Tristin K. Green

Work Culture and Discrimination

Whether in response to civil rights laws or demographic shifts in the labor pool, employers today seem to realize that women and minorities will be a part of their workforces. Indeed, many employers broadly espouse diversity as part of doing good business. At the same time, over the past several decades, employers have increasingly turned to employee fit as a formal job requirement and have retreated from detailed bureaucratic structures in ways that place heightened importance on social relations. These structural moves raise new concerns about workplace equality, for they strengthen demands to conform with prevailing work culture by making social relations more crucial to an individuals employment success. In this Article, I seek to frame an expanded antidiscrimination discourse that isolates work culture as a source of discrimination and puts legal pressure on employers to devise meaningful programs for reform. Drawing on a rich literature on the meaning of culture and the operation of human bias, I examine how particular work cultures can develop and persist along gender and/or racial lines and expose the harms that those cultures can impose on women and minorities. I then locate a substantial gap in existing legal discourse, where work culture is more frequently seen as a matter of business prerogative than one of antidiscrimination concern. For both normative and practical reasons, however, I argue against the creation of a new legal right to be free from discriminatory work culture, and I explore several alternatives to a legal rights approach, one that builds on existing legal doctrine and another that is driven by an administrative obligation, that might be used to trigger the type of contextual problem solving needed for meaningful work culture change.

The Future of Systemic Disparate Treatment Law

At the same time that it becomes increasingly clear that organizational change is crucial to reducing workplace discrimination, longstanding theories of systemic discrimination are under attack. This Article exposes the threat posed to the mainstay of systemic theories – systemic disparate treatment theory – under which plaintiffs frequently use statistics (along with other evidence) to establish that discrimination is widespread within the defendant organization. The threat to private enforcement of Title VII against systemic disparate treatment is starkly evident in the current battle over class certification, but the threat goes much deeper than whether private plaintiffs will be able to obtain class certification in employment discrimination cases – it goes to the substance of systemic disparate treatment law. This Article uncovers the “policy-required” view of entity responsibility that underlies the dissenting opinion in the Ninth Circuit class certification decision in Dukes v. Wal-Mart and exposes the implications of that view for the future of systemic disparate treatment law. It also shows how an individualistic model of organizational wrongdoing more broadly has led to under-theorizing, even mis-theorizing, of entity responsibility for systemic disparate treatment. Drawing on developments in other areas of organizational wrongdoing, the Article advances a “context” model as theoretical grounding for existing systemic disparate treatment law. A context model emphasizes the role of organizational context in producing wrongdoing. Viewed through a context lens, systemic disparate treatment law imposes direct liability on employers for regular, widespread disparate treatment as well as for discriminatory policies because in those circumstances the employer is likely to be producing or to have produced disparate treatment within the organization.

Complete Preemption--Removing the Mystery from Removal

The American Law Institute has begun a project to address the principles of our jurisdictional system, the implications of which are powerful and far-reaching. Our dual system of federal and state courts inevitably leads to forum questions that can radically alter, or even determine, the outcome of a dispute. Because jurisdiction serves as the initial door to legal relief it must rest on a coherent framework of principles and rules if justice is to prevail. Not unlike its efforts in 1969, the ALI will propose a set of jurisdictional principles through amendments to our current statutes. In doing so, it will come across the convoluted doctrine of federal question removal based on complete preemption. This Comment addresses the confusion surrounding the doctrine and proposes that preemption should serve as the basis for removal only for those claims for which Congress has created federal law that both preempts state law and provides a parallel cause of action.