Teaching Discrimination

Thank you for the warm welcome Charlie! I am delighted to be joining the Workplace Prof Blog as a Guest Blogger – I have long been a reader and admirer (since my non-Proffy days as a litigator), so it is a particular pleasure to join the (temporary) ranks. During my stint here as a guest blogger I am hoping to do a series of posts about recent developments in LGBT employment law as well as some of my recent mental meanderings about psychological research on perceptions of discrimination.

Starting off with the latter, much of my recent work (see here and here) has been informed by the body of psychological research on how and why people perceive particular events as discrimination. What that research tends to show is that most people are reluctant to characterize all but the most extreme and explicit fact patterns as discrimination, that these tendencies are causally related to certain common American background beliefs (discrimination is rare, hard work gets you ahead in life, discrimination is an explicit and narrow phenomenon), and that these background beliefs are remarkably resistant to change.

As I have moved this fall into the world of tenure-track teaching, this research has weighed in the back of my mind in trying to think through my role as a teacher. As a teacher of discrimination law, should I teach about “discrimination”? Does it make a difference whether it is in a standard doctrinal class vs. a seminar? (I.e., a “Discrimination Law” class, rather than a “Discrimination and the Law” class?). If it is appropriate to teach this subject in a law class, how is it best done?

My initial instinct was a “yes” – To the extent (as I have no doubt is true) there are students entering my class who fundamentally believe discrimination is an aberrant or historical phenomenon, it troubles me to think that such students might go out into practice without a richer understanding of the contemporary landscape. Ample evidence abounds (both rigorous social science and anecdotal evidence) that discrimination is far from a phenomenon of the past. Nor is all discrimination today simply of the “structural” or “subtle” variety (although there is no doubt also much of that). It seems a disservice to students, both those who will do defense and plaintiff-side work, to leave open the possibility that they are educated in the law but lack an understanding of what they will go out and apply the law to.

[Note here I am not suggesting that all discrimination lawsuits are somehow meritorious or that students should be taught to view them as such, but rather about the background knowledge that discrimination – including old fashioned bias – continues to exist].

But when I think of concrete ways to bring this into my classroom, I am reminded of the many conversations I have had about this issue both professionally and personally over the years. Those who already believed that discrimination remains robust, believed – and those who didn’t, didn’t. Whether discrimination exists is not simply a neutral factual issue open for academic discussion; it is a powerful belief that people (on both sides) take as an article of faith. I therefore worry that “teaching” discrimination might achieve little, while perhaps having real costs.

So what are your experiences teaching “discrimination” in a law class? Have you done it? How? Did you feel it was successful?