Thursday Thought: Employment Discrimination and the Myth of a Meritocracy

Posted By Katie Rogers , Apr 7, 2016

Employment Discrimination and the Myth of a Meritocracy

In an extremely tech-savvy and interconnected society, it is hard to imagine anyone feeling like they don’t have access to the law. After all, one can go online and use Google to search for almost anything and get instant results.  In fact, we have turned the search engine platform into a verb.

What time does the local coffee shop open? Google it.
What state has the most people? Google it.
Where can I find a lawyer? Google it.

 According to a Google search, the “American Dream” is the idea that that anyone, regardless of their race, ethnicity, gender, or personal background, can attain financial and personal success. It is the idea that the United States is a meritocracy where one can achieve success through sacrifice, risk-taking, and hard work -- not by chance alone. 

 For a society that believes in the “American Dream” and thinks all you have to do is work hard to achieve success– the United States labor market is still clearly vulnerable to racism and discrimination.  Today, in the United States, men on average earn more than women for the same work and white males earn more than minority males. Further, in employment discrimination cases, it’s increasingly difficult for members of traditionally disadvantaged groups to gain adequate legal representation.

 However, many people don’t recognize that, despite information being much more readily available than it was fifty years ago, many people in our country still struggle to gain access to the justice system. This sad reality is especially true for people who have been historically disadvantaged.

 Minorities have particularly struggled to gain adequate access to employment discrimination claims. Employment discrimination claimants are disproportionately likely to end up in court without legal representation. More than 24% of employment discrimination cases are filed pro se.  Further, when factors such as a claimants race, gender, or age are taken into account, the disparity in gaining representation is even greater.

 The question we have to ask ourselves in the legal field is: why? Why are people who are most likely to be discriminated against, and therefore in need of legal representation, also the most likely to not have lawyers? And what can we do to remedy the situation?

 Structural Issue Spotting

 The way society and the law are structured can be partially to blame for the disparity in representation. First and foremost, fewer resources are readily accessible to those in marginalized groups. This means that groups that are historically discriminated against tend to lack access and ability to locate and retain adequate counsel. For example, they may not be able to afford a lawyer or even know how to find one.  Further, people tend to live and work within the same economic and social class, and so they may not have anyone in their circles who they can reach out to help them find a lawyer.

 If a claimant is able to gain access to an attorney, employment discrimination cases are hard to win. Thus, even if one can find and afford a lawyer they have the burden of having to convince an attorney that their case is in fact credible.  Additionally, the fear of having to convince an attorney that the case is credible can hamper evidence gathering, thus giving the attorney a weak view of the case.

 Lastly, in recent years, the United States Supreme Court has created additional substantive, procedural, and fee-recovery structural barriers that make employment discrimination cases less viable. The aggregate effect of these structural issues disincentivizes attorneys from representing employment discrimination claimants in general.

 Psychological Impacts

 In addition to any structural barriers that may be present, employment discrimination claimants must also overcome psychological barriers associated with filing a discrimination claim.

 There are extremely personal costs associated with discrimination claims. Many victims hesitate to reach out because they feel others will react negatively to their claim. Also, many victims do not trust the legal system to deal with their claim fairly. The more they anticipate unfairness in court, the less likely they are to use the legal system to try to achieve justice.

 Members of historically disadvantaged groups are also concerned about their social identity. Fear of being associated and categorized by a specific stereotype can cause a legitimate victim to assume they will appear less credible in the eyes of a lawyer.

 Finally, our society believes in the American Dream, where you can achieve anything you want if you “pull yourself up by your boot straps” and work hard. This view endorses a meritocracy and the belief that racism is a thing of the past.  The more a person believes in this idea, the more likely they are to think a minority discrimination claim is fraudulent. This creates a psychological barrier that prevents one from seeing the merits in a case.

 Real World Application

 There is no easy fix or quick solution for eliminating the disparity in employment discrimination claims and the relative lack of legal representation for minorities.  But, there are some things that legal professionals can do to help solve the problem.

 The way in which a lawyer speaks or interacts with a potential client can go a long way towards helping the client overcome any psychological barriers they may have. Active listening and empathizing with your client can put them at ease and help rid them of their social identity fears.

 As with any client, being especially sensitive to their specific needs and reflecting them back can alleviate any worry about personal costs. This means reiterating back to the client what they said in their own words, which shows that you are listening and understand their concerns.

 Further, by listening to your client and understanding why discrimination claimants experience difficulty in gaining adequate legal representation, we can start to put policies into place that will improve access to the justice system.

 Finally, in the legal profession, increasing diversity and using scientifically grounded approaches to client interaction can help prevent employment discrimination cases from being written off.

 Charlotte Bunch, a well-known human rights activist once said: “Sexual, racial, gender…and other forms of discrimination…cannot be eliminated without changing [the] culture.” We cannot eliminate discrimination in employment claimants until we start to change the culture of the legal profession.

 For more information on this topic: Cheryl R. Kaiser & Victor D. Quintanilla, Access to Counsel: Psychological Science Can Improve the Promise of Civil Rights Enforcement, 1 Pol’y Insights From Behav. and Brain Sci. 95 (2014).