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.
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.
Here's my suggestion, inspired to by Documenting Desegregation. Underrepresentation is very widespread, and easy to detect. Why not label it?
Using the same EEOC data, my colleague Matt Huffman and I identified workplaces in which there were fewer African-American managers than would be expected by chance, using a test common in employment litigation. With a wide statistical margin—95 percent confidence—we found, for example, that 7 percent of black private-sector workers in the D.C. metropolitan area worked for employers with easily identified underrepresentation of black managers. That is, they had fewer black managers, compared with other firms in their same industry in their same town, than would have occurred by chance. Maybe they aren't discriminating on purpose, but they're probably doing something wrong. As a customer, client, business partner or job applicant at that firm, wouldn't you like to know that? (Of course, as researchers we are prohibited from revealing information about individual employers.)