Discrimination Research Paper

Contemporary antidiscrimination law is predominantly (or at least most controversially) concerned with distinctions drawn (or, in some cases, inappropriately not drawn) on the basis of socially defined personal attributes that have been and remain the bases for adverse treatment (such as religion, race, gender, national origin, and disability). The legal concept of discrimination is not limited in its historical origins to group-based distinctions of this sort. As a concept in American constitutional rhetoric and law, the term also designates protectionist distinctions between states and countries engaged in interstate and foreign commerce. For purposes of this research paper, however, our focus shall be on ‘discrimination’ of the inter-group sort, in part because it is that form of discrimination that has most interested the social scientific community.

The development of any nation’s antidiscrimination law is deeply dependent upon its own history and culture. In the field of race and ethnicity, the need for legal redress for race discrimination arises out of variable histories of immigration and its selective suppression, slavery and indentured labor, colonialism, and genocide. Social movements calling for legal and social change are culturally specific as well, although influenced by past experiences elsewhere in the world. Movements to identify and redress gender discrimination are also shaped by local settings. This is true not merely because the degree to which gender takes center stage depends in part upon whether and how the stage must be shared with the issue of race, but also because the variable social situation of women has much to do with how women will conceptualize their own equality and the spheres of activity in which they will press their legal claims. This essay will focus on efforts by the United States at the federal level, but will conclude with a discussion of leading issues from several other countries.

1. Federal Antidiscrimination Law In The United States

Federal antidiscrimination efforts reach a wide array of social and legal arenas. Some of the most important of these are education, employment, voting, public and private housing, public accommodations (e.g., transportation), bank lending, government contracting, marriage and parenting, and the administration of criminal justice.

In light of the American history of slavery, civil war, failed post-civil-war reconstruction of the South, and the mid twentieth-century civil rights movement aimed at ending the pervasive segregation of African-Americans, race has been the most frequent starting point for American antidiscrimination law. The Fourteenth Amendment of the Constitution of the United States, itself a product of the Civil War experience, contains an Equal Protection Clause that serves as the primary source of federal constitutional antidiscrimination doctrine. Federal equal protection analysis generally assigns different ‘levels of scrutiny’ to different types of discriminatory classifications. For example, race discrimination is subject to ‘strict scrutiny’; gender discrimination to ‘intermediate scrutiny’; and age discrimination to ‘rationality review,’ the same level of review that is given to ordinary economic legislation for a general survey, see Tribe (1978). Governmental classifications rarely survive strict scrutiny and struck down rarely under rationality review, although there are some exceptions. Because the Fourteenth Amendment does not reach discrimination by purely private parties, much of the federal antidiscrimination effort in the United States has been made under the auspices of antidiscrimination statutes.

The American law of discrimination starts with high-sounding commitments in seminal statutes or Supreme Court opinions, but its development rapidly takes the form of the elaboration of highly specific structures of proof for dealing with discrimination claims arising under the various sources of law and in the various areas of social practice surveyed above. One result is that antidiscrimination law has developed a number of distinct specialities, each concerned with a separate jurisprudence of discrimination in its own field. Another result is that, in American antidiscrimination law, the devil is in the details. By shaping proof structures, and by applying civil procedure and evidence rules to discrimination cases, courts shape the likelihood that plaintiffs will succeed in their claims (Albiston 1999).

1.1. Employment

The leading federal antidiscrimination statute in the employment field, Title VII of the Civil Rights Act of 1964 (known as ‘Title VII’) was stimulated by the violent resistance by the South to court-ordered racial desegregation and to the 1960s civil rights movement. Title VII prohibits discrimination on the basis of race, color, sex, religion, and national origin. Although feminist activists lobbied for the inclusion of sex discrimination, the statute as originally proposed left sex discrimination out. It was included through an amendment proposed by a congressional opponent of the statute, whose confidence that including sex would block passage of the statute proved misplaced. Once enacted, however, the prohibition of sex discrimination has been a robust and creative aspect of statutory enforcement.

Employment discrimination on the basis of age and disability was subsequently addressed in the Age Discrimination in Employment Act (1967) and Americans with Disabilities Act (1993). Legally-focused civil rights movements on behalf of non-racial groups (such as the development of the disability-rights movement and its involvement in the design of the Americans with Disabilities Act) have contributed to these legal developments. Not all groups have met with success: for example, Congress has yet to enact legislation barring employment discrimination on the basis of sexual orientation.

In the early years of race discrimination litigation under Title VII, the Supreme Court developed three basic proof structures: ‘individual disparate treatment,’ ‘pattern and practice,’ and ‘disparate impact.’ None of these terms appear in Title VII itself, which speaks most generally in terms of discrimination ‘because of’ race, sex, and so forth. The ‘individual disparate treatment’ and ‘pattern and practice’ proof structures turn upon proof of the employer’s discriminatory intent. The disparate impact proof structure does not. Relying instead upon proof of discriminatory effects of racially-neutral practices.

In the ‘individual disparate treatment’ case, intent is an inference drawn by a factfinder ( judge or jury) from a variety of types of circumstantial evidence aimed at refuting the possible nondiscriminatory reasons for an adverse employment action. While this sounds relatively straightforward, the Supreme Court surprised the plaintiffs’ bar in 1993 by holding that merely establishing the required prima facie case and disproving the employer’s stated justification for its action does not entitle the plaintiff to a victory (Malamud 1995), and has only begun to clarify the circumstances under which doing so entitles the plaintiff to go to trial.

In ‘pattern and practice’ cases, plaintiffs (most often a group of plaintiffs using the procedural mechanism of the class action) rely primarily on labor market analysis and statistical evidence to create an inference of intentional discrimination. The theory underlying the use of statistics is that, absent discrimination, each employer’s workforce would resemble the racial composition of the relevant labor market. Employers’ defense consists chiefly of attacks on the appropriateness of the plaintiffs’ labor market definition and on the accuracy of their statistical analysis. Because the pattern and practice case is so reliant on expert testimony, these cases are expensive to litigate and often push the courts beyond their level of technical expertise.

In a disparate impact case, a plaintiff or plaintiff class challenges a facially-neutral employment practice (for example, a test) on the grounds of its disparate adverse effects on members of her group. So, for example, in the case of Griggs v. Duke Power Co. (401 US 424 [1971]), markedly lower proportions of blacks and Latinos than whites in the relevant labor market passed standardized aptitude tests and had high school diplomas, leading to diminished access to preferred jobs in the employer’s workforce. Absent a showing of ‘business necessity’ or ‘job relatedness,’ the Supreme Court held, employers could not use tests and other hiring criteria that placed ‘arbitrary headwinds’ in the way of the progress of traditionally excluded groups. In 1988 and 1989, the Supreme Court made it markedly harder for plaintiffs to win cases under the disparate impact proof structure; legislation in 1991 rewrote the statute to eliminate some but not all of the effects of those decisions. (See Hunter and Shoben 1998, for a discussion in a comparative context.)

Even after Congress passed clarifying legislation in 1991, elements of the disparate impact proof structure remain uncertain. Because these cases involve comparison-group definitions, questions are raised in every case as to whether the reference group should be employer’s existing labor force, the applicant pool, or some other definition of the relevant labor market. The current standard for showing disparity has been criticized for failing to comport with social-scientific definitions of statistical significance (See, e.g., Meier et al. 1984). The precise conceptual content of the phrases ‘business necessity’ and ‘job relatedness’ is still subject to doubt, particularly when disparate impact analysis is used to challenge employment practices other than paper-and-pencil tests (where ‘job relatedness’ has long been tested through psychometric techniques of test validation). In addition, while the use of disparate impact analysis is now provided for by statute in the case of Title VII and the Americans with Disabilities Act, its availability under federal age discrimination legislation is open to serious doubt.

One area in which Title VII law has been relatively stable is the law of affirmative action. Under United Steelworkers of America v. Weber (442 US 193[1979]), employers are permitted to use affirmative action (if it is consistent with standards laid out in that opinion), and the Supreme Court reiterated more recently that the employer does not need to prove that its own prior policies were discriminatory in order to do so (Johnson v. Transportation Agency of Santa Clara County, 480 US 616 [1987]). The debate among the justices in these cases was open and virulent, and yet affirmative action in employment has not provoked recent challenge (in contrast to the status of affirmative action under the constitution, discussed below). The Supreme Court’s embrace of affirmative action in employment is not without limits, however, and as of 2001 there is a mismatch between current social practice and the Supreme Court’s past opinions. The Supreme Court has never held that the desire for greater diversity is a permissible basis for affirmative action under Title VII but, despite that fact, diversity is the major stated justification for many affirmative action programs. In addition, the Court has never held that Title VII permits the use of affirmative action principles in making layoff decisions.

The example of American employment discrimination law shows that the true state of antidiscrimination law cannot be assessed merely by looking at the written laws themselves. One must also be aware of how the statutes are being interpreted by courts and/or relevant administrative agencies; of how generally applicable procedural and evidentiary rules are used in discrimination cases; of the expense of litigation; and of the practical availability of experts with necessary skills and experience. One must also have a sense of trajectory (is the law becoming more or less friendly to plaintiffs over time?) and of symmetry (are similar laws being interpreted in similar or dissimilar ways?).

1.2. Other Areas Of American Law

In considering proof structures outside the employment discrimination field, a key factor is the unavailability of the disparate impact cause of action in constitutional cases arising under the Fourteenth Amendment. (The Supreme Courts so held in the case of Washington v. Da is 26 US 229 [1976]). Although Washington v. Da is was in fact an employment testing case, the Court’s decision was likely motivated by the wide range of government programs that might be subject to challenge under the Constitution.

Because of the lack of the disparate impact route, showing discriminatory intent is the key to constitutional antidiscrimination litigation. Needless to say, it can be quite difficult to determine the intent of a legislative body. One conspicuous example is in the field of legislative redistricting, in which a string of equal-protection reverse-discrimination suits have been brought by white voters to challenge majority– minority districts created pursuant to the Voting Rights Act. The Court has held that the Equal Protection Clause is violated (under strict scrutiny) when race becomes the predominant factor motivating the redistricting decision. The Supreme Court is still wrestling with how to characterize the intent of the state legislature when, in order to protect incumbents, it creates majority–minority districts that are less compact and/or less contiguous than ordinary districts (see Pildes and Niemi 1993).

In primary-and secondary-school desegregation litigation, close judicial scrutiny was triggered in years past by findings that boards of education were operating their schools in an intentionally discriminatory fashion. Courts retained jurisdiction to administer complex court-ordered desegregation plans, often for decades. Until such time as the districts are declared ‘unitary’ by the presiding court, practices that were not themselves intentionally discriminatory could be challenged as perpetuating the effects of past intentional discrimination. In recent years, however, the trend has been for courts to conclude that the school districts under their jurisdiction have achieved ‘unitary’ status and that any continuing inequalities within the system no longer bear an organic connection to the district’s past history of intentional discrimination (Orfield and Eaton 1996).

In higher education, affirmative action has been the focus of major political and judicial attention in a variety of fields under constitutional law. The continued constitutionality of affirmative action in higher education under the Supreme Court’s decision in Regents of the State University of California v. Bakke (438 US 265 [1978]) question, and challenges have been brought to affirmative action programs in the undergraduate and professional schools of several major state universities. Whether the Supreme Court will re-commit itself to affirmative action in higher education when the appropriate case comes before it remains to be seen.

Criminal justice in the United States has a significant racial dimension, one that contributes to the gap in perception of the fairness of the system between blacks and whites. Some important efforts to redress racism in criminal law enforcement have met with failure, in part because of the difficulty of persuading courts of discriminatory intent through statistical evidence. For example, in McCleskey v. Kemp (481 US 279 [1987]), the Court rejected the claim, based on extensive statistical evidence, that the death penalty as practiced by state governments is unconstitutionally discriminatory (Baldus, Pulaski, Woodworth 1983).

2. International Developments

As other nations and transnational entities address the discrimination in their own midsts, they learn not only from their own histories but also from the successes and the failures of the American model. A few examples must suffice.

The new constitution of South Africa expressly permits constitutional challenges to be brought under disparate impact theory, by prohibiting both direct and indirect discrimination. The Constitutional Court of South Africa is a court of great sophistication and deep commitment to comparative constitutional analysis. It will thus serve as a counterexample to the United States, which early eschewed constitutional disparate impact theory and has never looked back.

The law of free speech under the First Amendment of the United States constitution has stood in the way of pervasive hate speech regulation in the US. In contrast, out of the historical experience of Germany has grown a strong commitment in German law to prohibiting the group-hate speech exemplified by expressions of anti-Semitism (Stein 1986; see Schauer and Pildes 1999). Notwithstanding these legal prohibitions, skinhead and other white racialist groups in Germany continue to attack perceived outsiders to their idealized homogeneous ethnic German society, just as racist attacks continue to occur in the United States.

In the field of gender discrimination in employment, the theory of ‘comparable worth’ is an important (if still unclear) part of the gender discrimination law of the European Community and some of its member states (e.g., Ellis 1998, Libeson 1995). In comparable- worth analysis, women use the tools of job and wage analysis to demonstrate that they do not receive the same returns on effort, education, and skill as do occupants of traditionally-male jobs. In contrast comparable worth has not made significant inroads into American law (Blum 1991).

Affirmative action (under its many names) and its surrounding controversies are international phenomena. In Europe, the European Court of Justice has upheld the use of affirmative action in favor of women seeking promotion, but only when they are of ‘equal suitability, competence and professional performance’ and no ‘reasons specific to an individual [male] candidate tip the balance in his favor.’ (See Zuleeg 1999, Cox 1998). In contrast, Indian law has ‘reserved’ scarce positions for members of ‘backward castes and classes’ for decades, including legislative seats (Galanter 1984). In South Africa, the post-apartheid constitution explicitly permits affirmative action. The slowly-developing case law on the issue has met with controversy as members of the intermediate racial groups in the old apartheid system (coloreds and Indians) find themselves in competition with blacks for scarce positions (e.g., Higginbotham 1999, Adam 1997).

In surveying examples, one must not forget that in many countries, antidiscrimination law is still in its infancy. To choose one example, Japanese employment discrimination law has only recently been used to challenge the pervasive exclusion of professionally educated women from professional-level jobs (e.g., Fan 1999, Yamakawa 1999).

3. The Role Of Social Science In Antidiscrimination Legal Practice

As should be apparent from the above survey of American antidiscrimination practice, social science has a crucial role to play in proving discrimination. Social science has also been an important reality check, by asking important empirical questions both about the efficacy of current antidiscrimination laws and the variables underlying the development of effective antidiscrimination law. Social science has played the weakest role, however, in the area where it may well have been the most helpful—that is, in developing the law’s basic concepts of discrimination.

In the employment discrimination field, expert testimony from social scientists is a necessity in disparate impact and pattern and practice cases. At a minimum, several types of social scientific expertise must be brought into a case. In both disparate impact and pattern and practice cases, labor market experts are necessary to formulate and to defend definitions of the relevant labor market, using census data, industry surveys, and other sources. Testing psychologists (psychometricians) play a crucial role in disparate impact cases both in designing employment screening tests in such a way as will allow them to withstand legal scrutiny, and in challenging the designs of tests in litigation. Statisticians are needed in both types of cases to ensure that appropriate data are collected through the courtadministered evidence discovery process, to formulate an affirmative case from the data, and to critique the rival statistical story being told by the opposing party. Expertise from a number of disciplines is drawn upon to demonstrate or to refute the extent to which underrepresentation of groups results from their lack of interest in particular categories of jobs (e.g., Schultz 1990). Thus, disparate impact and pattern and practice cases are universally viewed as battles of the experts—which is a problem for the untrained judges and juries who must evaluate the evidence. Expert testimony has also found its way into individual disparate treatment cases. In Price Waterhouse v. Hopkins (490 US 228 [1989]), for example, expert testimony was admitted in order to demonstrate that certain statements by supervisors were based on sexual stereotypes.

While employment discrimination litigation employs the talents of psychologists, labor economists, and statisticians, the field of voting rights has brought political scientists into the expert witness role. Legislatures employ sophisticated demographic and political models when they redistrict, and the political scientists who created these models have played an important role in defending them and their results in court. Educational desegregation litigators utilize the expertise of specialists not only in education but also in demography, because patterns of housing segregation play an important role in long-term educational segregation.

Social scientists have ascertained the effectiveness of existing antidiscrimination frameworks both in the United States and elsewhere (e.g., Donohue and Heckman 1991, McCrudden et al. 1991, Edelman 1990). Social scientists have also contributed to the legal debate by re-examining legal assumptions about the mechanisms through which discrimination takes place. In the area of comparable worth, for example, US-based researchers have argued that gender wage disparities are caused by organizational practices that are not likely to be remedied by ‘putting comparable worth as an overlay on existing compensation systems (Nelson and Bridges 1999). On a more theoretical level, empirical comparative studies in political science can shed light on the social and institutional circumstances that lead constitutional courts in some countries to be particularly willing to use their authority to articulate and to extend anti-discrimination norms (e.g., Epp 1998).

Where social science has played less of a role is in the development of the law’s basic concepts of discrimination. Contemporary studies of prejudice in social psychology and elsewhere are critical of the intent-based model of discrimination that permeates American law. Perhaps the lack of penetration by social scientists into the conceptual core of American antidiscrimination law is a problem of origins. American antidiscrimination law grew out of the blatant intentional discrimination practiced against African Americans. In Brown v. Board of Education (347 US 483 [1954]), social scientific testimony convinced the Court that intentional segregation stigmatizes blacks; by so doing, it fostered the nation’s hope that desegregation would allow blacks and whites to put ancient hatreds and mistrusts to rest. Close to fifty years of life post-Brown has put that optimism to the test, perhaps to a greater degree than the courts are prepared to admit. When they are not ready to admit the problem, legal actors show little willingness to turn to social science either to redefine it or to solve it.

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