights laws, irrespective of their effectiveness. When we see company brochures that highlight their diverse workforces or university websites that emphasize their commitment to equity and inclusion, we tend to think of those organizations as fair and nondiscriminatory even though we know little about whether men and women of color and white women have equal access to management and professional positions or are subject to harassment that makes it difficult for them to succeed. We have become a symbolic civil rights society: one in which symbols of equal opportunity are ubiquitous and yet often mask discrimination and help to perpetuate inequality.

The widespread acceptance of organizational policies that symbolize equal opportunity, moreover, extends into the legal realm, where courts too often focus on the presence of organizational policies that signify nondiscrimination more than they attend to evidence that minorities and women face systematic disadvantages at work. In so doing, courts embrace and condone symbolic civil rights. In Wal-Mart Stores, Inc. v. Dukes,² a case that illustrates this problem, the United States Supreme Court focused on a company policy banning sex discrimination more than on evidence that women were systematically denied advancement and training opportunities, paid less than men for similar work, steered into lower-paying jobs, subjected to a hostile work environment, and subject to retaliation if they sought to redress the alleged civil rights violations.

Betty Dukes, a fifty-four-year-old employee at a Walmart³ store in California, was the named plaintiff in a class action lawsuit that began in 2001 in the US District Court for the Northern District of California. In seeking to certify the largest class in US legal history, the plaintiffs provided evidence of widespread disparities in opportunities for women, offered statistical evidence showing that women were underrepresented in management and paid less than men, and presented expert testimony by sociologist William Bielby, who argued that Walmart’s corporate culture and discretionary personnel practices made it vulnerable to gender bias. The issue in determining class certification was whether there were common questions of law and fact such that the female employees could sue as a class rather than individually. In June 2004 the district court ruled in favor of class certification, and Walmart appealed. After multiple hearings at the federal appeals court, the full panel of eleven Ninth Circuit judges affirmed the district court’s class certification in February 2009 in a 6–5 vote, and Walmart appealed to the US Supreme Court.

The Supreme Court disagreed with the lower courts. In a 5–4 decision in 2011, with the justices divided along ideological lines, the Court ruled that the class action could not go forward and held that female employees would not be able to establish discrimination across all of Walmart’s roughly thirty-four hundred stores. In reaching the conclusion that there could be no common experience of discrimination, the majority opinion, written by Justice Antonin Scalia, emphasized, Wal-Mart’s announced policy forbids sex discrimination.⁴ Thus, despite evidence presented by the plaintiffs that showed overwhelming statistical disparities based on sex (women held more than two-thirds of the low-level hourly jobs but only one-third of the management positions and, even when promoted, were concentrated at the lowest managerial level) and anecdotal evidence of sex discrimination by many managers, the presence of a formal policy banning sex discrimination was an important factor in the Court’s decision to shut down the class action case.

The Wal-Mart decision is an example of a phenomenon I call judicial deference, in which judges infer a lack of discrimination in part from the presence of organizations’ formal policies even when those policies are ineffective and fail to protect employees’ civil rights. The formal antidiscrimination policy that the Court deferred to is an example of what I call a symbolic structure, a policy or procedure that is infused with value irrespective of its effectiveness. Symbolic structures connote attention to law or legal principles, whether or not they contribute to the substantive achievement of legal ideals. Symbolic structures exist along a continuum from symbolic and substantive, meaning that they signal attention to law and are effective at achieving legal ideals, to merely symbolic, meaning that they are ineffective at achieving legal ideals but retain symbolic value. Many symbolic structures have some substantive effect, but often much less than courts assume.

My focus on symbolism is inspired in part by work in political science that calls attention to the political deployment of symbols as a means of ensuring the quiescent acceptance of chronic inequality, deprivation, and daily indignities⁵ and, in the context of law, as powerful shapers of perceptions.⁶ I argue in this book that societal acceptance of and judicial deference to symbolic structures, irrespective of their effectiveness, help to explain why race and gender inequality persist in the American workplace more than a half century after the passage of Title VII of the 1964 Civil Rights Act.⁷

The Persistence of Race and Gender Inequality after Fifty Years of Civil Rights Legislation

Title VII of the 1964 Civil Rights Act ushered in a new era of civil rights legislation. Since its passage, many other civil rights laws mandating equal employment opportunity (EEO) have been enacted, including the Age Discrimination in Employment Act of 1967,⁸ which prohibits employment discrimination based on age (over forty); the Equal Employment Opportunity Act of 1972,⁹ which expanded the power of the Equal Employment Opportunity Commission (EEOC); the Americans with Disabilities Act of 1990;¹⁰ the Civil Rights Act of 1991;¹¹ and the Family and Medical Leave Act of 1993.¹² In addition to federal laws that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, disability, veteran status, and pregnancy, state and local EEO laws in some jurisdictions cover other types of discrimination as well, including discrimination on the basis of weight and sexual orientation.

Although most of my arguments apply to protected groups in general, I focus in this book on discrimination on the basis of race and sex because these forms of discrimination are so prevalent in the American workplace and are the most common types of discrimination alleged in discrimination complaints to the EEOC¹³ and in lawsuits alleging discrimination.¹⁴ I use the term minorities to refer to men and women who are members of underrepresented racial and ethnic groups and the term women to refer to both women of color and white women. Although the phrase minorities and women is sometimes read to refer to minority men and white women, thus excluding women of color, I always mean to include women of color unless otherwise specified.

During its first fifty years, EEO law, along with social movement pressure and changing management practices, has sharply reduced overt discrimination, and there has been considerable improvement in the workforce status of minorities and women. Newspapers no longer run job ads for whites or males only, and minorities and women enjoy significantly greater representation in the workforce now than in the 1960s. Yet, as is revealed by the figures and the statistics cited below, substantial workplace inequality on the basis of race, sex, and other protected categories persists.

Figure 1.1 shows the employment-to-population ratio by race (blacks and whites only) and gender from 1972 to 2014.¹⁵ These data reveal a substantial reduction over time in overall inequality but also show that substantial differences still exist. Black females and males and white females continue to lag considerably behind white males in workforce participation. Most notably, while the gap between white and black males has remained relatively consistent over time, it is actually greater today than it was in 1972.

Figure 1.1. Employment-to-population ratio by race and gender, ages twenty and above, 1972 to 2014. Source: Data from the Bureau of Labor Statistics, Labor Force Statistics from the Current Population Survey, (Unadjusted) Employment-to-Population Ratio—20 Yrs. & Over, series IDs LNU02300028, LNU02300029, LNU02300031, LNU02300032.

In addition to being underrepresented in the workforce as a whole, women and minorities are underrepresented in high-level positions. Figures 1.2 and 1.3 show that women and minorities, respectively, have gained representation among officials and managers among private firms with 100 or more employees but still lag far behind men and whites. As with overall representation in the workforce, women have made greater gains toward men in obtaining high-level positions than have minorities toward nonminorities. Moreover, minorities are still disproportionately represented among laborers and service workers, and women are still disproportionately represented among office and clerical positions.¹⁶

Figure 1.2. Officials and managers in US private sector, women versus men—1966, 1983, 2002, 2006, 2008, 2010. Source: Data from Equal Employment Opportunity Commission, Job Patterns for Minorities and Women in Private Industry (based on EEO-1 reports).

Figure 1.3. Officials and managers in US private sector, minority versus nonminority— 1966, 1983, 2002, 2006, 2008, 2010. Source: Data from Equal Employment Opportunity Commission, Job Patterns for Minorities and Women in Private Industry (based on EEO-1 reports).

Among all firms, in 2014 African Americans made up 11.4 percent of the total workforce but only 6.7 percent of management positions, and Hispanics made up 16.1 percent of the total workforce but only 9.1 percent of management positions.¹⁷ Females made up 46.9 percent of the total workforce but only 38.6 percent of management positions.¹⁸ Wage gaps for both minorities and women remain, including at management levels. Relative to their white male counterparts, African American males earned 75.8 percent as much, Hispanic males earned 68.6 percent, African American females earned 68.1 percent, and Hispanic females earned 61.0 percent.¹⁹ Females earned 82.5 percent of what their male counterparts earned in 2014; and in management professions, females earned only 77.5 percent of what male managers earned.²⁰

Social scientists have documented systematic patterns of race and sex segregation in the labor market and within organizations.²¹ Women and minorities are disproportionately segregated into job categories with shorter mobility ladders, reduced access to job training, and fewer networking opportunities; are more likely to encounter glass ceilings; and generally receive lower pay than workers in job categories dominated by white men.²² In their book, Documenting Desegregation, Kevin Stainback and Donald Tomaskovic-Devey provided extensive documentation of sustained—and in recent years increasing—segregation on the basis of race and sex in the United States. They showed that from the mid-1960s until about 1980, segregation on the basis of race and sex declined. From 1960 to 1972, black men in particular saw marked improvement in their workforce position. From 1972 to 1980, both white and black women made substantial gains as well. The workforce position of white women continued to improve through about the year 2000, but progress for both black men and black women slowed after 1980.²³

Beyond the statistics, scholars have identified continuing forms of discrimination that are less easily measured but nonetheless hinder the employment prospects of white women, minority men, and especially minority women. Employers’ reliance on social networks to find new employees tends to exacerbate segregation by encouraging women to go into traditionally female job categories and minorities to go into job categories with less potential for upward mobility.²⁴ Seniority rules, transfer policies, and job-posting practices tend to preserve the segregation that occurs at the entry level.²⁵ Tokenism, or small numbers of women or minorities in a workplace, hinders success by increasing harassment, causing stress, creating performance pressures, and barring men and women of color and white women from social networks that provide critical communication, connections, and mentoring. Coworker harassment discourages the types of participation and respect necessary for leadership positions and thus reinforces glass ceilings.²⁶

Organizational scholars also find discrimination and inequality on the basis of race and sex as a result of work cultures;²⁷ stereotypical beliefs about and cultural evaluation of skills and aptitudes;²⁸ harassment;²⁹ and subjective decision-making processes that favor whites and males when assessing leadership skills, creativity, ability to make sound judgments, and other critical attributes.³⁰ A related literature in social psychology on implicit biases shows how people tend to associate minorities more often than whites with negative characteristics³¹ in ways that are likely to encourage unconscious differential treatment in the workplace.³² Implicit bias affects memories, perceptions, attitudes, and stereotypes, without intent or conscious bias.³³ Biases also manifest at a more macro level, where scholars point to institutional racism—widespread understandings, practices, and stereotypes that put racial minorities at a disadvantage.³⁴ Even without conscious intent to discriminate, employers tend to understand whites as being more qualified and responsible, and as having greater leadership capacities.³⁵ Susan Sturm has labeled these more subtle cognitive barriers to advancement second generation discrimination.³⁶ For racial inequality in particular, forms of advantage and disadvantage tend to become institutionally locked in, allowing whites to build on the economic advantages gained through discrimination to maintain an unfair advantage.³⁷

Critical race scholars point to even more subtle forms of discrimination. In Acting White? Devon Carbado and Mitu Gulati suggested that minorities face pressures within organizations to act white by covering their identities.³⁸ They argued that to succeed, minorities must act and dress in a manner consistent with white expectations and disassociate themselves from their own minority groups. For example, a black woman may cover her identity by straightening her hair, an Asian by assuming a more American-sounding name, or a Latino by altering speech patterns to sound more like white peers. Discrimination is based not only on phenotype but also on performing whiteness, disadvantaging minorities who do not alter their language, dress, hairstyle, social networks, or affiliations to appear more culturally similar to whites. In a somewhat similar vein, women must walk a narrow line between appearing too feminine and not sufficiently feminine.³⁹

Employees who belong to multiple disadvantaged groups, such as black women, suffer forms of intersectional discrimination, which produce unique and more severe forms of disadvantage. For example, an employer might hire both white women and black men but refuse to hire black women because they are stereotyped as desperate single mothers or as welfare queens; because these stereotypes are specific to black women, they cannot be explained as the summed effects of racism and sexism. Black men, on the other hand, may be stereotyped as likely to resist authority and therefore difficult to manage, or as hypersexualized threats to white women. Employers hold discrete stereotypes for various intersectional categories.⁴⁰

Why have EEO laws not been more successful at reducing these structural, cultural, and cognitive forms of workplace bias? In this book, I suggest that an important reason for the limited success of Title VII of the 1964 Civil Rights Act and of EEO law more generally is that legal institutions, and in particular courts, defer to organizations’ symbolic structures—such as antidiscrimination and antiharassment policies, grievance procedures, and diversity programs—even when those structures are merely symbolic, that is, largely ineffective. EEO and diversity structures have become so common that they have been transformed in the public eye from means of achieving civil rights to indicators of civil rights compliance. In some ways, this change in how people understand symbolic structures makes sense: as Frank Dobbin wrote in Inventing Equal Opportunity,⁴¹ the creation of these organizational structures has helped to rationalize organizational governance and to mitigate some forms of racism and sexism. My account of EEO and diversity structures, however, differs substantially from those offered by Frank Dobbin,⁴² Charles Epp,⁴³ and John Skrentny.⁴⁴ Whereas these authors tend to treat organizations’ EEO, affirmative action, and diversity policies as evidence of progress in civil rights, I show that in many cases these structures represent little more than cosmetic compliance: they often coexist with discriminatory practices and cultures, and they transform our understanding of civil rights in ways that weaken the capacity of law to produce social change.

Judges defer to symbolic structures because the widespread acceptance of the idea that organizations’ antidiscrimination policies and procedures constitute nondiscrimination makes it difficult for them to discern workplace practices that deviate from or undermine those formal policies. If the presence of these policies always meant that organizations were following the law, then judicial reliance on organizations’ symbolic structures would not be a problem. But when judges infer nondiscrimination from the presence of policies that managers ignore, when they look at the presence of diversity training programs rather than whether organizations are in fact diverse, and when they infer fair and rational governance from personnel manuals that do not govern the daily lives of organizations, then the law tends to condone practices that deviate from legal ideals. Judicial deference to symbolic structures, then, helps to explain the puzzle of civil rights in the twenty-first century: Why, a half century after the passage of Title VII of the Civil Rights Act, does substantial discrimination and inequality persist?

Legal Endogeneity Theory

Judicial deference to organizations’ symbolic structures evolves because of a broader phenomenon that I call legal endogeneity, a process through which the meaning of law is shaped by widely accepted ideas within the social arena that law seeks to regulate.⁴⁵ This book develops legal endogeneity theory both as a means of explaining the limited success of EEO law in the United States and as a general theory of the interplay between work organizations and their legal environments. By work organizations, I refer to private businesses, government agencies, schools, and other workplaces. Although I focus on corporations and other private business organizations, the theory pertains to work organizations in general.

Legal endogeneity theory posits that organizations respond to ambiguous law by creating a variety of policies and programs designed to symbolize attention to law. As these policies and programs become commonplace in organizations, employers and employees alike tend to equate the mere presence of these structures with legal compliance and become less aware of whether the structures actually promote legal ideals. Eventually the ideals underlying law become so closely associated with the organizational structures that legal actors, as well as organizational actors, understand compliance in terms of the presence or absence of these structures and thus fail to scrutinize their effectiveness. Legal endogeneity theory suggests that the meaning of law evolves through the articulation and resolution of problems not in the halls of Congress but rather in the halls of work organizations.

Legal endogeneity theory challenges the standard view of law as exogenously created, or determined outside the boundaries of organizations. In the standard exogenous view, law is a downward force that is primarily coercive and determinative. Congress issues mandates and organizations respond to those mandates, either by complying or risking sanctions for noncompliance. Organizations may, of course, respond with varying degrees of enthusiasm or resistance, but they are essentially reacting to law rather than determining its meaning.

Legal endogeneity theory, by contrast, sees law, at least in part, as an upward force. Legislatures, administrative agencies, and courts tend to incorporate and condone ideas about law and compliance that become common and widely accepted within organizations. Thus the meaning of law evolves over time in a way that is fundamentally influenced by the institutions that law is meant to regulate. As work organizations increasingly create EEO rules, programs, and offices, those structures become widely accepted forms of compliance with EEO law. The result is that courts tend to assume, as did the Supreme Court in Wal-Mart, that organizations that have policies banning discrimination do not systemically engage in discrimination.

Legal endogeneity theory is not the first approach that posits an upward flow of ideas from society to law. Much classic research examining the interaction between law and society locates the origins of law in social norms and social action.⁴⁶ Political scientists have identified mechanisms such as lobbying, negotiation, and regulatory capture as important ways through which organizations influence law and regulators.⁴⁷ But this book identifies, theorizes, and empirically demonstrates a subtler path of influence that has received little attention in the academic literature and virtually none within the legal community: courts and lawyers (often unwittingly) accept ideas about compliance and rational governance that evolve within regulated organizations.

This book offers a systematic account of how law becomes endogenous, tracing EEO law from its ambiguous statutory origins through its entry into organizational life and examining its transformation within organizations, the development of a managerialized legal consciousness, the framing of legal arguments by lawyers representing both management and employees, and, ultimately, judicial deference to organizational constructions of law. By specifying the mechanisms through which law becomes endogenous, this book offers a comprehensive theory of the interplay of law and organizations and a novel explanation for why social reform laws are limited in their capacity to produce social change.

Legal Endogeneity and the Puzzle of Social Reform Laws

Sociolegal scholars have long noted that social reform laws have only limited impact on social change, and they have discovered a number of factors that generally cause the ‘haves’ [to] come out ahead.⁴⁸ Empirical studies have shown that legal rights are difficult to mobilize (make use of), disproportionately so for those without social power or economic resources;⁴⁹ the legal profession is highly stratified in ways that tend to benefit corporations, parties who repeatedly use the legal system, and litigants with greater education and economic wealth;⁵⁰ the poor in particular have limited access to lawyers and law;⁵¹ laws themselves tend to further the interests of those who enjoy social, political, and economic power;⁵² and legal ideology tends to legitimate the power of the status quo.⁵³

Legal endogeneity theory reveals a new obstacle that limits the potential of social reform laws, particularly in the context of laws that seek to regulate organizations: judicial deference to symbolic structures that appear to advance the rights of the have nots but frequently fail to do so. Social reform laws tend to be ambiguous, and legal ambiguity leaves organizations wide latitude to construct the meaning of law and compliance with law. Largely for political reasons, it is common for legislators to agree on law written in broad brushstrokes as a means of resolving basic differences of opinion over what the law should protect and how stringent its measures should be. Civil rights legislation is ambiguous in that it mandates nondiscrimination without specifying what organizational actions constitute discrimination.

Legal ambiguity gives organizations broad latitude to construct the meaning of compliance on a daily basis. Given legal ambiguity, compliance professionals within and around organizations—various consultants, lawyers, human resource professionals, and compliance officers who have responsibility for interpreting law and managing compliance—must figure out, in the context of daily events, conflicts, and organizational operations, what it means not to discriminate on the basis of race or sex, to ensure workplace safety, to accommodate religion and disability, and the like. Compliance professionals tend to encourage organizations to respond to ambiguous laws by creating symbolic structures like antidiscrimination policies that symbolize attention to law, or sometimes by creating general bureaucratic structures like progressive discipline policies or formal evaluation procedures, which tend to symbolize rational governance.

Symbolic structures are double-edged. On one hand, they provide a vehicle through which legal values enter the workplace and, over time, alter practices that violate the law. On the other hand, they can mask informal practices that deviate from legal ideals. As organizational scholars have recognized for years,