Race, Gender, and the Law in the Twenty-First Century Workplace: Some Preliminary Observations
This article documents the inadequacy of the prevailing legal approaches to discrimination in the workplace based on their failure to take account of both the emerging dynamics of organizational governance and the patterns of exclusion and bias that operate within these organizational structures. It then lays out the outline of a more structural and dynamic approach to regulation that has the potential to respond to the dynamic, interactive, and unstable conditions in which employment practices increasingly occur. The article begins by offering examples from three different workplaces that illustrate the gap between discrimination law and the emerging dynamics of workplace decision making. It then identifies six major areas of disconnect between current regulatory approaches and emerging conditions: (1) Legal doctrine and practice focus on top-down, bureaucratic decision making. In many organizations, power over employment decisions has been more decentralized and dispersed. (2) Law and theories of regulation tend to focus on either individuals or organizational policies as the locus of bias, to the exclusion of groups and structures that often play more central roles in causing individual exclusion based on race and gender. Teams, committees, panels, and other groups frequently determine both the day-to-day experience and the outcome of pivotal decisions in the workplace. (3) Current emphasis on discrete employment decisions fails to account for the increasingly embedded and interactive character of employment decision making. (4) By treating conflict, particularly racial and gender conflict, as aberrational and inevitably destructive, current regulatory approaches fail to reflect the day-to-day dynamics of workplace interaction. This approach polarizes racial and gender conflict when it does arise, and ignores the potential of conflict as a way of routinizing surprise. (5) Legal regulation within the prevailing paradigm treats racial and gender discrimination as an issue of individual fault and individual causation, reflected in conscious or unconscious motivation. Racial and gender bias is often reflective of and affected by deeper patterns of institutional dysfunction around power, conflict and decision making. (6) Legal intervention often occurs after the fact in reaction to crises and problems, and fails to connect legal norms to the complex internal dynamics of organizations. As organizations become more fluid and power is exercised through group interaction and decision making, it becomes necessary to experiment with structural approaches to legal regulation that focus on systems of decision making both within and across the boundaries of workplaces. This approach would construct tiered and interactive processes of regulation that would encourage the continual rearticulation and implementation of legal norms into organizational practive and legal discourse. It would explicitly employ organizational incentives and the interaction among legal and nonlegal actors in the project of creating lawful, inclusionary practices within institutions. The challenge becomes one of forging dynamic relationship between the role of law in enforcing minimum standards of conduct through sanctions and the role of law in creating incentives for organizations to structure fair, accountable, and effective systems for exercising discretion.