Media Releases

New book by UTM prof reveals flaws of workplace discrimination law

July 12, 2017

Toron­to, ON – A new book by U of T Mis­sis­sauga assis­tant pro­fes­sor of soci­ol­o­gy Ellen Berrey explores the legal out­comes of the most com­mon type of civ­il lit­i­ga­tion in the Unit­ed States—employment dis­crim­i­na­tion claims—and the lim­i­ta­tions of the law in address­ing prob­lems of work­place inequal­i­ty.

In Rights on Tri­al: How Work­place Dis­crim­i­na­tion Law Per­pet­u­ates Inequal­i­ty, Amer­i­can Bar Asso­ci­a­tion schol­ars and co-authors Ellen Berrey, Robert L. Nel­son and Lau­ra Beth Nielsen pro­vide a com­pre­hen­sive analy­sis of employ­ment civ­il rights lit­i­ga­tion in the U.S., and give voice to real plain­tiffs in their pur­suit of jus­tice and defense of their fun­da­men­tal civ­il rights.

“Civ­il rights law is enforced through lit­i­ga­tion, and it is the pri­ma­ry option avail­able for employ­ees who believe they have been the tar­get of dis­crim­i­na­tion,” Berrey says. “We want­ed to know how well the process is serv­ing the par­tic­i­pants, includ­ing employ­ees, man­age­ment and attor­neys.”

The researchers exam­ined more than 1,700 ran­dom­ly sam­pled cas­es filed in fed­er­al courts between 1988 and 2003, and con­duct­ed inter­views with 100 indi­vid­u­als involved in cas­es, includ­ing plain­tiffs’ attor­neys, employ­er defen­dants and defense attor­neys. The research con­sid­ered rea­sons for dis­crim­i­na­tion claims and out­comes of the cas­es. “It’s the only study of its kind, at this scale, that pro­vides both qual­i­ta­tive and quan­ti­ta­tive data about how well the sys­tem of employ­ment civ­il rights lit­i­ga­tion works,” Berrey says.

The num­bers are telling. “More than 93 per cent of fed­er­al cas­es are filed by sin­gle indi­vid­u­als who often have no legal expe­ri­ence,” Berrey says. The most com­mon claims are based on per­ceived dis­crim­i­na­tion relat­ed to race, sex, age and dis­abil­i­ty. About 50 per cent of cas­es set­tle ear­ly in the process. Just six per cent of cas­es filed in fed­er­al court go to tri­al, and only a third of those—or, a tiny two per cent of cas­es filed in fed­er­al court—result in any kind of win for the plain­tiff.

“Ear­ly set­tle­ments tend to be not a lot of mon­ey, aver­ag­ing about $30,000, which means that there are a lot of set­tle­ments that are in the $5,000 to $10,000 range. That’s not enough to off­set the legal costs, lost income, and the psy­cho­log­i­cal toll that being a tar­get of dis­crim­i­na­tion and then going through lit­i­ga­tion can cause,” Berrey says. “The process puts an incred­i­ble bur­den on indi­vid­ual employ­ees, who are respon­si­ble for ini­ti­at­ing law­suits. Yet we depend on them to ensure that work­place civ­il rights are being enforced.”

“We found that in many dif­fer­ent ways civ­il rights law func­tions to repro­duce the very inequal­i­ties it is sup­posed to be address­ing,” Berrey says. “Set­tle­ments insu­late the employ­er from hav­ing to make sys­tem­at­ic change. They don’t have to admit any wrong­do­ing, or guar­an­tee to the pub­lic to change any­thing about their work­place. This is the pri­ma­ry way that cas­es are being resolved, but it doesn’t mean that any­thing is being done to solve the prob­lems.”

“It is impor­tant to under­stand this unfair expec­ta­tion put on indi­vid­u­als who believe they’ve been tar­get­ed. We rely on them to car­ry the weight of enforc­ing civ­il rights. Hear­ing their voic­es, you under­stand the lived con­se­quences of every­day dis­crim­i­na­tion and the deep flaws with the way we try to address it through lit­i­ga­tion.”

“By bring­ing togeth­er quan­ti­ta­tive fig­ures with first-hand expe­ri­ences from those who par­tic­i­pate in the process, we pro­vide a holis­tic view of work­place dis­crim­i­na­tion law in action,” Berrey says. “Despite the dis­cour­ag­ing evi­dence, our find­ings pro­vide inspi­ra­tion that we can do bet­ter. Reforms could include increas­ing dam­ages for plain­tiffs, to cre­ate more incen­tive for attor­neys to take dis­crim­i­na­tion cas­es, and a more aggres­sive role for the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion, the U.S. gov­ern­ment agency that over­sees these cas­es. The task of mak­ing work­places more fair and more equal isn’t yet done.”

For more infor­ma­tion about Rights on Tri­al and to hear audio record­ings of the indi­vid­u­als inter­viewed, please vis­it rightsontrial.com. For more infor­ma­tion on Berrey’s research, please vis­it ellenberrey.com.