Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory
![handle is hein.journals/hcrcl38 and id is 97 raw text is: Discrimination in Workplace Dynamics:
Toward a Structural Account of
Disparate Treatment Theory
Tristin K. Green*
INTRODUCTION
In the nearly forty years since Title VII of the Civil Rights Act was
enacted to combat discrimination in employment, we have seen a shift in
the ways in which discrimination operates in the workplace. As tradi-
tional social norms permitting overt racism and segregation give way to a
modern norm of egalitarianism, and as well-defined, hierarchical, bu-
reaucratic structures delineating clear paths for advancement within in-
stitutions give way to a globalized workplace of flexible governance and
movement between institutions, discrimination often operates in the
workplace today less as a blanket policy or discrete, identifiable decision
to exclude than as a perpetual tug on opportunity and advancement. It
often takes form in a fluid process of social interaction, perception,
evaluation, and disbursement of opportunity. It creeps into everyday im-
pressions of worth and assignment of merit on the job, lurking constantly
behind even the most honest belief in equality, perpetuating the very in-
justice that we decry.
A number of legal scholars have documented this shift in the nature
of discrimination and have identified its significance to the project of
achieving equity in the workplace.1 Some scholars have gone further to
critique the ability of various aspects of Title VII doctrine to account for
* Assistant Professor of Law, Seton Hall University School of Law. I would like to
thank Michelle Adams, Kathleen Boozang, Carl Coleman, Rachel Godsil, Linda Hamilton
Krieger, R. Erik Lillquist, and Charles Sullivan, as well as the participants in the faculty
summer lunch series, for valuable comments and criticisms. Thanks also to Lindsey Nei-
gler and Heather Oehlmann for outstanding research assistance and to the Seton Hall Law
School faculty scholarship fund for financial support of this project.
I See, e.g., Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias
Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161
(1995); Barbara Reskin, The Proximate Causes of Employment Discrimination, 29 CON-
TEMP. Soc. 319 (2000); Katherine V. W. Stone, The New Psychological Contract: Implica-
tions of the Changing Workplace for Labor and Employment Law, 48 UCLA L. REV. 519
(2001); Susan Sturm, Race, Gender, and the Law in the Twenty-First Century Workplace:
Some Preliminary Observations, 1 U. PA. J. LAB. & EMP. L. 639 (1998) [hereinafter Sturm,
Race, Gender, and the Law]; Susan Sturm, Second Generation Employment Discrimina-
tion: A Structural Approach, 101 COLUM. L. REV. 458 (2001) [hereinafter Sturm, Second
Generation Discrimination].](ViewImageLocal?handle=hein.journals/hcrcl38&div=8&collection=&method=preview&ext=.png&size=3)
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Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory
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