The University of Buffalo reports that another academic article addressing individual vs. organizational responsibility for employment discrimination will be published. Entitled “Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences,” by Ellen Berrey, Ph.D., Robert L. Nelson, Ph.D., and Laura Beth Nielson, Ph.D., the article will be published in Annual Review of Law and Social Science in December.
In an earlier post, “How the lack of fair pay affects us all,” I reported on an academic article entitled (in part) “Insular Individualism,” making the case that courts have been trending toward blaming an individual or a group for employment discrimination while keeping the employer and its work environment safe from blame.
Similarly, “Divergent Paths” recognizes that the U.S. legal system places blame for employment discrimination on individuals, seeking out those who maliciously committed deliberate discrimination, even though this is not the most effective method of correcting the problem of employment discrimination. Instead, workplace discrimination would be better addressed through remediation of organizational practices – in particular, practices employers use that tend to perpetuate discrimination.
I think that a major point of this article is that if the discrimination is systemic, affecting the entire organization, then the remedy should also be systemic. The article predicts that without system-wide remedies that affect entire organizations, the discrimination will continue and individual employment discrimination cases will continue to be difficult to prove.
The question that I have is, how does one shift the courts’ point of view away from individual instances of particular discrimination toward system-wide, organizational discrimination? Through legislation? Focused litigation efforts? Powerful business lobbies would push back, hard. I don’t think a remedy is forthcoming.