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Author: Tristin Green

21

Title VII, the Adverse Action Requirement, and Ricci v. DeStefano

The reverse discrimination case Ricci v. DeStefano , in which the Supreme Court recently granted certiorari, is a strange case for the Court for a number of reasons. One oddity is the fact that the case involves a Title VII Civil Rights Act claim by plaintiffs who do not seem to have suffered an “adverse employment action,” and yet there is no hint anywhere, at least that I have seen, that this issue was raised. In the traditional discrimination context, courts have consistently required that a plaintiff have suffered an adverse employment action before he or she has an actionable claim under Title VII. Many courts define the requirement strictly, to require an “ultimate” employment action, like refusal to hire or to promote, and even those applying a somewhat broader definition require that the race- or sex-based decision have had a material effect to be actionable. The firefighters in Ricci had suffered no such material effect. Why no mention of this in the case? If courts are really going to apply an adverse employment action requirement to Title VII claims, the requirement should apply regardless of how obvious the racial motivation and certainly regardless the race of the plaintiffs.

1

Race Matters

On the heels of Obama’s election, many Americans are wondering whether race really matters anymore. Are we on the edge of a color-blind society? Have whites moved beyond race as a per se factor in shaping preferences? A study titled “In the Eye of the Beholder: Racial Beliefs and Residential Segregation” in the latest volume of the Du Bois Review reminds us that race continues to matter, and that it continues to matter in part as a consequence of whites’ racial stereotypes and negative racial beliefs.

Over the past several years, two prominent studies have demonstrated that race matters to employers in hiring. In one study, published in 2003 in the American Journal of Sociology, employers responded negatively to Black applicants (White applicants who reported a criminal record, for example, were more likely to be called back for a second interview than were Black applicants with no criminal record); in another, published in 2004 in the American Economic Review, they responded negatively to African American-sounding names on resumes (White applicants on average had to send out ten resumes to get a call for a job interview; Black applicants with a resume identical to that of the white applicants, except for name, had to send out fifteen resumes to get a call).

The recently published Du Bois Review study shows a similar reaction to race by whites in the housing market. The researchers constructed videos depicting different neighborhood social-class levels. Each video showed five hired actors as “residents” of the neighborhoods, picking up their mail, talking with each other, etc. For each social-class level, the researchers created videos with exclusively Black residents, with exclusively white residents, and with a mix of Black residents and white residents. The residents were otherwise matched in clothing style, age, and sex; the only difference was their race. See a sampling of the videos.

The finding? From the authors:

. . . . White respondents who saw a neighborhood with only Black residents evaluated it significantly more negatively than similar Whites who saw exactly the same neighborhood but with White residents. The skin color of our resident actors gave White respondents information they used to judge whether the homes were expensive or moderate in cost, whether the neighborhood was safe, whether the schools were good, whether housing prices would likely to go up or stagnate in the future.

8

Women, Men, and Pay: No More Negotiating for Initial Salaries?

The issue of pay disparities between men and women in America is in the spotlight. By all accounts, the Lilly Ledbetter Fair Pay Act will soon become law. I have argued elsewhere that this effort to mitigate the immediate effects of the Supreme Court’s decision last year in Ledbetter v. Goodyear does little to unseat the much deeper and more potentially devastating conceptual shift that the decision represents. But the passage of the Lilly Ledbetter Fair Pay Act—and its prominence during the election—is still remarkable and important and a testament of the current interest in the gender pay gap.

Along with the Fair Pay Act, we can also expect passage of the Paycheck Fairness Act. Section Five of that Act authorizes the Secretary of Labor to establish and carry out a grant program that awards funds for negotiation skills training programs that “empower girls and women.” According to the section, “The training provided through the program shall help girls and women strengthen their negotiation skills to allow the girls and women to obtain higher salaries and rates of compensation that are equal to those paid to similarly-situated male employees.”

Section Five is undoubtedly a response to the substantial body of research that has accumulated over the past decade showing that women are less likely to negotiate than men. Several popular books have been written on the subject (e.g., Women Don’t Ask; Shadow Negotiation). At the Women and the Law section panel at AALS this last week, two of the five panelists spoke about women and negotiation. One described a class being taught exclusively to women in law school that teaches negotiation skills; the other urged women to negotiate, but to do so carefully, since the research also shows that women are penalized when they negotiate (a negotiating woman doesn’t fit the schema of a woman being warm and self-sacrificing rather than business-like and self-promoting). The consistent thread is that women need to “ask”; otherwise, they will obtain a lower starting salary than their male counterparts, who do ask.

I don’t dispute this basic point. I wonder, though, whether we shouldn’t be thinking more about the role of negotiation in all of this.

I’d be interested to hear of any research or literature asking whether it might be possible to pull back on negotiation, at least at certain key moments, such as the setting of initial salaries. I realize that the issue is complex, that negotiation is really an everyday practice rather than a particular-moment practice and that negotiation affects a range of job features as well as salary, but just to simplify: Why not urge employers to move away from negotiation of initial salaries as a way of reducing the disparity in pay between men and women?

Removing negotiation from initial salaries wouldn’t reduce the biases and stereotypes that are also likely to fuel lower salary offers to women (Ian Ayres’ research on car sales suggests as much), but it might reduce some of the disparity in pay by eliminating the discrimination associated with negotiation, including the penalty that women suffer when they do ask and the penalty that they suffer when they don’t.

0

Individualizing v. Generalizing

Thanks to Dan for inviting me to blog this month. I’m looking forward to it.

I’ll start with two pieces in the NY Times Sunday Magazine this week that raise interesting questions about individualization versus generalization and the struggle for equality for women and people with disabilities.

In Creature Comforts, Rebecca Skloot reports on the difficulty faced by people with disabilities seeking to use a variety of animals to assist them in day-to-day public life. In doing so, she identifies the inevitable tension between the individualized inquiry required by the ADA and the urge (and sometimes need) to generalize. The people maintaining public spaces, including those who use those spaces, want bright lines about which animals are permissible service animals, while the ADA requires that they accommodate individuals with disabilities and their individualized needs.

Similarly, in The Senator Track, Lisa Belkin comments on the difficulty that women (including Caroline Kennedy) face when they seek jobs after taking what she calls a “mom sabbatical.” Belkin claims that we need to redefine “experience” so that “what you do, and think, and produce, and change all count—even if none of your activities take place in an office, where you enjoy a title and a salary.” This call for individualized inquiry, however, butts up against the simplicity and utility of generalization; in short, working in an office with a particular title serves as a general proxy for a group of skills that Belkin would have employers examining on an individual basis (e.g., ability to run meetings, to arrive on time, to manage accounts, etc.).

The fight for individualization over generalization is a worthy one. In setting up the equality struggle in this way, however, both pieces miss an important component of the battle: longstanding and entrenched biases. In the disability context, our perceptions and judgments about the suitability of certain animals for public accommodation are undoubtedly intertwined with our biases regarding difference (and our definitions of “normalcy”). It will be much easier, I expect, to get people to accept, for example, horses as service animals for the blind than it will be to get people to accept a parrot as a service animal for a man prone to psychotic episodes. Similarly, the difficulty faced by women who take time out of the traditional work force to provide care for family members is as much one of stereotypes as it is of a more neutral inclination to generalize. I’m reminded here of research by sociologist Shelley Correll and colleagues at Cornell on the motherhood penalty (for a recent review of the research the work in this area, see Stephen Benard et al., Cognitive Bias and the Motherhood Penalty, 59 Hastings Law Journal 1359 (2008)). This research suggests that a woman seeking to reenter the traditional work market will have to overcome stereotypes that her male counterpart will not. Imagine a mother and a father who each picks up a child from your neighborhood school, Monday through Friday at 1:30 pm. You bump into each one and engage in conversation; which one do you expect will have an easier time convincing you (through subtle signals or otherwise) that he/she is engaged in workforce-related activities between 9:00 and 1:00?