The Role of Law and Myth in Creating a Workplace that \u27Looks Like America\u27

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection. This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This Article builds upon that theory by arguing that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: (1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; (2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and (3) new social science research discussing which DEI efforts are most likely to succeed and those most likely to prompt backlash. To facilitate evidence-based EEO compliance, this Article advocates changes in liability standards. It also recommends the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the Article urges lawyers to more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias-free U.S. workplaces

The Implications of Psychological Research Related to Unconscious Discrimination and Implicit Bias in Proving Intentional Discrimination

Building on the psychological research and publications indicating that much discrimination is unconscious and the result of implicit bias, this Article addresses the utility of laws that prohibit intentional discrimination in addressing this recently understood form of discrimination. More specifically, does unconscious discrimination violate a statute that prohibits intentional discrimination? The Article argues that the answer is yes.Unconscious discrimination is the result of stereotyping or categorization, a cognitive mechanism used by most people to simplify the task of perceiving, processing and retaining information about people. Absent a special effort to overcome this cognitive mechanism in making decisions about people, such decisions are frequently made on the basis of the category into which the decisionmaker places the person, rather than an individualized assessment. When a decisionmaker chooses to base decisions on the category into which an individual falls, rather than an individual assessment, the decisionmaker has made an intentional choice. Thus, the argument advanced here is that the intentional decision to discriminate is made when a decisionmaker chooses to use categories rather than an individual assessment, not at the precise point where a specific decision is made. Therefore, while a specific decision to hire or fire may not be the result of intentional discrimination at the point where the decision is made, it is, nevertheless, the product of intentional discrimination because at some point the decisionmaker decided to base decisions on categories rather than an individual assessment.The Article also discusses the common proof schemes for disparate treatment claims, including the direct method, the indirect method (McDonnell-Douglas) and mixed-motive. When the direct method is properly understood to include circumstantial evidence, it becomes the dominant method of establishing intentional discrimination. The key to proving intentional discrimination is showing that the decisionmaker engages in stereotyping and a likely way to establish this is through comments made by the decisionmaker, not necessarily in the context of the challenged decision. Once it is established that the decisionmaker engages in stereotyping and has a negative view of persons in the challenger\u27s protected group, the burden of persuasion should shift to the one whose decision is being challenged to establish an affirmative defense. What constitutes an affirmative defense, and the effect of such a defense, is explained in the Article.Understanding how discrimination works, will help guide organizations that want to eliminate all discrimination, including unconscious discrimination. Once discrimination is better understood, preventive measures can be tailored to addressing the problem

Held Back: Addressing Misplacement of 9th Grade Students in Bay Area School Math Classes

While districts regularly make placement decisions regarding all core subjects (math, English, science, social studies), one area is most significant: math. Most universities (including California State and University of California) require at least three years of math for college eligibility, and they prefer students who have taken highlevel math courses such as Calculus or AP Statistics. However, such high-level math courses are generally only available to students who begin high school in Geometry. Ninth grade math placement can therefore not only have far-reaching impacts on a student's confidence, general knowledge of mathematical concepts, and high school experience -- more importantly, it can impact the college and life opportunities available to that student. This report is intended to call attention to the math misplacement issue; to educate districts, community members, and parents about the potential liability associated with such placement decisions; and to encourage districts to take relatively simple steps to remedy the problem of math misplacement. Part I of this report explores the problem of math misplacement in greater detail and reviews the publicly available data regarding 9th graders' math class placement in school districts in San Mateo and Santa Clara counties. Part II explains the disparate impact doctrine and demonstrates why a district that engages in math misplacement, even if unintentionally, puts itself at legal risk. Part III explores other possible bases of legal liability. Finally, Part IV presents practical solutions to the problem of math misplacement and provides recommendations for school districts, community advocates, and lawyers to follow to remedy this critical civil rights issue

The Political Economy of the Research Exemption in American Patent Law

This Article approaches the research exemption, and related legal developments, as a case study in the political economy of patent law. Part I recounts the history of the research exemption, touching briefly on historical origins but emphasizing developments since the 1970s in legislative, executive, and judicial forums. It also examines changes during the same time frame in related areas of patent law, like the Bayh-Dole legislation and the attempted repeal of state immunity from patent infringement liability. These legal developments indirectly affected the research exemption, or implicated similar concerns about imbalance in the patent system and the use of patents to tax, control, or inhibit research activity. Part II analyzes this history to illustrate and expand upon two major themes in the political economy of patent law, namely the surprising persistence of faulty economic ideology in patent policymaking and the institutional bias exhibited by the Court of Appeals for the Federal Circuit in shaping modern patent law. One major conclusion is that together these forces have created an excessively complex and ill-designed policy environment that is placing a significant strain on the national research system, a strain that executive agencies and the courts have tried to alleviate through ad hoc agreements and modifications of other patent doctrines, like the doctrine of subject matter eligibility

The Political Economy of the Research Exemption in American Patent Law

This Article approaches the research exemption, and related legal developments, as a case study in the political economy of patent law. Part I recounts the history of the research exemption, touching briefly on historical origins but emphasizing developments since the 1970s in legislative, executive, and judicial forums. It also examines changes during the same time frame in related areas of patent law, like the Bayh-Dole legislation and the attempted repeal of state immunity from patent infringement liability. These legal developments indirectly affected the research exemption, or implicated similar concerns about imbalance in the patent system and the use of patents to tax, control, or inhibit research activity. Part II analyzes this history to illustrate and expand upon two major themes in the political economy of patent law, namely the surprising persistence of faulty economic ideology in patent policymaking and the institutional bias exhibited by the Court of Appeals for the Federal Circuit in shaping modern patent law. One major conclusion is that together these forces have created an excessively complex and ill-designed policy environment that is placing a significant strain on the national research system, a strain that executive agencies and the courts have tried to alleviate through ad hoc agreements and modifications of other patent doctrines, like the doctrine of subject matter eligibility

Organizationally Sensible vs. Legal-Centric Approaches to Employment Decisions With Legal Implications

This article is intended to: 1) alert human resource (HR) professionals to the risk that they, and the managers they serve, are unnecessarily contributing to the impact of legal considerations on the management of employees as a result of “legal-centric decision making”; and 2) provide information and guidance that will assist HR professionals in promoting better informed, more organizationally sensible responses to employment issues that have potential legal implications. The “legal-centric decision making” construct is introduced and illustrated, a model of the primary factors contributing to legal-centric decision making is presented, and keys to avoiding legal-centric decision making are identified and discussed

Environmental Law and Public Policy

This chapter provides an economic perspective of environmental law and policy with regard to both normative and positive dimensions. It begins with an examination of the central problem in environmental regulation: the tendency of pollution generators in an unconstrained market economy to externalize some of the costs of their production, leading to an inefficiently large amount of pollution. We examine the ends of environmental policy, that is, the setting of goals and targets, beginning with normative issues, notably the Kaldor-Hicks criterion and the related method of assessment known as benefit-cost analysis. We examine this analytical method in detail, including its theoretical foundations and empirical methods of estimation of compliance costs and environmental benefits. We include a review of critiques of benefit-cost analysis, briefly examine alternative approaches to analyzing the goals of environmental policies, and survey the efforts of the Federal governmental to employ these analytical methods. The chapter also examines in detail the means of environmental policy, that is, the choice of specific policy instruments, beginning with an examination of potential criteria for assessing alternative instruments, with particular focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional, commandand- control mechanisms, economic incentive or market-based instruments, and liability rules. In the economic-incentive category, we consider pollution charges, tradeable permit systems, market friction reductions, and government subsidy reductions. Three cross-cutting issues receive attention: implications of uncertainty for instrument choice; effects of instrument choice on technological change; and distributional considerations. We identify a set of normative lessons in regard to design, implementation, and the identification of new applications, and we examine positive issues, including three phenomena: the historical dominance of command-and-control; the prevalence in new proposals of tradeable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments. Finally, the chapter turns to the question of how environmental responsibility is and should be allocated among the various levels of government. We provide a positive review of the responsibilities of Federal, state, and local levels of government in the environmental realm, plus a normative assessment of this allocation of regulatory responsibility. We focus on three arguments that have been made for Federal environmental regulation: competition among political jurisdictions and the race to the bottom; transboundary environmental problems; and public choice and systematic bias.environmental economics, environmental law, efficiency, cost-effectiveness, benefitcost analysis, environmental federalism

Calibration of Stated Willingness to Pay for Public Goods with Voting and Tax Liability Data: Provision of Landscape Amenities in Switzerland

Controversy remains over the degree of hypothetical bias in contingent valutation method (CVM) estimates of values for public goods, especially for public goods with significant passive-use values. This paper uses an 'indifferent voter' approach to calibrate stated WTP for a proposed public good increase with actual WTP implied by voting and tax liability data. Our data are from a CVM survey and an actual voting decision on propositions to increase public funds for landscape amenities protection in the canton of Zurich, Switzerland.contingent valuation; indifferent voter; median voter theorem; referendum;valuation

Environmental Law and Policy

This chapter provides an economic perspective of environmental law and policy with regard to both normative and positive dimensions. It begins with an examination of the central problem in environmental regulation: the tendency of pollution generators in an unconstrained market economy to externalize some of the costs of their production, leading to an inefficiently large amount of pollution. We examine the ends of environmental policy, that is, the setting of goals and targets, beginning with normative issues, notably the Kaldor-Hicks criterion and the related method of assessment known as benefit-cost analysis. We examine this analytical method in detail, including its theoretical foundations and empirical methods of estimation of compliance costs and environmental benefits. We include a review of critiques of benefit-cost analysis, briefly examine alternative approaches to analyzing the goals of environmental policies, and survey the efforts of the Federal governmental to employ these analytical methods. The chapter also examines in detail the means of environmental policy, that is, the choice of specific policy instruments, beginning with an examination of potential criteria for assessing alternative instruments, with particular focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional, command-and-control mechanisms, economic incentive or market-based instruments, and liability rules. In the economic-incentive category, we consider pollution charges, tradeable permit systems, market friction reductions, and government subsidy reductions. Three cross-cutting issues receive attention: implications of uncertainty for instrument choice; effects of instrument choice on technological change; and distributional considerations. We identify a set of normative lessons in regard to design, implementation, and the identification of new applications, and we examine positive issues, including three phenomena: the historical dominance of command-and-control; the prevalence in new proposals of tradeable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments. Finally, the chapter turns to the question of how environmental responsibility is and should be allocated among the various levels of government. We provide a positive review of the responsibilities of Federal, state, and local levels of government in the environmental realm, plus a normative assessment of this allocation of regulatory responsibility. We focus on three arguments that have been made for Federal environmental regulation: competition among political jurisdictions and the race to the bottom; transboundary environmental problems; and public choice and systematic bias.