Publication Date

2008

Document Type

Article

Abstract

Employment discrimination class action suits are part of a new wave of structural reform litigation. Like their predecessors - the school desegregation cases in the 1950s, the housing and voting inequalities cases in the 1960s, prison conditions suits in the 1970s, and environmental lawsuits since then - these are systemic challenges to major institutions affecting large segments of the public. This article explores the effectiveness of various employment discrimination remedies in reforming workplace cultures, promoting corporate accountability, and implementing real diversity.

Reviewing the architecture and aftermath of consent decrees in five major employment discrimination cases - the cases against Shoney's, Texaco, Home Depot, Mitsubishi, and Coca-Cola - the article evaluates the ways in which consent decrees have changed over time and the lessons learned from the implementation of these settlements. Mega-Cases identifies several hallmarks of more promising settlements and then compares the features of consent decrees in those landmark cases with recent social science literature on remedies that do - and do not - make a difference in workplace inclusivity. Emerging research in organizational sociology has found that, strikingly, diversity training has a negligible effect on the admission of women and minorities to the ranks of corporate management, but that structures requiring accountability (such as affirmative action plans, diversity managers and financial incentives) are effective in increasing diversity.

The final part of the article addresses resistance to change. Unsurprisingly, in those situations in which corporations seemed most committed to changing their cultures regarding equity and diversity, the consent decrees seemed to work most effectively. The question is what to do about corporations and executives who seem unwilling to change - especially if they don't have the resources of a mega-corporation and particularly if diversity training doesn't seem to produce results. An answer may be to develop an understanding that diversity is good for business. The socio-economic literature makes a strong case that employee diversity creates very favorable economic consequences for corporations. While most major corporations seem aware of the economic benefits of having their workforces resemble the demographics of the nation, smaller companies are less responsive to the need for diversity.

One danger of promoting the market support for diversity is that exclusively economic arguments can overshadow the moral or philosophical case for gender and racial justice. A very legitimate question is whether one of the more promising methods of promoting diversity is effective only at the risk of losing the soul of the anti-discrimination principle?

Publication Title

Boston College Law Review

Volume

49

Issue

2

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