The path to workplace'equality has become a difficult one to navigate. No one can safely rely upon the strategies developed in the 1960s and 1970s to integrate workplaces. Employers face legal and political challenges both for failing to diversify their workplaces and for diversity efforts to overcome that failure. Civil rights and women's rights advocates battle to hold on to the litigation victories of the past, even as they acknowledge judicial remedies' shrinking availability and limited efficacy in addressing many aspects of current-day equality. Anti-discrimination regulators contend with inadequate resources to carry out their traditional enforcement activities, as well as uncertainty about their appropriate role in addressing "second generation" forms of bias. Affirmative action is under attack from all sides, as simultaneously polarizing and ineffectual. Courts now convey mixed messages about the necessity and even the legality of employment programs that explicitly take race or gender into account.
Employers, advocates, and regulators are struggling to find a way forward amidst this uncertainty. Educational institutions are a focal point for this struggle. Because of their importance as gateways to citizenship and economic opportunity, they are at the center of controversy over the pursuit of racial and gender equity. Schools and universities have been involved in highly visible legal and political battles about discrimination and affirmative action. University administrators and faculty "change agents" face the daunting task of shepherding an institutional change process. Lawyers representing both universities and faculty have been called upon to guide diversity initiatives through this legal thicket. Advocates and legislators are looking for ways to improve public agencies' effectiveness in prompting universities to diversify their faculties.
Those on the front line must figure out how to achieve inclusive institutions when the problems causing racial and gender under-participation are structural, and they must do this under conditions of considerable legal ambiguity. They have learned that studies alone do not produce significant change, nor does providing support or legal protection for individual women and people of color. Workplace equality is achieved by connecting inclusiveness to core institutional values and practices. This is a process of ongoing institutional change. It involves identifying the barriers to full participation and the pivot points for removing those barriers and increasing participation. Those involved in this work must be able to articulate why under-participation is a problem that warrants sustained public attention. They must also find ways to locate responsibility for achieving inclusiveness with those in a position to have an impact.
This challenge calls for new normative frameworks to orient and justify diversity initiatives. These frameworks have to be sufficiently capacious to involve crucial stakeholders and encourage experimentation. Their implementation requires creative strategies, tools, and even new institutions that can jumpstart and sustain meaningful reform. To survive and thrive, these frameworks and strategies must also avoid the legal vulnerability plaguing racial or gender exclusive programs. Achieving workplace equality requires expanding beyond the anti-discrimination paradigm that has shaped intervention over the last thirty years.
Civil Rights and Discrimination | Labor and Employment Law | Law | Law and Gender | Law and Race
The Architecture of Inclusion: Advancing Workplace Equity in Higher Education,
Harv. J. L. & Gender
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1112