Plaintiffs, courts, and employers tend to not see discrimination as a systemic problem, say the authors of Rights on Trial. Courts and employers tend to address discrimination individually. The result: a general commitment to the ideals of civil rights while delegitimizing workers claims and blaming victims — with a diluting of law, undermining of rights, and reproduction of hierarchy. Discrimination law is not intended to disrupt the authority of the managers in running the employer organization, which are overwhelmingly managed by the traditionally advantage social group in American society: white men.
Frivolous claims are a myth. While implicit bias is the more common form of discrimination, most instances of reported discrimination were not subtle. Still, the vast majority of potential grievants do not file with the EEOC or in federal court. “Only one in 100 potential African-American grievants filed a charge with the EEOC, and 13 in 10,000 potential African-American...
Employers deny discrimination, assert managerial prerogatives, individualize problems, and denigrate plaintiffs. They offer small monetary awards, isolate disputes from the workplace by refusing to reinstate employees, and require that plaintiffs sign confidentiality agreements with settlements. Courts legitimize these practices, ignoring the asymmetry of power in the workplace and in litigation.
And workplace abuse is too often aimed at those who are off the norm of white, heterosexual, Christian, cisgender male.
Employers, lawyers, and courts fail to challenge — and even reinforce — hierarchies through stereotypes, say the authors of Rights on Trial. Stereotypes fuel discrimination against those who have been negatively stereotyped in favor of those who are positively typed. They’re cultural constructs about social reality used to justify asymmetrical social relations. They influence whether people get jobs, advance, support themselves financially, and achieve...
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