Legal Discrimination: Empirical Sociolegal and Critical Race Perspectives on Antidiscrimination Law

Posted: 18 Nov 2016

See all articles by Lauren B. Edelman

Lauren B. Edelman

University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

Aaron C. Smyth

University of California, Berkeley - Jurisprudence and Social Policy Program

Asad Rahim

University of California, Berkeley - Jurisprudence and Social Policy Program

Date Written: October 2016

Abstract

The topic of workplace discrimination has received considerable attention in both empirical sociolegal scholarship and critical race theory. This article reviews the insights of both bodies of literature and draws on those insights to highlight a critical mismatch between the assumptions of antidiscrimination jurisprudence and extant knowledge about discrimination in the workplace. Antidiscrimination jurisprudence assumes that most discrimination is intentional, that legal rights provide an effective mechanism for redress of discrimination, and that employers respond rationally to legal sanctions. In contrast, the empirical sociolegal and critical race literatures show that racism and sexism tend to be hidden within social structures, that there are many obstacles to the successful mobilization of legal rights, and that organizational response to law is characterized by symbolic compliance that is often ineffective. We conclude that because law fails to grasp the reality of workplace discrimination, it condones racial and gender inequality and creates legal discrimination.

Suggested Citation

Edelman, Lauren B. and Smyth, Aaron C. and Rahim, Asad, Legal Discrimination: Empirical Sociolegal and Critical Race Perspectives on Antidiscrimination Law (October 2016). Annual Review of Law and Social Science, Vol. 12, pp. 395-415, 2016, Available at SSRN: https://ssrn.com/abstract=2870900 or http://dx.doi.org/10.1146/annurev-lawsocsci-110615-085234

Lauren B. Edelman (Contact Author)

University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-642-4038 (Phone)
510-643-6171 (Fax)

Aaron C. Smyth

University of California, Berkeley - Jurisprudence and Social Policy Program ( email )

Berkeley, CA 94720-7200
United States

Asad Rahim

University of California, Berkeley - Jurisprudence and Social Policy Program ( email )

Berkeley, CA 94720-7200
United States

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