Barking Up the Wrong Tree: The Antidiscrimination Project and Public Perceptions

Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, __ Minn. L. Rev. __ (forthcoming 2011), available at SSRN.

One might question the wisdom of a young, not-yet-on-the-market, scholar basically arguing that most of us in her field—including me—have been wrong in important ways. But wise or not, Katie Eyer’s article, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law (forthcoming in the Minnesota Law Review) is a remarkable piece of research and exposition. She has an ability to deal with complicated issues in a lucid and spritely prose style. I almost enjoyed being informed how wrong I was!

Katie’s a Research Scholar at Penn and her piece starts with the conventional wisdom of 21st century employment discrimination law: there’s a lot of bias out there, maybe mostly of the unconscious type, but, in any event, pretty pervasive. While scholars like myself have proposed ways to deal with this reality insofar as federal judges are concerned, Katie suggests a deeper problem: “most people in most factual circumstances are unwilling to make robust attributions to discrimination.”

The implications of this should be obvious, but haven’t been: even if various academic schemes successfully dodged the Scylla of judicial gatekeepers, plaintiffs would still run afoul of the Charybdis of juries being resistant to inferring discrimination – “[E]ven when there is substantial evidence of traditional invidious discriminatory intent (including so-called “direct evidence”), most people will decline to make attributions of discrimination.” In fact, the author finds judicial and lay attitudes remarkably similar as regards the likelihood of discrimination.

If true, this reality would certainly put pain to efforts to deal with cognitive bias or discriminatory workplace cultures, at least efforts that rely on traditional litigation for vindication. Not only are such efforts not likely to do any good but they may do harm “by further expanding the capaciousness of discrimination doctrine” and thus widening the chasm between it and popular perceptions.

And Katie makes a persuasive case. Although others have observed the increasingly reluctance of society to believe that remaining inequalities are the result of intentional discrimination, That’s Not Discrimination undertakes an in-depth discussion of the psychological literature. That research shows that both minorities and the majority are unwilling to attribute negative outcomes to discrimination. For example, she cites a study in which mock jurors were presented evidence of discrimination that plaintiffs’ attorneys would salivate over (including plaintiff’s boss saying that “women should only be in subservient positions” and that he wanted to replace women with men). Almost half the “jurors” nevertheless found against the plaintiff. Other studies show that subjects themselves attribute their failures to discrimination far less often than the evidence presented to them would seem to support.

The article explores possible reasons for this phenomenon, including the cognitive dissonance that would result from discrimination existing in nation widely thought to be a meritocracy. But I can’t do justice to her analysis in this short review, so I won’t try.

However, I do want to highlight her central normative argument. She concludes her descriptive discussion by arguing that “crediting the findings of psychology scholars, both of the most commonly suggested types of reform seem likely to have significant limitations as mechanisms for meaningfully improving outcomes for discrimination litigants.” I think this is euphemistic way of saying many of us are barking up the wrong tree.

So what’s the right tree?  It’s here (as is often the case) that her critique flags. She argues for greater resort to “extra-discrimination remedies.”  No, that doesn’t mean even more discrimination. It means looking to “virtually any remedy for group-based inequality that are not founded in discrimination claims,” such as anti-poverty initiatives and just cause legislation. She then provides a laundry list of other examples, including the FMLA, school-based antibullying legislation, and common law claims. She believes that, while such situations would logically seem to also conflict with deeply-held notions of America as a meritocracy, such claims are not viewed as being as far-fetched as discrimination claims, which trigger “uniquely hostile responses.”

She does anticipate one objection to de-racing and de-sexing discrimination laws: “Most individuals who are deeply invested in the antidiscrimination enterprise  . . . care about discrimination because it is discrimination.”  But with a certain heartlessness she responds that it’s not like you guys are winning a lot of victories under the current regime.

It’s hard to disagree with either Katie’s observation or her rebuttal of the likely response, but I have another reservation: I’m not so sure that employee-leaning scholars and practitioners are doing so well in employment law read broadly. Actually just the opposite.

I hope the somewhat breezy tone of this review doesn’t suggest that I am not a very big fan of this article.  I am. Whether or not I agree with Katie, That’s Not Discrimination is a thought-provoking piece well worth a read. I anticipate that Katie will be an important, and welcome, new voice in the academy’s employment precincts.