On October 5, 2017, The New York Times ran a front-page story, “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”; the investigative piece documents a pattern of sexual harassment by Mr. Weinstein followed by at least eight settlements with various women. We have read similar stories in high tech, politics, journalism, academia, and other industries. In telling their stories, many of these brave women report that they went to their company's Human Resources (HR) department and found the experience remarkably unsatisfactory. For those of us who have been following Lauren Edelman's scholarship, the hollow and largely symbolic reaction by HR to claims of discrimination should come as little surprise.
Based on decades of research, Edelman's new book, Working Law: Courts, Corporations, and Symbolic Civil Rights, concludes on the rather pessimistic note that “we live not in a post-civil rights society but rather in a symbolic civil rights society” (216). Working Law is a bold and creative contribution to law and social science, social psychology, organizational theory, contemporary American history, and political science. Like many of her generation, Edelman was deeply affected by the aspirations of the Civil Rights Movement. Her scholarship grows out of this commitment and takes as its starting point the Civil Rights Act of 1964 (CRA) with a specific focus on workplace discrimination on the basis of race and gender. Fifty years after passage of the CRA, research consistently shows that minorities and women have not achieved parity in the labor market as measured by earnings or mobility; indeed, since 1980 the gap has increased (Reference Stainback and Tomaskovic-DevyStainback and Tomaskovic-Devy 2012). An impressive body of social science scholarship documents the ways in which discrimination persists through structures that are seemingly neutral but produce discriminatory outcomes, cultures that valorize some skills over others, and stereotypes of the “good,” reliable often white male employee. Against this persistent pattern of growing racial and gender inequality, Edelman asks, “Why have EEO laws not been more successful at reducing these structural, cultural, and cognitive forms of workplace bias?” (11).
Edelman's intervention into this question is organized around a theory of legal endogeneity buttressed by systematic empirical evidence drawn from surveys, interviews, content analysis of HR journals and related materials, content analysis of district and appellate court decisions, content analysis of EEOC guidelines, and government data. Chapter 2 maps out the trajectory of Title VII and EEO laws from its beginnings in the arena of government and politics, through its interpretation and institutionalization by HR professionals in workplaces where it is transformed into a law-like, symbolic arena to managerialize claims of discrimination, and finally by the federal courts themselves who, over time, come to defer to organizations' symbolic structures as evidence of compliance, often without any review of the evidentiary basis for reaching that decision. Briefly, legal endogeneity is then a process through which “the meaning of law is shaped by widely accepted ideas within the social arena that the law seeks to regulate” (12).
It is an article of faith among sociolegal scholars that enabling legislation and court decisions are inherently ambiguous. In Chapter 3, Edelman, however, takes painstaking care to demonstrate the way Title VII and related statutes on the books were ambiguous and their consequences for EEOC and federal court interpretation. As written, Title VII neither defined the term discrimination nor did it clarify the type of evidence required to bring such a claim (43). While initial moves sought to establish a more structural, progressive standard through a legal theory of disparate impact, over time this evolved into a more conservative, disparate treatment standard where the employee is required to show an intent to discriminate, thus “render[ing] judges blind to the subtler forms of discrimination that characterize today's workplace” (72). In addition, key changes in civil procedure, including mandatory arbitration, greater latitude to dismiss cases or decide on summary judgment and the tightening of standards for class action lawsuits, further undermined employees' access to justice and “encourage[s] judges…. to view organizations' symbolic structures as indicia of legality” (72).
Chapters 4 to 6 walk the reader through the institutionalization of Title VII and related law in the workplace, beginning in Chapter 4 with the key translators of law to organizations, including HR professionals, lawyers, management consultants, and insurance companies who sell employment practices liability insurance. Through networking and professional associations, these players secured a powerful niche to translate the legal environment to organizations: “risk is ubiquitous,” because, her content analyses show, the law is described as “hostile, volatile, uncertain, vague, complex, constantly changing and highly variable across jurisdictions” (82). Through case studies of wrongful termination doctrine and EEO/civil rights law, Edelman documents how these professional players leveraged their interpretation of law as risk to render their work and guidance indispensable to employers concerned to avoid liability.
While HR professionals and their cronies were sending employers a wake-up call, civil rights advocates were pressing their political demands to put an end to discrimination in the workplace. Chapter 5 weaves together the social, political, and legal factors that resulted in a model of Title VII and civil rights law compliance organized around “conciliation and voluntarism rather than strong enforcement with accountability and sanctions” (111) measured by the representation of minorities and women at all levels of employment. Put simply, HR professionals enjoyed the upper hand, moved in to fill the void, convincing employers that a variety of all too familiar “symbolic structures, including statements and posters indicating a commitment to civil rights compliance, policies banning discrimination (and later, sexual harassment), and the creation of compliance officer positions, grievance procedures, and training and recruitment programs” (107) would protect employers from the risk of liability. The government moved first to devise these symbolic structures that were picked up by employers with government contracts, colleges and universities and then, ultimately, by private employers in a classic story of mimetic neo-institutionalism to ensure legitimacy among one's peers.
Chapter 6 goes to the core of why so many women have recently described their attempts to report sexual harassment to their employer to be, basically, a waste of time. With the heavy imprimatur of HR professionals and the advice of in-house legal counsel, the language of law is institutionalized through a managerial logic: “Internal dispute resolution … managerializes law by equating civil rights with good management, by reframing rights violations as poor management or interpersonal problems, and by devising solutions that are primarily designed to restore organizational functioning and avoid litigation” (133). Building on this project, Edelman documents the recent transformation of the language itself, where civil rights morphs into diversity programs followed by equity and inclusion.
Edelman is by no means alone in charting the course of civil rights law in the workplace; Reference EppEpp (2009), Reference DobbinDobbin (2009) and Reference SkrentnySkrentny (1996), for example, have each made important contributions to this project. What sets Edelman's work apart is the next step in the theory of legal endogeneity where she comes full circle to ask how the managerialization of law shapes legal consciousness and claimants' mobilization of law, or not (Chapter 7) and to explain judges' responses to claimants who sue after exhausting internal grievance procedures (Chapter 8). The “rationalized myth” (155) of symbolic law of the workplace frames potential claimants' legal consciousness and, not surprisingly, reduces the probability that one will mobilize one's right to sue: experimental research finds, for example, that when participants are shown an employer's diversity statement along with data revealing its failure to promote women and minorities, the company is nonetheless rated as fair. For those plaintiffs who nonetheless persist from naming to blaming to claiming and visit a lawyer, it's quite likely, findings show, that they will be advised that they are unlikely to prevail in court, particularly when the workplace has, at the advice of management lawyers, “bulletproofed” itself with a well-oiled internal dispute resolution process in anticipation of litigation. Based on a random sample of civil rights cases from 1969 to 2014 coupled with a close reading of key district, appellate and Supreme Court decisions, Chapter 8 brings us full circle to examine judges' behavior when confronted with the persistent litigant who brings a discrimination claim. Here, Edelman shows how legal endogeneity evolves over time from judges' reference to employers' symbolic law, to judges' analysis of its relevance in reaching a decision and then, finally, to judges' deference to the mere presence of workplace policies and structures as indicative of or synonymous with effectiveness, a finding that holds regardless of the judge's political ideology or other relevant factors. Judicial deference to symbolic law “even when those structures are ineffective [means that] law in essence condones discrimination” (215).
The workplace is very different from its pre-CRA counterpart, a point that Edelman is quick to acknowledge throughout and in her conclusion. There are more women and minorities in positions of responsibility in all walks of life. But, after reading Edelman's book one cannot help but ask oneself, how different the workplace might be today if employers had taken seriously the spirit of the civil rights movement to end systematic and institutionalized discrimination in all its forms. We can, of course, ask the same question of housing and education (see e.g., Reference SharkeySharkey 2013). Employers spend incredible sums of money to “bulletproof” themselves from liability; one can only imagine how the workplace might look if they had taken the same resources and spent it on structural changes that required demonstrated outcomes toward greater real equality and equity among all men and women.
In this review, I have chosen to present a synopsis, albeit very condensed, of Edelman's book; in the interests of space, I have omitted much of the fascinating detail of this story. I have taken this route as a way to convince you, the reader, that this is a must-read book. I can assure you that you will not be disappointed. That said, the in-house counsel, CEOs, HR professionals and judges who constructed, managed and institutionalized a symbolic civil rights law at the expense of mitigating deeply entrenched racist and sexist workplaces should be required to read Working Law.
