In the vast majority of employment civil rights cases, law leaves untouched the hierarchies and the alleged injustices that gave rise to employment civil rights litigation in the first place. Regardless, because satisfaction with outcome doesn’t necessarily equate to winning, there’s difficulty in defining what’s a win or a loss according to Rights on Trial:
Plaintiffs often get little or nothing of value — and suffer. Lawsuits can take a toll on plaintiffs: loss of their jobs (including structure and meaning) and identities, financial insecurity (including bankruptcy), toll on families (including divorce), mistrust, alcoholism and drug abuse, depression, and doctor bills — even if they win the case. Many plaintiffs simply want to be reinstated in their jobs, not large sum of money nor a verdict of guilt for the employer by the court. Other times, small settlements satisfy plaintiffs because plaintiffs have a chance to tell their stories. Winning might...
Instead, it preserves managerial authority, dominated by white men, and reproduces hierarchies by focusing on individual harm — rather than disrupts hierarchies.
Are civil rights truly rights if we have to pay to get them through the legal system? Does law disrupt social hierarchies or perpetuate them? Authors Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen dig for the answers to these crucial questions in Rights on Trial.
Their finding: employers, agencies, and courts often re-inscribe the very hierarchies discrimination law was designed to attack, making discrimination both an intentional and structural problem. Civil rights law doesn’t actually affect social change by correcting discriminatory behavior at work because it upholds the bias through stereotypes that created the discrimination in the first place.
Here’s the reality about use of and access to justice:
Most targets don’t involve the legal system. Only a tiny fraction of targets approach...
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