A Simple, Legal Way to Help Stop Employment Discrimination

Women and racial minorities are no longer making progress toward equal representation in the workplace. Here's a way to maybe fix that.
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Jacquelyn Martin

Progress toward gender and racial equality in the workplace has basically stalled. One reason for that is the government's lack of antidiscrimination enforcement. As Donald Tomaskovic-Devey and Kevin Stainback show in their book Documenting Desegregation, ever since the reign of Clarence Thomas as head of the EEOC in the 1980s, the Equal Employment Opportunity Commission (EEOC) has been underfunded, understaffed, and largely ineffective at doing its job. To help get things moving again, under the existing law (more or less), we could use the power of social media and the principle of government transparency to allow workers and consumers themselves to apply pressure on discriminating employers. Would it work? It couldn't hurt. First a little background.

Anti-discrimination today
Here is the occupational segregation trend from 1966 to 2005, from Documenting Desegregation, just comparing white and black men and women. The index of dissimilarity shows what percentage of a group would have to change jobs to have the same representation as white men.

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The figure shows white women made a lot of progress in the 1970s and 1980s, but less since. Black women have a similar pattern but much slower progress. And black men haven't budged since 1980. The same pattern holds for representation in managerial jobs.

The burden to fight discrimination today is mostly on workers who have been discriminated against to first discover this fact and second file a complaint and/or lawsuit themselves. The courts have tightened their definition of discrimination to include only deliberate acts proven to have been motivated by discriminatory intent - a very steep burden. And they have reduced workers' capacity to bring class actions, most notably in the Wal-Mart decision, which makes it hard to get good legal teams. As a result, few cases make it to court, and virtually no one wins. A study of 1,672 employment discrimination cases from 1988 to 2003 found that about half resulted in settlements (with a median value of $30,000), 6 percent went to trial, and one-third of those were victorious (with a median award of $110,000). Although more than 100,000 people file discrimination complaints with the EEOC, most workers lack basic information not only about the law and their options, but about their own employers' practices (as was painfully revealed when Lilly Ledbetter discovered she had been discriminated against by Goodyear for many years). And people who aren't hired in the first place have an even smaller chance with the law.

In the 1964, Congress passed the Civil Rights Act, which included in Title VII a mandate to collect information about employment in the private sector. Since 1966, all large employers are required to submit a simple accounting: the number of workers, by race and sex, in each of nine occupational categories. This has produced a treasure-trove of data, which Tomaskovic-Devey and Stainback used to document the trends. But this information could be used more proactively by the government itself, if stopping discrimination were a higher priority.

Anti-discrimination tomorrow
Defining and proving discrimination is difficult. Many employers have no outward motivation to discriminate—they just don't do enough to stop discrimination by individual supervisors, recruiting practices that produce narrow applicant pools, and malicious co-workers. So not every workplace with an underrepresentation of women or minorities is a case of willful discrimination. But when a workplace has significant underrepresentation in either its management or its overall employee pool, it's at least worth taking a look to see what's going on.

Presented by

Philip Cohen is a professor of sociology at the University of Maryland, College Park. He writes regularly at Family Inequality and is the author of The Family: Diversity, Inequality and Social Change

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