REVIEWS
“With this lone comprehensive and empirically supported critique of our national celebration of civil rights, Edelman argues persuasively that we live not in a post–civil rights society—as many have claimed—but a ‘symbolic civil rights society,’ an age committed to the trappings of civil rights but little more. Working Law is a distinct, original, and important interpretation of the long-term trajectory of civil rights policy. While most view civil rights policy as a mix of some meaningful implementation and much resistance to it, Edelman makes the striking case that much of the path of change is driven by one force: the interests of major organizational employers and, specifically, the strategies of their managers to inoculate employment practices from challenge. It’s hard to overstate the significance of this work.”
— Charles R. Epp, author of Pulled Over: How Police Stops Define Race and Citizenship
“A brilliant, theoretically rich, and empirically grounded account of how law shapes and is shaped by the organizational context in which it is applied, Working Law challenges some of our most deeply held assumptions about the causes of and solutions to race and gender inequality in the contemporary workplace.”
— Devon Carbado, University of California, Los Angeles, author of Acting White? Rethinking Race in “Post-Racial” America
“Working Law brings together and extends substantially thirty years of meticulous research to offer a powerful explanation for how and why equality-promoting civil rights legislation may accomplish little. A comprehensive, definitive statement of the mechanisms of ‘legal endogeneity’ theory, it is foundational—a must read and clarion call to scholars, policymakers, judges, and civil rights advocates.”
— Robin S. Stryker, University of Arizona
“Edelman’s Working Law is simply superb. It breaks through the barriers that too often separate the work of the academy from the lived experience of lawyers and judges. On a personal note, it provides a thoughtful answer to the phenomenon I observed when I was on the bench—why employment law was singularly ineffective in addressing modern discrimination, why courts were satisfied with token compliance with organizational antidiscrimination programs and policies, ignoring the real face of discrimination. It is not often that a scholarly book creates an ‘aha’ moment for a legal practitioner, especially a former judge. This is surely one of them. It should be part of every judge’s training, and on every employment law professor’s reading list.”
— Nancy Gertner, former United States District Judge for the District of Massachusetts
"Why, after more than half a century since the passage of the Civil Rights Act of 1964, do we continue to observe racial and gender discrimination in the workplace? This is the central question in Edelman's Working Law: Courts, Corporations, and Symbolic Civil Rights . . . [The book] makes for a solid addition to just about everyone's bookshelf."
— Law and Politics Book Review
"Working Lawmakes a landmark contribution to understanding the relationship between law and organizations. It also raises vitally important questions for future research. [...] More generally, Working Law strongly suggests that a fundamental shift in the approach of employment discrimination law toward more systemic factors and less focus on the agency of individual bad actors would be helpful. And this, many employment discrimination scholars would argue, is long overdue."
— Catherine R. Albiston, Law & Social Inquiry
"Lauren Edelman’s Working Law is remarkably relevant to the study of financial regulation. In particular, three factors that Edelman identifies as specifically contributing to legal endogeneity and symbolic compliance—ambiguous law, a lack of clear outcome measures, and the presence of legal intermediaries—are especially salient in the context of financial regulation."
— Kimberly D. Krawiec, Law & Social Inquiry
"Lauren B. Edelman’s Working Law: Courts, Corporations, and Symbolic Civil Rights(2016) offers an empirically supported theory of legal endogeneity, explaining how managerialized ideas of compliance with employment discrimination legislation diffuse in organizational fields and shape judicial doctrine. Managerialization and legal endogeneity explain how and why equality-promoting civil rights legislation may do little to reduce workplace inequalities."
— Robin Stryker, Law & Social Inquiry
TABLE OF CONTENTS
Chapter 1. Introduction
DOI: 10.7208/chicago/9780226400938.003.0001
[Civil Rights Act of 1964;symbolic structures;legal endogeneity;equal opportunity;organizations;discrimination;judicial deference;race;gender;law;work]
Chapter 1 poses the question of why gender and racial inequality persist in work organizations more than a half century after the passage of the landmark 1964 Civil Rights Act. The chapter addresses this question by introducing legal endogeneity theory, which suggeststhat forms of compliance that arise in work organizations are often more symbolic than substantive and yet tend to be incorporated into formal legal understandings of compliance. Civil rights law provides an example of how law becomes endogenous. Employers have responded to ambiguous civil rights law by creating symbolic structures, policies and procedures that symbolize attention to civil rights. The symbolic value of these structures, however, does not depend on their effectiveness in protecting civil rights. As symbolic structures become increasingly common, they come to be equated with nondiscrimination even though in many cases they mask discrimination and help to perpetuate inequality. Eventually even lawyers and judges infer nondiscrimination from the mere presence of these structures. When judges defer to organizational forms of compliance, law becomes endogenous or shaped within the social fields it regulates. This chapter introduces the book and provides an overview of the empirical data and analyses that form the basis for the argument.
Chapter 2. The Endogeneity of Law
DOI: 10.7208/chicago/9780226400938.003.0002
[legal endogeneity;law;organizations;organizational fields;legal fields;neoinstitutional theory;legalization;managerialization;symbolic compliance;organization theory;legal environment]
Chapter 2 provides an overview of legal endogeneity theory, the general theory of law and organizations advanced in this book. Drawing on neoinstitutional organization theory, the chapter describes the interplay between legal fields and organizational fields. As legal and organizational actors interact, there is a blurring of logics between these fields, leading to the legalization of organizations and the managerialization of law. The chapter then introduces the six stages through which law becomes endogenous, which are: (1) ambiguous law, (2) professional framing of the legal environment, (3) diffusion of symbolic structures, (4) managerialization of law, (5) mobilization of symbolic structures, and (6) legal deference to symbolic compliance. After discussing each stage generally, the chapter briefly discusses its relevance to the study of equal employment opportunity (EEO) law. The remainder of the book is organized according to the six stages of legal endogeneity.
Chapter 3. Ambiguous Law and the Erosion of the Progressive Vision in the Courts
DOI: 10.7208/chicago/9780226400938.003.0003
[legal ambiguity;equal employment opportunity (EEO);courts;civil rights;disparate impact;disparate treatment;sexual harassment;mandatory arbitration;motion to dismiss;summary judgment]
Chapter 3 provides an overview of equal employment opportunity (EEO) law, emphasizing the role of the judiciary in eroding workplace civil rights. Although executive branch efforts led to early progress, political conflicts and legal ambiguity meant that the courts would play a major role in determining the meaning of EEO law. The courts initially developed two theories of discrimination: disparate impact doctrine, a more progressive vision that focuses on the adverse effects of policies and disparate treatment doctrine, a more conservative vision of that envisions discrimination as the intentional acts of biased perpetrators. Over time, the courts narrowed disparate impact doctrine with the result that most aggrieved employees must prove intentional discrimination in order to prevail. The birth of sexual harassment as a form of sex discrimination expanded the realm of civil rights protections but over time the courts made it easier for employers to prevail. Finally, the courts issued a series of procedural rulings that introduced new obstacles for employees seeking to challenge discrimination by condoning mandatory arbitration clauses, facilitating employers’ motions to dismiss and motions for summary judgment, and narrowing the grounds for class action lawsuits. These legal developments set the stage for the evolution of legal endogeneity.
Chapter 4. Professional Framing of the Legal Environment
DOI: 10.7208/chicago/9780226400938.003.0004
[compliance professionals;legal environment;risk;law;organizations;human resource;in-house counsel;management consultants;wrongful termination;equal employment opportunity]
Chapter 4 explores the role of compliance professionals in framing the legal environment. Organizations exist in a complex legal environment in which the dissemination of information about law is neither simple nor straightforward. Most organizational officials learn about law not by reading statutes, cases, and administrative regulations but rather through compliance professionals who work within organizations or as consultants to organizations: for example, human resource professionals, diversity officers, in-house counsel, and management consultants. These compliance professionals become interpreters of the legal environment and filters through which information about law must pass to become relevant to organizational decision making. Further, they heighten the salience of the legal environment by framing law as risk, emphasizing an increasing number of lawsuits against employers and highlighting particularly large awards to plaintiffs. The chapter examines professional framing in the context of wrongful termination and equal employment opportunity law generally.
Chapter 5. The Diffusion of Symbolic Structures
DOI: 10.7208/chicago/9780226400938.003.0005
[symbolic compliance;symbolic structures;organizations;Civil Rights Act of 1964;equal employment opportunity (EEO);women;minorities;antidiscrimination;cosmetic compliance]
Chapter 5 explores the rise of symbolic compliance in response to law. Symbolic structures such as antidiscrimination policies offer a mode of demonstrating compliance while maintaining sufficient flexibility to advance business goals. Symbolic structures may be merely symbolic, both symbolic and substantive, or somewhere in between merely symbolic and substantive. Merely symbolic structures are cosmetic forms of compliance that do little or nothing to effectuate legal ideals within organizations. Structures that are both symbolic and substantive are more effective in bringing organizations closer to legal ideals. But irrespective of their effectiveness, symbolic structures demonstrate attention to law and legal principles. Because these structures are law-like in form, they afford organizations the possibility of demonstrating attention to law while adapting or maintaining practices that meet business prerogatives. In the wake of the Civil Rights Act of1964, organizations sought to demonstrate compliance by creating formal rules or policies that looked like statutes, offices that looked like administrative agencies, and grievance or appeals procedures that looked like courts. Over time, these symbolic structures came to be identified with equal employment opportunity (EEO) compliance, irrespective of their effectiveness in protecting women and minorities.
Chapter 6. The Managerialization of Law
DOI: 10.7208/chicago/9780226400938.003.0006
[symbolic compliance;managerialization;compliance professionals;internal dispute resolution;mandatory arbitration;employment practices liability insurance;diversity;discrimination;race;gender;management]
Chapter 6 suggests that once symbolic compliance is in place, it becomes the vehicle through which law is managerialized, or infused with managerial values. As compliance professionals implement law, they encounter instances in which legal rules and business norms come into conflict. Each of these instances becomes an opportunity for compliance professionals to interpret ambiguous legal rules in ways that move law closer to business norms and values. Employers managerialize law by decoupling their policies from practices so that policies against discrimination are on the books while discriminatory practices persist; using internal dispute resolution to divert discrimination complaints from the courts; navigating around legal risk through mandatory arbitration or employment-at-will clauses or purchasing employment practices liability insurance; or reframing the ideals of equal employment opportunity (EEO) law in terms of diversity, which tends to undermine attention to race and gender. There is, of course, variation across organizations and compliance professionals. Some compliance professionals become internal advocates for EEO ideals so that symbolic structures engender substantive change. But often, EEO law is reframed in ways that render it largely consistent with principles of good management but less effective in protecting the rights of women and minorities.
Chapter 7. The Mobilization of Symbolic Structures
DOI: 10.7208/chicago/9780226400938.003.0007
[managerialization;legal consciousness;lawyers;legal mobilization;symbolic structures;equal employment opportunity (EEO);law]
Chapter 7 examines the process by which symbolic structures become indicia of nondiscrimination, not just within organizations but also in the realm of law. As these structures become more prevalent, people increasingly infer nondiscrimination from the mere presence of these structures, a process referred to as the managerialization of legal consciousness. The managerialization of legal consciousness in turn affects whether and how aggrieved employees pursue legal redress, how plaintiffs’ lawyers frame legal complaints, and how management lawyers frame their defenses. As employees and plaintiffs’ lawyers mobilize their legal rights, management lawyers countermobilize symbolic structures, framing them as constituting compliance with equal employment opportunity (EEO) law. Plaintiffs’ lawyers often fail to challenge this framing and thereby reinforce the association of symbolic structures with EEO compliance. Thus, even though litigation should bring out deficiencies in organizations’ symbolic structures, it tends instead to strengthen their symbolic value and to obscure the potential of managerialization to undermine EEO law.
Chapter 8. Legal Deference to Symbolic Compliance
DOI: 10.7208/chicago/9780226400938.003.0008
[legal endogeneity;equal employment opportunity;organizations;courts;EEOC;amicus briefs;symbolic compliance;Faragher;Ellerth;law;Faragher affirmative defense]
Chapter 8 closes the legal endogeneity cycle by showing how organizational forms of compliance with equal employment opportunity law came to be favored in the federal courts, were subsequently endorsed by the EEOC, and eventually—thirty-four years after the passage of Title VII—were formally condoned, in the sexual harassment context, by the US Supreme Court. Although no law mandated that organizations create formal antidiscrimination policies and other symbolic structures, the courts came to equate the presence of these structures with an absence of discrimination. The EEOC later began to recommend these structures in their guidelines. The US Supreme Court did not explicitly address the issue of whether symbolic structures would insulate employers from liability until 1998 and then only in the hostile work environment context. But following the model set by the lower courts and the advice of amicus briefs filed by groups representing employers, the US Supreme Court held in the Faragher and Ellerth decisions in 1998 that antiharassment policies and grievance procedures would constitute an affirmative defense to allegations of hostile work environment sexual (and later racial) harassment. Law becomes endogenous when official legal bodies like courts, legislatures, and administrative agencies defer to organizations’ symbolic compliance structures.
Chapter 9. Symbolic Civil Rights and the Endogeneity of Law
DOI: 10.7208/chicago/9780226400938.003.0009
[symbolic compliance;legal endogeneity;civil rights;law;organizations;judges;lawyers;symbolic structures;financial misconduct;prison reform]
Chapter 9 explores the policy implications of legal endogeneity, the potential for legal endogeneity beyond the civil rights context, and the theoretical significance of legal endogeneity for the study of both law and organizations and law and social change. It suggests that we have become a symbolic civil rights society in which citizens and legal actors alike judge organizations by the presence of their symbols, interrupting the potential of law to combat longstanding patterns of racial and gender injustice. Legal endogeneity theory helps to explain why civil rights law has not ended racial and gender inequalities at work. To combat legal deference to symbolic compliance, judges should engage in careful scrutiny of organizations’ symbolic structures, plaintiffs’ lawyers should challenge ineffective symbolic structures, and management lawyers and human resource professionals should work to ensure that these structures are effective. Work by other scholars suggests that legal endogeneity occurs in many other legal arenas including organizational financial misconduct and prison reform. If symbolic compliance generally evolves where law seeks to disrupt long-standing patterns of power and privilege, then legal endogeneity is most likely to undermine the rights of the have-nots precisely where law promises the greatest social change.
