Wednesday, January 9, 2013

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?

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Since I've been doing this for too many years to mention, you'd think I could answer the question, but no such luck. Maybe because "successful" is such a difficult word. Certainly, the course has been successful as teaching a legal area, and sort of successful in what we used to call "consciousness raising." That is students (a lot, maybe most) come out of the course with a sense that there are still serious problems and that life is a lot more complicated than they thought when they first opened the book. What we're mostly successful in doing is persuading students that it's not just a few bad people who do bad things, that "discrimination" can occur in all sorts of settings.

But we achieve that at a real cost, mostly by persuading the students that discrimination itself isn't as bad as they thought. In other words, if good people discriminate -- maybe in a disparate impact sense, maybe in an implicit attitude sense, maybe just because it sometimes furthers rational business interests -- then the phenomenon is troubling but not necessarly to be condemned.

Posted by: Charlie | Jan 11, 2013 6:09:58 AM

That's an interesting take Charlie. I teach Disability Law, where I'm quite sure that at least some students must have the experience you describe (expanded perception of what discrimination can be, lesser perception of it as necessarily invidious in all its forms). But mostly that comes about I think simply through my teaching the cases (and their underlying facts and law) and our coverage of the theory of discrimination behind reasonable accommodations.

What's less clear to me (and what remains so) is whether there's value to having a more explicit discussion (perhaps of some of the social science research on continuing rates of disparate treatment, or perhaps the research on implicit bias, although I think that area is probably the most at risk for the phenomenon you describe). Do you treat the issue separately? Just as woven into the law discussion/ cases you would otherwise teach?

Posted by: Katie | Jan 11, 2013 11:33:58 AM

On my first day of Employment Discrimination class, I start by asking: what is race? what is sex? what is disability? what is discrimination? why is some discrimination wrong and other discrimination ok?

This is a great way to set the tone for the entire semester. The discussion of "what is race" easily lasts 15-20 minutes, as students realize that something they thought was simple really isn't, and they start to understand the social construction of a concept they before had taken for granted.

the discussion also helps establish that when dealing with these subjects, there often are no clear right/wrong answers, and our answers may well depend on our own backgrounds and baseline assumptions.

This is always my favorite class in my favorite course.

Posted by: Rick Bales | Jan 12, 2013 7:10:47 AM

Thanks Rick -- that sounds like a great way to at least introduce students to the notion that they may indeed have preconceptions about the subject, and in a way in which their own discussion will do most of the work. I would imagine that probably that is a more effective way of getting buy-in than some of the other alternatives I had thought of.

Posted by: Katie | Jan 14, 2013 11:28:15 AM

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