Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality by Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen is a required text for SOC323 Law and Society. Employment discrimination, the different treatment an employee experiences that is based on social inequalities of race, sex, ethnicity, class, religion, class, age, or disability by the employer, is unfair. This form of discrimination is constructed by ascriptive hierarchies: the stratification and ranking of assigned statuses beyond an individual’s control resulting in unequal access to resources. This reading argues that employment discrimination litigation plays a major role in reinforcing and rearticulating social inequalities of race, gender, ethnicity, and class in employment discrimination.
The authors state that discrimination can occur indirectly (subtly and systemically) or directly (intentionally and clearly) or both simultaneously. Despite having laws, statutes, and internal firm procedures intended to prohibit employment discrimination, the authors argue that these do not serve their purpose of protecting the employees and instead protect the employers. The central argument of this reading is that law provides civil rights that reinforce the very inequalities the law is supposed to stop. Legal inscription is how the law rearticulates, reinforces, and legitimates social inequalities. Law is not protecting as so much as it is recreating the legitimacy of the experience that plaintiffs had. For example, courts rely heavily on the managerial authority of employers instead of the plaintiff’s account. By deferring to the power of employers where authority of management is treated as more respectable and favourable, rulings have reiterated that law is not serving its function to protect the employees as well as the reinscription of social inequalities.
Four mechanisms in which law influences the inscription of inequality: first is individualization of the conflict. This is when law individualizes the problem, in defining discrimination because of its emphasis on looking for obvious acts of direct employment discrimination. By isolating and not considering that indirect discrimination may be present, the law reinscribes a standard of inequality and power imbalance between the employee and employer. Secondly, the adversarialism of the antidiscrimination system is clear in the outcomes of cases. This refers to a dispute where there are two sides in the conflict. This system is unequal because of one-timer player (plaintiff) against repeat player (employer). The plaintiff is only there for this one issue, whereas the employer is experienced in lawsuits over the years.
Thirdly is the structural asymmetries and inequalities of the imbalance in power, resources, and experience. Unlike individual plaintiffs, employers have had lawsuits before and usually have an attorney in their organization that has training, experience, and financial stability to oversee the litigation. Lastly is stereotyping, referring to the subjective and artificial beliefs about the characteristics of individuals who are identified with a particular social category, and not individuals’ merits. Stereotyping drives discrimination and is the basis of most discrimination plaintiffs described such as gendered, racial, ableists, and ageist stereotyping. Stereotyping allows employers to reinforce existing notions of inequality and maintain a power imbalance. This text illuminates the reasoning behind workplace discrimination and how law perpetuates these power dynamics.
