How Do Organizational Environments and Mandatory Arbitration Shape Employment Attorney Case Selection? Evidence from an Experimental Vignette

• DOI: http://doi.org/10.1111/irel.12217
• Published date: 01 October 2018
• Date: 01 October 2018
• Author: Mark D. Gough

How Do Organizational Environments and

Mandatory Arbitration Shape Employment

Attorney Case Selection? Evidence from an

Experimental Vignette

*

MARK D. GOUGH

Using a novel experimental vignette design, this study shows how firm adoption

of equal employment opportunity (EEO) policies, internal dispute resolution pro-

cedures, occupational segregation, and use of mandatory arbitration agreements

affect employment attorney perceptions of employment discrimination claims.

Findings reveal the organizational environment of a claim can signal compliance

with antidiscrimination law and the use of mandatory arbitration reduces the

expected value of a claim and willingness to accept it for representation. These

findings contribute to the understanding of antidiscrimination law as a social sys-

tem by showing organizational environments and mandatory arbitration clauses

predict attorney case assessment.

Introduction

Statutory employment laws are crucial to the determination of the rights and

protections of contemporary workers (Colvin 2012; Piore and Safford 2006).

The Civil Rights Act of 1964, and specifically Title VII, was an early employ-

ment law landmark, prohibiting discrimination on the basis of race, color, reli-

gion, sex, or national origin. The Age Discrimination in Employment Act

(ADEA), Pregnancy Discrimination Act (PDA), Americans with Disabilities

Act (ADA), Family Medical Leave Act (FMLA), and an array of legislation

passed at the state level have created a vast constellation of protections for

*The author’saffiliation is Pennsylvania State University, University Park, Pennsylvania. E-mail:

mdg228@psu.edu. The data collection efforts were supported by a research grant to Cornell University by

the Robert L. Habush Endowment of the American Association for Justice. The author gratefully acknowl-

edges the contributions of the National Employment Lawyers Association (NELA) to this article by provid-

ing access to its membership. For information about NELA, visit www.nela.org. Further, the author owes a

debt of gratitude to the individual attorney members comprising NELA, who generously donated their time

and made this analysis possible and would also like to thank Rhonda Clouse and committee members

Alexander Colvin, Harry Katz, and Stewart Schwab for their valuable oversight and feedback.

INDUSTRIAL RELATIONS, DOI: 10.1111/irel.12217, Vol. 57, No. 4 (October 2018).

©2018 Regent s of the Univers ity of Calif ornia Published by Wiley Periodicals, Inc., 350 Main Street,

Malden, MA 02148, USA, and 9600 Garsington Road, Oxford, OX4 2DQ, UK.

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workers. Annually, workers file almost 100,000 discrimination charges with

the Equal Employment Opportunity Commission (EEOC 2017), approximately

30,000 employment cases in federal courts (Eisenberg 2015), and an even

greater number of employment-related claims in state courts (Cohen and Har-

bakek 2011).

Scholars in industrial relations, sociology, and law have long viewed antidis-

crimination law, and the law broadly conceived, as a construction produced at

the nexus of competing actors, fields, and institutions (Albiston 2005; Berrey,

Hoffman, and Nielsen 2012; Dunlop 1958). In this way, scholars have shown

that antidiscrimination law both shapes and is shaped by employee resistance

to being classified as a “victim,”fear of retaliation, and uncertainty as to what

qualifies as illegal behavior (Berrey, Hoffman, and Nielsen 2012); employer

resources and policy adoption (Bisom-Rapp 1999; Colvin 2003; Edelman

1992; Galanter 1974; Kalev, Dobbin, and Kelly 2006); employee resources

(Colvin 2011; Sandefur 2008); and by the jurisprudence and institutional char-

acteristics of the EEOC (Hirsch 2008; Hirsch and Kornrich 2008), arbitration

(Colvin 2011; Colvin and Gough 2015; Colvin and Pike 2014) and civil courts

(Clermont and Schwab 2004, 2009; Edelman 2016).

This article expands on this literature by exploring how the institutional

environment of antidiscrimination claims affects plaintiff-side attorney behav-

ior using a novel research design. Unlike criminal claims, there is no right to

counsel when attempting to vindicate statutory employment rights; workers

must privately arrange and fund representation. In a regime centered on indi-

vidual enforcement of statutory rights, plaintiff attorneys are significant actors

who influence employee access to justice and the ability of antidiscrimination

law to produce social change (Sandefur 2008; Taylor Poppe and Rachlinksi

2016). Using 992 responses to a randomized vignette obtained from practicing

plaintiff-side employment attorneys, this analysis contributes to industrial rela-

tions and law and society research by examining the way institutional factors

influence attorney perceptions of claim merit, evaluations of settlement value,

and willingness to represent a client in employment discrimination cases.

Literature Review

What determines whether an attorney is willing to take on a case for an

employee who comes to him or her seeking representation? Like personal

injury lawyers, plaintiff-side employment attorneys operate primarily on a con-

tingency fee basis, where attorneys do not charge clients by the hour but are

instead paid a percentage of the amount recovered (Kritzer 1997, 2004; Selmi

1996; Trautner 2011). A 1999 survey of attorney members of the National

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