Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality
ELLEN BERREY, ROBERT L. NELSON, and LAURA BETH NIELSEN
On the surface, America’s commitment to equal opportunity in the workplace has never been clearer. Virtually every company has anti-discrimination policies in place, and there are laws designed to protect these rights across a range of marginalized groups. But, as Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen compellingly show, this progressive vision of the law falls far short in practice. When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they’ve lost regardless of the outcome of the case. Employer defendants also are dissatisfied with the system, often feeling “held up” by what they see as frivolous cases. And even when the case is resolved in the plaintiff’s favor, the conditions that gave rise to the lawsuit rarely change. In fact, the contemporary approach to workplace discrimination law perversely comes to reinforce the very hierarchies that anti-discrimination laws were created to redress.