Race and Determinations of Discrimination: Vigilance, Cynicism, Skepticism, and Attitudes about Legal Mobilization in Employment Civil Rights

• Published date: 01 September 2017
• DOI: http://doi.org/10.1111/lasr.12276
• Date: 01 September 2017

Race and Determinations of Discrimination:

Vigilance, Cynicism, Skepticism, and Attitudes about

Legal Mobilization in Employment Civil Rights

David McElhattan

Laura Beth Nielsen

Jill D. Weinberg

What factors affect whether ordinary citizens believe that workplace decisions

involving African-American employees rise to the level of discrimination?

When do observers believe targets of possible race discrimination should con-

sider mobilizing the law? We use a factorial design vignette study adminis-

tered to a nationally representative sample of 2,087 ordinary people to

address these questions. The “vigilance hypothesis” predicts that minorities

will be more likely to perceive discrimination than whites. Our analysis par-

tially confirms this: African Americans perceive anti-Black discrimination at

higher rates than do whites and Latinos, while Latinos do not show a signifi-

cant difference from whites. Where respondents believe discrimination

occurred, we analyze what influences whether respondents might recom-

mend legal mobilization. The “cynicism hypothesis” suggests that people of

color may be less likely to favor using law. We find, however, that African-

American and Latino respondents express more confidence in civil litigation,

compared to whites.Further, AfricanAmericans express the strongest support

for legal mobilization(recommending thata “friend” contact an attorney), while

whites and Latinosdo not differ in mobilization recommendations.

Title VII of the 1964 Civil Rights Act prohibits race discrimi-

nation in employment, protecting workers from discrimination

on the basis of their race (among other characteristics) in hiring,

firing, promotion, and compensation decisions. Civil litigation by

We are grateful to Robert L. Nelson, Jeremy Freese, Liora Isra€

el, Kangsan Lee, and

Gabrielle Ferrales for their insight and generous support. We thank the anonymous

reviewers at LSR for their invaluable feedback. We also thank the members of the Ameri-

can Bar Foundation faculty and research committee who helped us with this project

including: Robert Sampson, John Hagan, Michael McCann, Stuart Macaulay, Elizabeth

Mertz, Carol Heimer, and Janice Nadler. We give special thanks to Kat Albrecht and Anya

Degenshein for their research assistance. The research benefited from presentations at the

Law and Society Association meetings in Boston and Minneapolis, the Empirical Critical

Race Theory Workshop, the Fellows Advisory Research Committee of the American Bar

Foundation, L’

Ecole des hautes 

etudes en sciences sociales, and the Chicago Area Legal

Writing Group. The research was funded by the American Bar Foundation and the Mac-

Arthur Foundation. All errors and conclusions are those of the authors.

Please direct all correspondence to David McElhattan, Northwestern University, Sociology,

1810 Chicago Avenue, Evanston, IL 60208; email: davidmcelhattan@u.northwestern.edu

Law & Society Review, Volume 51, Number 3 (2017)

V

C2017 Law and Society Association. All rights reserved.

669

individual plaintiffs is the primary enforcement mechanism for

Title VII, but sociolegal scholars long have recognized that a very

small proportion of potential cases enter the legal system, much

less go to trial (Ewick & Silbey 1998; Felstiner et al. 1980; Gal-

anter 1983; Nielsen et al. 2010).

A growing body of scholars have begun to examine the

dynamics of identifying a problem as a legal one (Albiston 2005,

2006; Curran 1977; Engel & Munger 1996; Ewick & Silbey 1998;

Sandefur 2008), the institutional and ideological forces at work in

these determinations (Albiston 2010; Haltom & McCann 2004;

Nielsen & Beim 2004), as well as the supports and obstacles to

entering the legal system to pursue remedies (Curran 1977; San-

defur 2008). We analyze the very bottom-most levels of the

“pyramid of disputes” to explore the link between perceptions of

legal harm—in this case race discrimination—and the determina-

tion of whether it might be worth talking to a lawyer about the

problem (Felstiner et al. 1980; Miller & Sarat 1981).

Legal cynicism,

1

a concept which refers to a sense of distrust

in legal institutions and their ability to deliver fair and effective

remedies (Bell 2016; Kirk & Papachristos 2011; Sampson & Bar-

tusch 1998), may be important in this process. Research on legal

cynicism principally has been concerned with perceptions of the

criminal justice system, with police–citizen relations receiving the

largest share of attention (Bell 2016; Carr et al. 2007; Hagan &

Albonetti 1982; Hagan et al. 2005; Kirk & Matsuda 2011; Kirk &

Papachristos 2011; Weitzer & Tuch 1999). Scholars have

addressed the correlates of cynical views toward law and law

enforcement and have examined the consequences of these atti-

tudes for willingness to call upon legal authorities to help resolve

problems. However, with few exceptions (Brooks & Jeon-

Slaughter 2001; Nielsen 2004), the role of legal cynicism in shap-

ing citizens’ willingness to pursue remedies through the civil jus-

tice system has received scant attention. Using factorial survey

data on perceptions of race discrimination in the workplace, we

address this gap by examining the factors that account for dis-

junctures between perceiving discrimination and recommending

that a victim turn to law.

1

The term “legal cynicism,” widely used in law and society literature for the last 20

years, may be misleading insofar as it attributes passive retreat, helplessness, or misanthropy

to respondents who do not encourage the use of law to address legal problems. There are

many reasons why an individual may choose not to turn to law: cynicism, skepticism, ratio-

nal calculation, or the availability of better options compared to a lawsuit. As such, we alter-

natively use legal skepticism, legal reluctance, and legal cynicism to locate these findings in

the wider literature but urge caution imputing motives to subjects in this kind of quantitative

empirical research. We thank an anonymous reviewer for drawing our attention to this

point.

670 Race and Determinations of Discrimination

Although race discrimination claims represent a significant share

of employment civil rights litigation, accounting for between 33

percent and 38 percent of charges filed with the U.S. Equal Employ-

ment Opportunity Commission in any given year (Equal Employ-

ment Opportunity Commission (EEOC) 2015), prior research

strongly suggests that only a very small percentage of workplace

race discrimination triggers a formal legal claim (Nielsen & Nelson

2005). Empirical studies of legal mobilization show that a variety of

factors are important to whether ordinary people understand their

problems as legal ones (McCann 1994), but we know very little

about how attributions of discrimination translate into considerations

of utilizing law. Even when individuals understand that their legal

rights have been violated and they know who is responsible, they

may not choose to pursue a claim for a variety of reasons. They may

fear retaliation (Berrey et al. 2012; Ewick & Silbey 1998). They may

have become accustomed to being harmed without redress due to

their social location (Sarat 1990). They may lack confidence that

legal actors will believe their claims or be responsive to them, or

theymayrefusetoidentifyasa“victim”inthewaythelawrequires

(Bumiller 1988; Nielsen 2004; Taub & Schneider 1998). They may

not be able to afford an attorney (Myrick et al. 2012).

Moreover, because civil litigation serves as the primary institu-

tional mechanism for enforcing social ideals of racial equality in

the post-civil rights era (Freeman 1978; Lucas 2008; Nielsen

et al. 2010), laypeople’s perceptions of legal mobilization carry

implications for the legitimacy of the established system of rights

protection. While prior research documents a popular narrative

of excessive litigation, frivolous cases, and massive jury awards

(Haltom & McCann 2004; Nielsen & Beim 2004), we know little

about when people choose not to use the law. Because anti-

discrimination law is meant to serve as a mechanism for combat-

ting illegitimate status structures in the workplace, we anticipate

that perceptions of discrimination and attitudes toward legal

mobilization will vary in important ways by respondents’ status

characteristics. Given the centrality of race in scholarship on legal

cynicism, we focus primarily on race differences in perceived dis-

crimination and support for legal mobilization.

Racial attitudes research consistently shows notable differ-

ences in how African Americans, whites, and Latinos view racial

discrimination as an enduring social problem, but less is known

about how these divergent views affect the system of employment

civil rights. Our quantitative research examines whether support

for legal mobilization matches observed differences in how race

predicts perceptions of discrimination. Consistent with existing

research, we find that African-American respondents perceive

more anti-Black discrimination than other racial groups, although

McElhattan, Nielsen, & Weinberg 671