Rights on Trial

How Workplace Discrimination Law Perpetuates Inequality

Ellen Berrey, Robert L. Nelson, Laura Beth Nielsen

• Publisher: University of Chicago Press
• Year: 2017
• ISBN:
  9780226466996
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Gerry Handley faced years of blatant race-based harassment before he filed a complaint against his employer: racist jokes, signs reading "KKK" in his work area, and even questions from coworkers as to whether he had sex with his daughter as slaves supposedly did. He had an unusually strong case, with copious documentation and coworkers' support, and he settled for $50, 000, even winning back his job. But victory came at a high cost. Legal fees cut into Mr. Handley's winnings, and tensions surrounding the lawsuit poisoned the workplace. A year later, he lost his job due to downsizing by his company. Mr. Handley exemplifies the burden plaintiffs bear in contemporary civil rights litigation. In the decades since the civil rights movement, we've made progress, but not nearly as much as it might seem.On the surface, America's commitment to equal opportunity in the workplace has never been clearer. Virtually every company has antidiscrimination policies in place, and there are laws designed to protect these rights across a range of marginalized groups. But, as Ellen Berrey, Robert L. Nelson, and Laura Beth Nielsen compellingly show, this progressive vision of the law falls far short in practice. When aggrieved individuals turn to the law, the adversarial character of litigation imposes considerable personal and financial costs that make plaintiffs feel like they've lost regardless of the outcome of the case. Employer defendants also are dissatisfied with the system, often feeling "held up" by what they see as frivolous cases. And even when the case is resolved in the plaintiff's favor, the conditions that gave rise to the lawsuit rarely change. In fact, the contemporary approach to workplace discrimination law perversely comes to reinforce the very hierarchies that antidiscrimination laws were created to redress.
Based on rich interviews with plaintiffs, attorneys, and representatives of defendants and an original national dataset on case outcomes, Rights on Trial reveals the fundamental flaws of workplace discrimination law and offers practical recommendations for how we might better respond to persistent patterns of discrimination.

Part I

Introduction

Chapter One

Introduction

Putting Rights on Trial

Plaintiffs’ Stories

Gerry Handley’s Case against Manufacturing, Inc.

Gerry Handley (P14),1 a thirty-four-year-old African American computer operator, had worked for a large manufacturing company for nine years when, after being assigned to a new unit, he began to receive what he perceived as racial harassment from his supervisor and coworkers. He told us:

We worked in this big computer, like a lab. They had these big computers and every day, you know, we would run and maintain these computers like 24 hours, 7 days a week, and they had like a main console. And these guys that were like our supervisors, you know, you’d come in and they might, almost like on the board. . . . They’d have a picture of a black man eating like ribs, and he’d have like all types of sauce on his face, you know. And they would just all the time say stuff like the KKK, and just to me it was like a poisoned environment.

Mr. Handley said he suffered such treatment for three years before he complained to the Equal Employment Opportunity Commission (EEOC). We asked what finally led him to file a formal complaint:

GH: They would like always bring up these racial conversations and make these racial jokes. What I would do is I’d just ignore them. I wouldn’t laugh or I wouldn’t listen in, I would just sit there and they would try to pull me into the conversation asking me questions. They started talking about incest, and they started talking about blacks from slavery time, you know, they bred them and sold them, and they inbred them down in the south. And I’m from down south, and so they asked me, they told me a lot of the blacks had sex with their daughters and stuff like that, way back from the Caribbeans. And I would just sit there listening like, “Oh my God, I know they’re not saying this.” And the guy asked me, he said, did I ever have sex with my daughter. And so . . .

LBN: He asked you if you had sex with your daughter?

GH: Yeah.

LBN: And this is your boss or your manager?

GH: He was like my lead.

Mr. Handley’s case is unusual among employment discrimination lawsuits along several dimensions. First, he was joined by two other plaintiffs. Among federal discrimination claims, 90% are made by a single plaintiff. Second, Mr. Handley experienced overtly racist harassment that was well documented by fellow workers; his own records provided an unusually strong legal claim. Third, he ended up, according to official records, a “winner” at law. He settled with the manufacturer for $50,000, substantially higher than the median settlement ($30,000) in employment civil rights cases. Finally, Mr. Handley’s case is unusual in that he maintained his job with his employer and even won back the position from which he had been transferred when he complained.

Yet in other respects, Mr. Handley’s case was typical. He suffered many of the harms that other plaintiffs have incurred over the course of litigation. Tensions surrounding the lawsuit led to a divorce from his wife (who was white), and Mr. Handley lived out of his car during the course of the lawsuit. He did not trust his lawyer and felt shortchanged in the settlement, but he felt he had no choice but to accept it. Mr. Handley had to pay 20% of his settlement to his attorney, and his ex-wife claimed one-half of the remainder. While he regained his old job, he suffered a loss in job seniority, which may have contributed to his layoff just a year later during a major “downsizing.”

We asked whether Mr. Handley felt like anyone in the company supported him:

GH: These ten people that were supporting me in the department, they like ruined their lives. They like had to move and lost their jobs and had to relocate, and I could tell you, it was just horrible. It poisoned the whole environment. If I had to do it over again, I wouldn’t do it because I lost everything.

LBN: So what would you do if you had to do it over again?

GH: I would have took it. When he said that, you know, about my daughter, I would have just took it and kept my mouth shut and not tell anybody. Keep your mouth shut and just take it, you know, because if you fight back, it ain’t worth it. The legal system and the justice, it ain’t there.

Gerry Handley exemplifies the burdens that many plaintiffs bear in employment civil rights litigation. Despite several advantages, the Handley case illustrates plaintiffs’ personal risks in the contemporary American approach to workplace discrimination. The United States’ employment civil rights system is extensive and complex. It rests on constitutional protections, as well as on statutory prohibitions of discrimination. Those prohibitions were elaborated first by Title VII of the US Civil Rights Act of 1964—which prohibited discriminatory employment decisions based on race, sex, color, religion, or national origin—and later extended to include, significantly, disability and age as well as sexual harassment. Enforcement of these rights depends on regulation and litigation brought by those who believe they have been the targets of discrimination. These rights are intended to dismantle workplace discrimination across multiple hierarchies, the most notable of which, today, are race, sex, disability, and age.

As evident in Mr. Handley’s experience, the adversarial character of the antidiscrimination regime imposes considerable personal and financial costs upon individual plaintiffs. These costs appear to be especially high for African Americans and other people of color who bring claims of racial discrimination. Ironically, then, the groups for whom civil rights legislation was first and most urgently sought may now experience a unique form of inequality within the system of employment civil rights litigation.

Kristen Baker’s Case against GCo

Kristen Baker (P34), a thirty-three-year-old white woman, worked as an assistant buyer in the sales division of GCo, a relatively small, family-owned company that manufactures components for cars and other machinery. As Ms. Baker told us, in her first four years of employment she worked hard, took classes, and earned a certificate of expertise relevant to the work. In her fifth year, Daniel Miller, a male employee with six months longer tenure in the same job, was promoted to salesman despite the extra efforts Ms. Baker believed Mr. Miller had not undertaken. Ms. Baker approached the vice president with whom she had been working. As she recalled, he told her, “‘Daniel is a guy and he’s got three kids and a wife, and you are a girl and you married a doctor, so you obviously don’t need the income.’” Although she thought this was not fair, she made the best decision for her and her family, which was to continue working at the manufacturing plant.

Ms. Baker says she knew from the moment she was hired that the work environment might be, in her words, somewhat “salty.” She remembered being told that “‘the salesmen are men, and they are busy people and there is some cussing and stuff that goes on.’ And I said, ‘Well that’s fine, I can handle that. I can dish it out too.’ . . . It didn’t bother me, because it wasn’t about me.”

According to Ms. Baker, the workplace was increasingly professionalized when GCo was sold to a larger company. Ironically, though, the introduction of more formal human resources (HR) practices resulted in a rise of unprofessional behavior. The norms that were carefully policed when the company was family-run were harder to enforce in the new bureaucratic structure. Soon, the salesmen generally, and Mr. Miller in particular, were swearing more. And it was not just about venting frustration; what once could be explained away as rude or bawdy became obscene. Ms. Baker came to believe that the sexualized teasing was ruining her credibility with her vendors and clients.

Mr. Miller began bringing pornographic magazines and movies to work, Ms. Baker told us. He facilitated and even charged admission for pornography viewing sessions in the conference room at lunch. He showed Ms. Baker pictures of pornography depicting bestiality. She utilized the new HR policies and complained to her manager, documenting multiple complaints. There were other women in the department, but the ethic was one of gendered toughness and, while they would express frustration privately to Ms. Baker, they did not make formal complaints. Ms. Baker described what led her to take formal action outside the company:

There were two final straws. One of them was when he [had] a pornographic picture of a woman who had a watermelon shoved into her vagina. And [the woman in the photograph] was on a bed, and [she] had stiletto heels on. . . . Daniel took it in front of a group of my peers and said, “Oh, look Kristen, we would recognize you anywhere with those heels on.” I was humiliated, just humiliated and then reported it.

Shortly thereafter, in front of a client:

Daniel went in a room and pulled out this tray of chocolate dildos and took out one, a big one, and stuck it in my face, in my mouth, and said, “Here I know you like to suck on these. Suck on this.” And I just [said], “I can’t do this anymore.”

The facts of Ms. Baker’s situation are extreme. Although blatant discrimination may be more common than a number of modern commentators and scholars suggest, this case is one of the more outrageous examples of obvious sex discrimination in our data. Ms. Baker took all of the appropriate steps to stop the discrimination, making repeated reports to the appropriate workplace representatives, but nothing happened. After the chocolate dildo incident, she told us that she told her boss:

“Look: if this does not stop, if some action is not taken, I will file a lawsuit.” What wound up happening is that I just kept threatening and threatening and threatening. . . . I said, “You know, I keep talking to you...