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That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law

By Katie R. Eyer. Full text here.

Empirical studies have shown that discrimination litigants face difficult odds. Indeed, less than five percent of all discrimination plaintiffs achieve any form of litigated relief. These odds are far worse than those faced by virtually any other category of federal litigants and extend to every conceivable procedural juncture, from motions to dismiss to post-verdict appeals. So what explains these results?

Surprisingly, there have been few robust attempts to answer this core question. Thus, while we have extensive data demonstrating that discrimination litigants fare poorly in the courts, we know little about why. The Article—drawing on a heretofore underexplored area of the psychological literature regarding how and why people make attributions to discrimination—attempts to begin the process of addressing this question by developing a theoretical framework for understanding the difficulties that discrimination litigants face.

What this framework (and the underlying psychological literature) suggests is that the difficulties that discrimination litigants face are likely to be deeply intractable. Indeed, it appears that a cluster of widely shared American background beliefs—regarding the role of hard work and skill in individual success, the rarity of discrimination in today’s society, and the limited forms discrimination can take—have a substantial (and limiting) effect on assessments of discrimination. Thus, most people do not “see” discrimination, in all but the most extreme and explicit circumstances.

These findings have profound implications for contemporary recommendations for anti-discrimination reform. Most notably, they suggest that traditional recommendations for reform—which have focused on doctrinal reform of the anti-discrimination laws—are unlikely to significantly modify the difficult odds that discrimination litigants currently face. As a result, the findings of psychology scholars suggest a need to look for alternatives that may be less susceptible to the effects of American background beliefs, including alternatives that may be outside the scope of traditional anti-discrimination law (for example, just cause claims or Family and Medical Leave Act-style laws). The Article thus concludes by providing a preliminary discussion of the potential benefits and drawbacks of such “extra-discrimination remedies.”