Scaling the Pyramid: A Sociolegal Model of Employment Discrimination Litigation

Abstract

This chapter develops a sociolegal model of employment discrimination law in the United States. It addresses two competing characterizations of employment discrimination law: that it is an increasingly powerful and costly system of enforceable rights, on one hand, or a weak system that has largely symbolic effects, on the other. After articulating a legal constructionist framework for a systemic analysis of discrimination law, we summarize key developments in formal law, synthesize research on workplace discrimination, and analyze filings and dispositions data on discrimination litigation in federal courts from 1990–2001. When we apply Miller and Sarat’s concept of the pyramid of disputes (1981) to these data we see the system of discrimination litigation differently. While the most visible aspects of the system sustain an expansive view of discrimination law, the vast gulf between the base of potential discrimination claims and the small proportion of cases that receive favorable legal treatment supports the opposite view. A sociolegal model thus raises important avenues for new empirical study and begins to redefine the current debate. Rather than ask why there are so many discrimination claims, perhaps we should ask why there are so few?