Tuesday, March 8, 2011

Eyer on That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law

Pennlaw Katie R. Eyer (Penn, Alice Paul Center for Research on Women, Gender and Sexuality) has posted on SSRN her forthcoming piece in the Minnesota Law Review: That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law.

Here is the abstract:

Empirical studies have shown that discrimination litigants face difficult odds. Indeed, less than 5% of all discrimination plaintiffs achieve any form of litigated relief. These odds are far worse than those faced by virtually any other category of federal litigants and extend to every conceivable procedural juncture, from motions to dismiss, to post-verdict appeals. So what explains these results?

Surprisingly, there have been few robust attempts to answer this core question. Thus, while we have extensive data demonstrating that discrimination litigants fare poorly in the courts, we know little about why. This Article – drawing on a heretofore unexplored area of the psychological literature (regarding how and why people make attributions to discrimination) – attempts to fill this gap by developing a theoretical framework for understanding the difficulties that discrimination litigants face.

What this framework (and the underlying psychological literature) suggests is that the difficulties that discrimination litigants face are likely to be deeply intractable. Indeed, it appears that the difficulties that discrimination litigants face are founded in fundamental American background beliefs regarding meritocracy and discrimination; beliefs that are widely shared and generally impervious to change.

These findings have profound implications for contemporary recommendations for anti-discrimination reform. Most notably, they suggest a need to look for alternatives that will be less susceptible to the negative effects of American background beliefs, including alternatives that may be outside the scope of traditional anti-discrimination law (for example, just cause claims or FMLA-style laws). This Article thus concludes by providing a preliminary discussion of the potential benefits and drawbacks of such “extra-discrimination remedies.”

This is a very interesting paper for anyone, like myself, who believes that psychological insights are the key to understanding how certain types of labor and employment law claims fair in United State courts. I also very much like the effort to consider ways of counteracting the underlying psychology of the situation.



Employment Discrimination, Scholarship | Permalink

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One other area to look at is how many potential claims don't even reach the courts, or even the EEOC, because the employer pays off many of the more meritorious claims through generous severance/exit packages. This in itself is a common form of relief, although not a litigated one and one that is difficult to measure.

Posted by: Yammons | Mar 8, 2011 7:38:41 AM

This paper strikes me as very useful research. But I have the feeling that a lot of people claiming discrimination would be happy to take their chances with the American public - as reflected in jury decisions - if they could only get past the judiciary at the motion to dismiss and summary judgment phases. Judges appear to have their own subcultures of belief, influenced, I think, by docket pressures and their own limited experience.

Posted by: Mark Weber | Mar 9, 2011 9:35:57 AM

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