Tagged: legal

The conclusions contained in the longitudinal study Discrimination and Desegregation: Equal Opportunity Progress in U.S. Private Sector Workplaces mirror the workplace trends of William Morris over the past four decades. This study was one of the “first to produce long-time trends on workplace equal employment outcomes” by comparing the fates of black, white, Hispanic and Asian men and women over a period of 36 years (from 1966 through 2002). The researchers concluded: “…from documenting these basic trends..while almost all workplaces have incorporated women and racial/ethnic minorities as employees, status segregation within workplaces remain very high, white males continue to have advantaged access to the best quality jobs, most racial progress in EEO stalled after 1980, and white women seem to have benefited the most from the struggles for EEO.”

the operation of [un]conscious racial biases in the legal profession.

A legal memo drafted with the help of five law firm partners helped a leadership consulting firm demonstrate unconscious biases in the workplace.

The experiment was conducted by leadership consulting firm Nextion, according to the Forbes blog She Negotiates. Above the Law commented on the findings.

Nextion inserted 22 errors in the memo. Seven were minor spelling or grammar errors, six were substantive technical writing errors, five were errors in fact, and four were errors in the analysis of the facts, according to this summary (PDF) of the study.

Sixty partners from 22 law firms who agreed to participate in a “writing analysis study” received copies of the memo. Half were told the memo was written by an African-American man named Thomas Meyer, and half were told the writer was a Caucasian man named Thomas Meyer. Fifty-three partners completed the task. Of those, 29 received the memo supposedly by a white man and 24 received the memo supposedly by a black man.

The reviewers gave the memo supposedly written by a white man a rating of 4.1 out of 5, while they gave the memo supposedly written by a black man a rating of 3.2 out of 5. The white Thomas Meyer was praised for his potential and good analytical skills, while the black Thomas Meyer was criticized as average at best and needing a lot of work.

Reviewers found an average of 2.9 out of seven spelling and grammar errors in the memo by the white Thomas Meyer and 5.8 out of seven errors in the memo by the African-American Thomas Meyer. Fewer technical writing and factual errors were also found in the memo by the supposedly white writer, though the disparity wasn’t as great.

This isn’t really anything new….but it just further confirms the number of “obstacles” or “headwinds” qualified African Americans and people of color have to deal with in order to be hired and/or promoted, especially to higher-status, higher-paying positions in America. Based on the law firms I’ve dealt with over the last four years, it appears that similar to William Morris and the other agencies, studios, networks, etc. in Hollywood, majority of the firms are also overrepresented by Whites/”Jews.” Clearly, it’s not in their interest to comply with and/or make sure their clients are complying with the Civil Rights Act of 1964 either….

Source: http://www.abajournal.com/news/article/hypothetical_legal_memo_demonstrates_unconscious_biases.

“Why are the federal courts so hostile to discrimination claims?”

Each year, the United States District Court for the District of Massachusetts holds an extraordinary panel. All active judges are present to answer questions from the bar. A lawyer’s question one year was particularly provocative: “Why are the federal courts so hostile to discrimination claims?” One judge after another insisted that there was no hostility. All they were doing when they dismissed employment discrimination cases was following the law—nothing more, nothing less.

I disagreed. Federal courts, I believed, were hostile to discrimination cases. Although the judges may have thought they were entirely unbiased, the outcomes of those cases told a different story. The law judges felt “compelled” to apply had become increasingly problematic. Changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 were tantamount to a virtual repeal. This was so not because of Congress; it was because of judges.

Decades ago, law-and-society scholars offered an explanation for that phenomenon, evaluating the structural forces at work in law-reform litigation that lead to one-sided judicial outcomes. Focusing on employment discrimination claims, Marc Galanter argued that, because employers are “repeat players” whereas individual plaintiffs are not, the repeat players have every incentive to settle the strong cases and litigate the weak ones. Over time, strategic settlement practices produce judicial interpretations of rights that favor the repeat players’ interests. More recently, Catherine Albiston went further, identifying the specific opportunities for substantive rulemaking in this litigation—as in summary judgment and motions to dismiss—and how the “repeat players,” to use Galanter’s term, take advantage of them.

In this Essay, drawing on my seventeen years on the federal bench, I attempt to provide a firsthand and more detailed account of employment discrimination law’s skewed evolution—the phenomenon I call “Losers’ Rules.” I begin with a discussion of the wholly one-sided legal doctrines that characterize discrimination law. In effect, today’s plaintiff stands to lose unless he or she can prove that the defendant had explicitly discriminatory policies in place or that the relevant actors were overtly biased. It is hard to imagine a higher bar or one less consistent with the legal standards developed after the passage of the Civil Rights Act, let alone with the way discrimination manifests itself in the twenty-first century. Although ideology may have something to do with these changes, and indeed the bench may be far less supportive of antidiscrimination laws than it was during the years following the laws’ passage, I explore another explanation. Asymmetric decisionmaking—where judges are encouraged to write detailed decisions when granting summary judgment and not to write  it—fundamentally changes the lens through which employment cases are viewed, in two respects. First, it encourages judges to see employment discrimination cases as trivial or frivolous, as decision after decision details why the plaintiff loses. And second, it leads to the development of decision heuristics—the Losers’ Rules—that serve to justify prodefendant outcomes and thereby exacerbate the one-sided development of the law.

Great article by Nancy Gertner [not a woman of color]. This is what happens when the federal courts have intentionally been filled with ideologically conservative, white male, Republican appointed federal judges, particularly since Ronald Reagan became president 34 years ago. Below is Gertner discussing this topic at the New York Law School’s Symposium titled “A View From the Bench — The Judges’ Perspective on Summary Judgment In Employment Discrimination Cases.” [go to the 38:38 mark]

Major reform is needed — not only to strengthen the Civil Rights Act of 1964, but to develop structural mechanisms that will eliminate racist and corrupt judges who intentionally ignore the law and deprive plaintiffs in employment discrimination cases of their right to a jury trial under the color of law.

Source: Nancy Gertner. “Loser’s Rules.” The Yale Law Journal Online. October 16, 2012.  http://yalelawjournal.org/the-yale-law-journal-pocket-part/procedure/losers%E2%80%99-rules/