BUFFALO, N.Y. -- University at Buffalo sociologist Ellen Berrey,
Ph.D., and two scholars from Northwestern University, say the
excessive emphasis in U.S. law on overt acts of employment
discrimination ignores the unintentional bias that permeates
workplaces and the organizational practices responsible for much
Berrey and her co-authors Robert L. Nelson, Ph.D., and Laura
Beth Nielson, Ph.D., both affiliated with the American Bar
Foundation and Northwestern University, say the law conceives of
employment discrimination too narrowly, thus enabling
discriminatory organizational processes to continue.
They make their case in "Divergent Paths: Conflicting
Conceptions of Employment Discrimination in Law and the Social
Sciences," an article to be published in December in Annual Review
of Law and Social Science, a prominent journal in law and social
Nelson, the lead author of the article, is director of the
American Bar Foundation, where he holds the MacCrate Research Chair
in the Legal Profession, and professor of sociology and law at
Northwestern University. Berrey, an assistant professor of
sociology at UB, specializes in organizational ideologies of
diversity, employment discrimination and social inequality. Nielsen
is a Research Fellow at the American Bar Foundation and an
associate professor of sociology and law at Northwestern.
The authors argue that this narrow legal conception of
employment discrimination increasingly dominates judicial
"Coupled with a system of employment discrimination that
emphasizes individual claims and individual remedies," they write,
"[the law] fails to support the organizational approaches that are
most promising for redressing workplace discrimination."
They call this legal conception "erroneous" and "at odds with
the psychological and sociological literature on the nature of
discrimination and how it can best be addressed in work
Berrey explains that over the past few decades, the law has
adopted a "perpetrator" model of discrimination that emphasizes
She says, "Judges and courts look for malicious individuals who
intentionally discriminate. But research has repeatedly shown that
the notion of purposeful intent does not accurately describe how
people act or think when they discriminate in the workplace.
"Psychologists document the pervasiveness, instead, of
unintentional bias," she says, "and research also points to
different organizational practices -- like hiring by employees'
networks -- as sources of employment discrimination."
According to Berrey, "The point is that individuals can be
seriously injured even when no one intentionally discriminates. And
when the law fails to regulate the actual practices that perpetuate
discrimination, then it fails to equally protect everyone in the
The authors say the divergence between the treatment of
employment discrimination in the law and in social sciences has
profound implications. Organizations tend to systematically
disadvantage women, minorities and other less advantaged groups.
Without efforts to counter these tendencies, such disadvantage will
continue. Individuals who believe they have been targets of
discrimination are required to demonstrate to the courts specific
instances of deliberate discrimination, contributing to the large
volume of difficult-to-prove litigation cases.
"The social sciences have not gained authority within law," they
write, "even regarding issues on which scholars have produced an
enormous body of published, refereed research."
The researchers recommend that the important research findings
of the social scientists be recognized and promulgated within the
legal community and that the U.S. government and employers develop
systemic programs of reporting, investigation and enforcement that
would have greater impact on workplace inequalities at less cost
than does the current litigation system.
Their conclusions are based on a review of the literature on
employment discrimination law, discrimination litigation,
continuing patterns of racial and gender inequality, the
organizational bases of discrimination and the impact of equal
employment law on organizations.
Berrey, Nelson and Nielson will be among several noted scholars
planning and participating in a November conference held at the
Stanford University Law School, "Discoveries of the Discrimination
Research Group (DRG)" funded by the ABF, the Center for Advanced
Study for the Behavioral Sciences, and the Ford Foundation.
The University at Buffalo is a premier research-intensive public
university, a flagship institution in the State University of New
York system and its largest and most comprehensive campus. UB's
more than 28,000 students pursue their academic interests through
more than 300 undergraduate, graduate and professional degree
programs. Founded in 1846, the University at Buffalo is a member of
the Association of American Universities.