A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong

A structural approach to employment discrimination law seeks to impose an obligation on employers not to facilitate discriminatory decisionmaking in the workplace. Scholars across disciplines agree that a structural approach is a crucial element of an effective antidiscrimination law. Existing law fails to account for the ways in which bias manifests subtly in day-to-day workplace decisionmaking, or for the influence of organizational context on that decisionmaking. But the future of a structural approach depends, in part, on its normative foundation. Without sufficient normative underpinning, a structural approach is unlikely to gain traction in the public or in the courts. In this Article, Professor Tristin Green makes the normative case for a structural approach. She argues that a structural approach sits within the core of employment discrimination law, imposing costs on employers for their own wrongs against individuals in the workplace. At the same time, she challenges the emerging view that all (or almost all) antidiscrimination law is inherently and exclusively distributive. That view, she argues, is both mistaken and dangerous, for it casts aside the longstanding fault-based component of the nondiscrimination obligation

Race and Sex in Organizing Work: Diversity, Discrimination, and Integration

This Article provides the first extended analysis of the conscious consideration of race and sex in organizing work. It draws on research and literature in the fields of sociology, social psychology, and organizational theory to expose the risks and possibilities of permitting race- and sex-based decisions organizing work for workplace equality. Based on this empirical foundation and on established Supreme Court case law setting limits and conditions on the use of race and sex in employment decisions under Title VII, the Article presents an argument that is equally normative and doctrinal

It\u27s Not You, It\u27s Me: Assessing an Emerging Relationship between Law and Social Science Essay

This Essay isolates and assesses an overlooked consideration on an emerging and significant issue in employment discrimination law. The emerging issue: When should employers be held liable for established widespread differential treatment within their organizations? The overlooked consideration: the relationship between law and social science. Although this Essay focuses closely on a specific doctrinal issue in employment discrimination law, it also sets broad theoretical groundwork for thinking about the implications of the relationships that might emerge between law and social science in a variety of legal realms