Tristin K. Green, Race and Sex in Organizing Work: "diversity," Discrimination, and Integration

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 59 No. 3

RACE AND SEX IN ORGANIZING WORK: "DIVERSITY," DISCRIMINATION, AND INTEGRATION

Tristin K. Green^*

INTRODUCTION .............................................................................................. 587

I. RACE- AND SEX-BASED DECISIONS ORGANIZING WORK ................... 595

A. Race and Sex in Organizing Work Pursuant to the Prevailing

Narrative .................................................................................... 595

B. Race and Sex in Organizing Work Pursuant to an Integration

Narrative .................................................................................... 600

C. The Role of Law .......................................................................... 605

1. Reaching Decisions Organizing Work ................................. 606

2. The Importance of Developing Title VII Law as It Applies to Decisions Organizing Work .............................................. 611

II. DEVELOPING TITLE VII LAW AS IT APPLIES TO DECISIONS

ORGANIZING WORK ............................................................................ 614

A. Furthering the Goals of Title VII ................................................ 614

1. Reducing Workplace Discrimination ................................... 617

2. Other Business Reasons ....................................................... 621

3. Social Equality ..................................................................... 623

B. Drawing a Micro-Macro Link: An Integrative Effort ................ 628

1. Requiring a Micro-Macro Link: Statutory Limits and

Normative Underpinnings .................................................... 629

2. Establishing a Micro-Macro Link ........................................ 632 a. An Integrative Effort ...................................................... 632 i. Self-Examination and Monitoring ................................. 632 ii. Other Integration-Producing and Discrimination-

Reducing Measures ........................................................ 634

iii. Overarching Norms and Work Cultures ........................ 635

b. The Role of Numbers ..................................................... 636

III. POSSIBILITIES AND CONCERNS ........................................................... 639

A. Practical Concerns ..................................................................... 640

B. The Effect of a New Narrative .................................................... 644

CONCLUSION .................................................................................................. 647

INTRODUCTION

Americans are seeing race and sex differently these days, and the workplace is no exception. Indeed, there is reason to believe that managers are voluntarily and consciously considering the race and sex of employees in everyday employment decisions organizing work: who will serve on a hiring or recruitment committee, who will be assigned to which client or market, who will be asked to sit for interviews or photographs for publicity materials. These are all decisions about how and by whom work is accomplished- decisions "organizing work"-rather than about who gains entry into a firm in the first place or where someone is placed within a clearly defined job hierarchy.

Many of us realize that these decisions are sometimes, even frequently, based in part on race or sex. We would be surprised to see a law school appointments committee comprised entirely of white men, even if most members of the faculty are white men. Outside of the academy, moreover, the "diversity" discourse popular in the business press presents diversity as a business imperative.¹According to this discourse, valuing diversity and having a diverse workforce are morally correct and make economic sense. By attaining, valuing, and managing diversity, businesses can get ahead. They can tap into increasingly globalized and diverse markets and gain the benefits of an increasingly diverse national and international workforce. This value-added case for diversity frames a particular narrative for managers regarding the relevance of race and sex in decisions organizing work. According to that narrative, race and sex are relevant as means of serving markets and of signaling a firm's commitment to diversity and its adherence to egalitarian norms.

What we do not seem to realize is that race- and sex-based decisions organizing work have enormous potential to generate (and to reduce) workplace discrimination and inequality. Decisions organizing work present and arrange workers in relation to one another and, accordingly, shape the context for day-to-day intergroup interactions and relationships that are established and carried out at work.²Intergroup interactions, whether at the water cooler or in the course of securing a lucrative business deal, can reinforce stereotypes, or break them down. Social scientists have long understood that people tend to categorize similarities and differences during interaction as a way of making sense of each other³and that the environmental features, or context, of an interaction can affect the salience of race and gender categories and can ultimately influence whether the interaction is stereotype confirming or stereotype challenging.⁴

This and other research suggest that race- and sex-based decisions organizing work made pursuant to the prevailing relevance narrative will produce and further entrench workplace inequality.⁵Not only are the decisions themselves (often based on ideas about group differences) likely to perpetuate stereotypes and to impose extra, "shadow" work on women and minorities, but race- and sex-based decisions organizing work made pursuant to the dominant narrative are also likely to create stratification in jobs and job functions and lead to devaluation along racial and gender lines, conditions that have been shown to foster stereotype-confirming interactions.⁶

At the same time, a substantial body of social science research and theory points to race and sex in organizing work as potentially one of the most effective, untapped ways of reducing workplace discrimination.⁷Studies have shown, for example, that placing an African American on an otherwise all- white interview panel can alter the deliberation among panel members and reduce the likelihood that biases and stereotypes will negatively affect the interaction between the panel members and African-American candidates.⁸

Additional research suggests that improving the racial and gender balance in the work environment and expanding opportunities for peer-like contact and collaboration among workers from different racial and gender groups can lead to better career outcomes for women and people of color.⁹It follows from this research that considering race and sex when composing work teams can reduce discriminatory biases and stereotyping in intergroup interaction by leading to more integrated teams.

Legal scholars and antidiscrimination advocates alike have largely overlooked the risks and possibilities of considering race and sex in organizing work. Surprisingly little attention has been paid to how employment discrimination law should treat race- and sex-based decisions made for business reasons¹⁰-and none has been aimed at understanding the role of law, particularly the most far-reaching employment discrimination statute, Title VII of the Civil Rights Act,¹¹in regulating consideration of race and sex in decisions organizing work.¹²

This lack of critical examination of the permissibility of considering race and sex in decisions organizing work is even more striking because decisions organizing work differ from entry, promotion, and exit decisions in ways that are important to an antidiscrimination analysis. They are "softer" in that their benefits and harms are not always immediately discernable. Indeed, the benefits of decisions organizing work for those whose work is being organized are often not discernable without reference to relations, such as the opportunity to impress others or to overcome stereotypes. Moreover, unlike race- and sex- based decisions at key employment junctures like hiring or promotion, the use of race and sex in organizing work can impose tangible, work-related costs on individual women and members of minority groups, even when it is intended to further a nondiscrimination goal. A woman who is assigned to a hiring committee because her presence will help minimize gender stereotyping, for example, may bear a cost in the form of additional work that goes uncompensated by the firm. Even if she is financially compensated for the work, the assignment may hinder her career advancement by taking time and energy away from other work-related, career-building tasks.

From a political perspective, because the benefits and harms of race- and sex-based decisions in organizing work are often "softer" and more difficult to discern, considering race and sex in organizing work may prove a more effective tool for reducing discrimination-and ultimately advancing social equality-than considering race and sex at more traditional, exhaustively contested moments of employment decision like hiring, discharge, or promotion. Developing Title VII as it applies to decisions organizing work cannot entirely sidestep the debate surrounding affirmative action, but it does offer a new, promising avenue for change.

This Article provides the first extended analysis of the conscious consideration of race and sex in organizing work. It draws on research and literature in the fields of sociology, social psychology, and organizational theory to expose the risks and possibilities of permitting race- and sex-based decisions organizing work for workplace equality. Based on this empirical foundation and on established Supreme Court case law setting limits and conditions on the use of race and sex in employment decisions under Title VII, the Article presents an argument that is equally normative and doctrinal. It argues that Title VII permits (and should permit) the use...