Second Generation Employment Discrimination: A Structural Approach
This article explores current and emerging regulatory approaches to "second generation" manifestations of workplace bias. Second generation bias involves structures and patterns of interaction within the workplace that, over time, exclude members of non-dominant groups. This complex and dynamic type of problems poses a serious challenge for a first generation system that depends on judicial or legislative elaboration of rules, enforced by judicial sanctions for deliberate violations. Over the last decade, an interesting and complex regulatory pattern has emerged to address second generation bias. Multiple public, private and nongovernmental actors are actively and interactively developing systems to address issues such as sexual harassment and the glass ceiling. Each of these institutional actors has begun to approach these questions as posing essentially issues of problem solving. Each has, to varying degrees, linked their anti-bias efforts with the more general challenge of enhancing institutional capacity to manage complex workplace relationships. These multiple actors have, perhaps unwittingly, begun to carve out distinctive roles and relationships that form the outlines of a dynamic regulatory system for addressing second generation discrimination. This article offers a framework that makes visible these emerging and converging patterns for addressing second generation discrimination problems in the judiciary, the workplace, and mediating institutions. It explores the potential for a judicially de-centered, holistic, and dynamic approach. This new regulatory approach shifts the emphasis away from primary reliance on after-the-fact enforcement of specific legal rules. Instead, normative elaboration occurs through a fluid, interactive relationship between problem solving within specific workplaces and the courts, mediated by non-governmental actors. In this framework, compliance is defined, achieved through, and evaluated in relation to improving institutional capacity to identify, prevent, and redress exclusion, bias, and abuse. The article documents examples of this structural approach in the workplace, the courts, and the non-governmental sector, and then extrapolates from these examples to offer a starting point for identifying how internal workplace processes can meet concerns about accountability, legitimacy and effectiveness. In particular, it provides case studies of Home Depot, Intel, and Deloitte & Touche, and analyzes how these initiatives achieve accountability and effective remediation of second generation problems. It also addresses the counter-tendencies and patterns that undercut the viability of this structural approach, and proposes some preliminary steps that encourage the information pooling, capacity building, and accountability mechanisms needed to more fully realize the potential inchoate in the Supreme Court's structural jurisprudence. These proposals highlight the importance of professional and institutional gatekeepers, such as insurance companies, research consortia, human resource practitioners, advocacy organizations, and lawyers, in performing these crucial roles within the emerging regulatory system.