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Have Alternative Resolution Practices Hampered Our Understanding of Discrimination in The Workplace?

Roughly 70% of all employment discrimination lawsuits are settled outside of court. Alternative resolution practices have made it easier for those discriminated against to move on with their lives, but alternative resolution proceedings do present a problem for those studying employment discrimination law, and the public. Settlements outside of court do not allow those studying this type of law to understand the implications of lawsuits, the federal courts opinion, and the type of complaints that are most commonly filed. Out-of-court settlements also strips the public of the knowledge associated with landmark cases. As a discriminated against party, it is now harder than ever to understand if the activity within the workplace is considered discriminatory.

Complaints that go to trial serve an important function. Trials, regardless of their nature, inform the public and offer insight into the inner-workings of the legal system. Trial transcripts and decisions not only help form public opinion, but serve as archetypes for similar cases going forward. When a complaint is settled through alternative resolution practices, that important information is no longer available. We, as the public, can not learn from such cases, because there simply is no information available.

Landmark Discrimination Cases

A case against Corning Glass Works in 1976 led to a landmark decision that employers could not discriminate against race or gender during the hiring process. In 1975, a case against Albermarle Paper Co. set into motion regulations that stated individuals who are able to prove discrimination are entitled to backpay from their former employer.

Sexual harassment was first considered a violation of Title VII after a landmark case against Meritor Savings Bank. The case against Meritor Savings Bank set a precedent for all further sexual harassment suits. It was found that sexual harassment creates a hostile work environment. 

In 1998 a complaint was filed against Sundowner Offshore Services alleging sexual harassment. The case was settled when it was decided that plaintiff was protected under Title VII of sexual harassment by a same-sex coworker. The landmark case was the first of its kind to note that both men and women  are protected against sexual harassment under Title VII.

These cases, of which only a few are mentioned, serve as an important education for plaintiffs, defendants, employment lawyers and the justice system. Not only do they serve as a precedent for future cases, but the information contained within the court files serve to educate the lawmakers, discrimination lawyers, and the public on what discrimination looks like in the 21st century.

Understanding 21st Century Discrimination

The move towards settlement has also hobbled efforts to better understand new forms of discrimination. It can be argued that, by and large, employers have moved past overt forms of discrimination. In generations past it was considered the norm to obviously and overtly discriminate based on race, gender or religious affiliation. Women were passed up for high powered positions because of their family obligations, and minority groups were overlooked time and time again due to racial profiling.

Employers, in many ways, have gotten savvier about their discrimination practices. We have moved into what is considered “second generation discrimination”. Second generation discrimination can be defined as discrimination that is more subtle and structural in nature. It doesn’t have the overtures of discrimination and it is not as easily proven. This type of discrimination, coupled with a move towards out-of-court settlement, has created a dangerous storm within the field of discrimination.

The female population, in particular, experiences a great deal of second generation discrimination, especially in male-dominated fields.  This type of discrimination often looks benign on the surface, and is often considered part of “company culture”. Greater credence is given to the values and needs of the male population who have long controlled and occupied a field, which can create a hostile environment rife with discriminatory practices against the female workforce.

The Bottom Line

While settling out of court may be beneficial to both the defendant and the plaintiff in employment discrimination cases, this new practice leaves a significant hole in our knowledge of what is going on in the workplace in present day, and how discrimination has morphed and changed over the last several decades. 

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Cite this article: Lynch, N. (2017). Have Alternative Resolution Practices Hampered Our Understanding of Discrimination in the Workplace?