Vol. 27 No. 7 (September 2017) pp. 117-121WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC CIVIL RIGHTS, by Lauren B. Edelman. Chicago: University of Chicago Press, 2016. 312pp. Paper $30.00. ISBN: 9780226400761.
Reviewed by Ryan C. Black, Department of Political Science, Michigan State University. Email: rcblack@msu.edu.
Why, after more than half a century since the passage of the Civil Rights Act of 1964, do we continue to observe racial and gender discrimination in the workplace? This is the central question in Edelman’s WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC CIVIL RIGHTS and it should be of interest not just to her primary audience (i.e., law and society scholars such as herself), but also to students (at a variety of levels) and teachers of the American judiciary more generally.
To motivate the problem, Edelman asks us to consider a number of employment statistics. First, the ratio of employment-to-population for women (both white and of color) and black males continue to lag behind their white male counterparts (p. 7). Second, beyond just simple employment, both of these groups continue to be underrepresented in management positions (pp. 7-8). And, third, these groups (and also Hispanics) continue to earn significantly less in terms of salary than white males employed in identical positions (p. 7).
So, given these conditions, who’s to blame? Edelman’s causal story ends with the observation that courts typically show a high degree of deference to companies and industries when they have implemented anti-discrimination policies. This is harmful because the tendency to defer is so strong that courts ignore objective evidence of systematic discrimination that continues to persist, even though some sort of (clearly ineffective) policy in place. As such, these policies “represent little more than cosmetic compliance” (p. 11).
But, judicial deference is only the final stage in Edelman’s thought-provoking theoretical account, which she labels “legal endogeneity theory.” This theory is “a process through which the meaning of law is shaped by the widely accepted ideas within the social arena that law seeks to regulate” (p. 12). As she elegantly elaborates on just a few pages later, “Under these circumstances, law tends to operate on myth and ceremony in a way that renders the impact of law dependent on the effectiveness of the structures that organizations create. When organizations hold the key to the meaning of law, they also harness its power, weakening the potential of social reform laws to achieve [their intended] ideals” (p. 15).
Such deference is not, of course, created overnight, but rather is the culminating step in a six-stage model Edelman introduces in Chapter 2 and fleshes out in subsequent chapters. Although she warns the reader that it will contain more “sociolegal jargon” than the rest of the text, even I, a mouth-breathing judicial politics researcher, found it to be pithy, accessible, and engaging. Here I provide a very short synopsis of each before diving into the evidence she marshals in the remaining individual chapters.
Stage 1 begins with legal ambiguity, which can come from a variety of sources [*118] including the lawmaking process or efforts to creatively construct existing legislation after it has been implemented. Stage 2 is where the legal considerations are translated or reframed into a professional context. Just as most people depend upon the media to rely the content of a dense Supreme Court opinion, firms and organizations turn to compliance professionals to inform them of their legal obligations. Critically, these professionals end up couching this information in the language of risk; that is, what sort of litigation does a firm risk by failing to comply with the law? Stage 3 is where firms deploy symbolic structures to satisfy their legal obligations. Such an approach capitalizes on the legitimacy-enhancing nature of symbolic structures while simultaneously preserving the ability of the business to largely pursue its own goals independent of the legal constraint (e.g., in choosing who to hire, who to fire, etc.). Thus, to the extent that discrimination exists within a firm in the first place, symbolic structures allow it to persist. Stage 4 deals with the “managerialization of law,” which is the practical or day-to-day consequences of how the symbolic structures and law interact. This proceeds in a variety of ways, but the basic outcome is that because compliance professionals are the ones resolving these internal conflicts, their own socialization and background tends to inject the logic of business into the meaning of law. Stage 5 is the mobilization of the previously-created symbolic structures. Here, firms defend themselves against legal challenges brought by employees by pointing to the existence of symbolic structures as evidence that the firm is in compliance with the law.
Having outlined her argument and contentions, each of the six remaining substantive chapters is devoted to providing evidence to buttress her argument. Chapter 3, then, focuses on legal ambiguity. In this chapter Edelman accomplishes two things. First, she shows the existence of considerable ambiguity in Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, sex, national origin, and religion. In particular, though the Act went to great lengths to define a litany of terms, it was ultimately silent on what exactly constituted “discrimination.” Similarly, though it created the Equal Employment Opportunity Commission (EEOC), it never actually said what “equal employment opportunity” (hereafter, EEO) meant (p. 43). This is salient, as she points out, since it is one thing to say that an employer cannot actively discriminate against women, but it is another to say that the same employer can actively pursue gender-based policies aimed at achieving workplace equality. The chapter also includes a well-crafted overview of the history of the Act and a lucid discussion of developments in law surrounding it. Edelman shows that this evolution has resulted in a more difficult legal environment for a more expansive view of civil rights law.
Chapter 4 examines the professional framing of the legal environment by compliance professionals, which include those working in human resources (HR), lawyers, management consultants, and, more recently, even insurance companies. Edelman’s central claim regarding these individuals is that they are not mere “agents” involved with EEO law, but rather “architects,” who influence how the legal environment is perceived by the organizations they work for. The most persuasive evidence she offers in support of this comes from a content analysis of various materials provided by an HR consulting firm over the span of multiple years (2008-2014). This analysis shows, [*119] consistent with Edelman’s expectations, that virtually all materials discuss law and a near majority focus on “risk,” which appears more than twice as often as a discussion of the more expansive term of “fairness.” The substantive implication of this framing is that if organizations believe the legal environment is a “war zone” and something that needs be managed (as opposed to an opportunity to promote equality), then organizations will continue to seek out (and pay for) the advice of these compliance architects, who will be responsible for building the compliance structures for these organizations.
Chapter 5 pushes forward with Edelman’s argument to examine how compliance professionals created symbolic structures that gave the appearance of attending to what was required by law. It is worth noting that Edelman is very careful with what she means by symbolic. In particular, symbolic should not be read as the opposite of substantive. Rather, she means, “these structures evoke a notion of legality and compliance” (p. 101). Nothing inherently precludes them from being effective or substantive, as well. As for the form and prevalence of these structures in organizations, Edelman presents data on three types of EEO structures: rules, grievance procedures, and offices. She then analyzes them both in terms of changes across time as well as organization type, which is disaggregated into five categories based on proximity to the public sphere. Rules are the most common, with 80%-plus of all types of organizations having them by 1989. As for grievance procedures or dedicated EEO offices, Edelman finds ample variation by proximity to the public sphere, with more publicly facing organizations having these structures as compared to their less public counterparts. By 1989, for example, over 60% of government agencies had grievance procedures and around 40% had EEO offices. The prevalence of these structures in businesses, by contrast, was around 40% (procedures) and 10% (offices). The significance of these structures is that they “help [organizations] escape liability for discrimination” (p. 122).
Chapter 6 explores the effectiveness of symbolic compliance structures created by organizations. Are they substantive or merely symbolic? Edelman identifies four ways that law becomes managerialized within organizations and, in turn, allows for inequality to persist. The first of these mechanisms is internalized dispute resolution (IDR). When a potential complaint is raised within an organization, they are often reframed – per the interview evidence that Edelman reports – not in a legal way but rather as evidence poor management. This is salient as the framing in turn influences the sort of remedy offered by IDR, which then focuses on achieving harmony in the workplace as opposed to a punitive remedy that seeks to right a wrong. The second way managerialization manifests itself is through the use of contracts or management to deal with legal risk. In this vein, things like requiring arbitration in a dispute allow the organization to achieve a favorable outcome or limit the damage from an unfavorable one. Third, organizations decouple their EEO structures from the actual activities of the organization. This is the most surefire way to guarantee that structures stay merely symbolic versus substantive. Studies cited by Edelman in this section suggests that they have indeed have had this effect. Finally, Edelman reproduces some of her earlier work on the rhetorical construction of diversity, which comes from content analysis of management literature. This analysis explores the usage of various frames in the literature, finding that the use of diversity-type frames significantly [*120] outnumbers more legalistic or civil-rights based frames.
Chapter 7 starts to build Edelman’s case for how the mere existence of symbolic structures is equated with adherence to EEO law. Some of the most persuasive evidence for this comes from fascinating experimental work led by Cheryl Kaiser and Brenda Major, two social psychologists, which shows that exposure to diversity structures leads respondents to believe that an organization is fair (e.g., Kaiser et al. 2013). Impressively, these laboratory results hold not just for white men, but also women and Latinos. Given these results, it should come as no surprise that even when employees do overcome numerous barriers to mobilization that the arguments made by plaintiffs’ attorneys defending the organization are found to be persuasive.
Chapter 8 is the meatiest of those offered by Edelman in this book and focuses on judicial deference to symbolic structures. This is important, substantively, since it ultimately falls on the courts to decide if a structure achieves full compliance with an organizations EEO obligations. Drawing on a sample of federal district and circuit court opinions, Edelman shows that courts overwhelming consider the existence of symbolic structures relevant in their written opinions and, more importantly, are deferential to those structures. Subsequent exploration of these data show patterns with regards to opinion type and also the type of claims being made. Edelman also considers the effect of “judicial politics,” which she operationalizes as judge ideology. Somewhat confusingly, however, Edelman reports in the text that “more conservative judges are less likely to rule in favor of plaintiffs” (p. 194), but quickly walks back from that claim in the attached endnote, which reveals that the difference isn’t actually statistically significant (p. 295, n77). A related figure suggests a potential modest interaction between judge ideology and deference in terms of case outcomes, but the text is unfortunately silent as to whether any systematic differences exist. The chapter then examines how the Supreme Court has handled symbolic structures in a number of decisions. In so doing, Edelman also provides an informative discussion of the role played by amicus briefs submitted by the EEOC. The chapter concludes by examining the EEOC and, in particular, whether a top-down EEOC-driven account better explains the data as opposed to the bottom-up legal endogeneity view Edelman argues for. Here, Edelman concludes that the EEOC, much like courts, were quite willing to defer to symbolic structures and ignore their ultimate effectiveness.
Chapter 9 concludes with a discussion of recommendations for various audiences and future research possibilities. In terms of the former, Edelman suggests that judges need to be more critical in ascertaining whether a structure is merely symbolic or substantive. This recommendation makes sense in light of her findings, but it might have been helpful if Edelman were more specific about a mechanism by which judges could enhance their decision making. That is, how can judges break out of the cycle of legal endogeneity? To be fair, Edelman assigns some blame to plaintiff’s lawyers, who she asks to be more savvy about illustrating the substantive ineffectiveness of symbolic structures. As for future research, Edelman prods researchers to consider how legal endogeneity might exist outside of employment law in the areas of financial regulation and prison governance.
In sum, as I suggest at the beginning of this review, WORKING LAW makes for a solid addition to just about everyone’s bookshelf. [*121] Law and society scholars, who have likely seen much of this material, will appreciate having it all at their fingertips in a single volume. Those who, like myself, are new to the material will be rewarded with a clearly written and interesting text. I found myself enjoying thinking of it as a fresh perspective to judicial politics approaches to the study of judicial impact. I could see assigning or teaching about it alongside other more “standard judicial politics” texts such as Gerald Rosenberg’s THE HOLLOW HOPE or, more recently, Matthew Hall’s response to Rosenberg, THE NATURE OF SUPREME COURT POWER.
REFERENCES:
Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.
Hall, Matthew E.K. 2011. THE NATURE OF SUPREME COURT POWER. New York: Cambridge University Press.
Kaiser, Cheryl R., Brenda Major, Ines Jurcevic, Tessa L. Dover, Laura M. Brady, and Jenessa R. Shapiro. “Presumed Fair: Ironic Effects of Organizational Diversity Structures.” JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 104(3): 504-19.
© Copyright 2017 by author, Ryan C. Black.
