Title VII discrimination settlement agreements don’t always lead to substantive change in employment policies and practices

Introduction

In the four decades since the passage of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, and national origin, many changes have occured in the American workplace. Yet, gender and racial segregation in companies persists along with professional environments that are hostile to women, particularly women of color, and to men of color. Social scientists and legal scholars continue to debate whether how, or how much, Title VII lawsuits impact organizational behavior and can be used as drivers for substantial change.

As a result of the 1964 Civil Rights Act, Title VII discrimination lawsuits litigated by the Equal Opportunity Commission (EEOC) or the Department of Justice (DOJ) are typically settled by a consent decree instead of going to trial. Consent decrees are also typically the approach taken for privately litigated certified class actions. A consent decree (or settlement) is a court-supervised negotiated agreement between the parties that usually covers both individual monetary damages and injunctive relief, which, in the context of Title VII discrimination lawsuits, requires changes in the defendant’s organizational human resource management policy. The hope of change advocates following 1964 was that these new practices would facilitate creating workplaces free of discrimination and bias. 

In this study, Dr. Cynthia Deitch and Arianne Hegewisch examined policies and practices that organizations have agreed to implement as a result of  negotiated, but court-supervised, lawsuit settlements. Furthermore, their research considered if and how injunctive relief, stemming from these cases, can be used as a powerful lever for changing organizational practices. They sought to understand if in practice, and not just principle, settlements designed to improve equity for women and employees of color have included requirements that have been shown to lead to these types of changes.

Dr. Cynthia Deitch is an Associate Professor of Women’s, Gender, and Sexuality Studies and Sociology, and Associate Director of the Women’s Studies Program within the Department of Sociology at the Columbian College of Arts & Sciences at the George Washington University. Her research focuses on gender, work, and employment policy. Ariane Hegewisch is Program Director of Employment and Earnings at the Institute for Women’s Policy Research and a scholar-in-residence at American University.

Methods and Findings

Deitch and Hegewisch designed the study to answer the following questions:

• How frequently and under what circumstances do Title VII lawsuit settlements result in mandates for organizational change that are likely to lead to more meaningful inclusion and equality?
• What range of remedial mechanisms (e.g., providing harassment and/or diversity training) are found or dictated in settlement agreements?
• What organizational and institutional factors predict the success of implementation of these mechanisms, as suggested by social science research? And do they result in preventing or reducing discrimination? 

To address these questions, the authors analyzed 502 employment discrimination consent decrees settling Title VII sex and race discrimination lawsuits in 2000-2008. Lawsuits included in the analysis ranged in size from individual cases covering only one plaintiff to large settlements for classes consisting of several thousand. Their goal was to understand whether mandates from these cases, including injunctive relief (requirements for organizations to act differently), had any substantial impact.

Deitch and Hegewisch found that nearly half (48%) of all of the consent decrees they examined specified no meaningful substantive changes in the associated workplace. As a result of the decree, only 31 percent of organizations required formalization of personnel decision-making changes, such as in the way jobs are posted and formal criteria for hiring, promotion, pay, and termination. Additionally, only 21 percent of the organizations implemented more innovative measures to the specific culture and structure of their workplace.

When looking specifically at non-individual cases the authors found that over 60 percent of the consent decrees included “substantive change remedies,” which they define as “anything beyond pro forma” changes. Yet, pro forma changes are policies that companies implement to signal compliance with the courts’ decisions, and, as the authors point out, these types of compliance-oriented practices have not been shown to reduce inequality in the workplace.

Deitch and Hegewisch also assessed the role of “second generation solutions,” which include policies and practices such as targeted job training and mentoring programs, external monitors and consultants, or statistical analyses of workforce patterns, and which legal scholars define as vital for addressing the more nuanced and complex discrimination increasingly observed in the 21st century workplace. Their findings indicated only 23 percent of the non-individual EEOC and DOJ consent decrees examined included any second generation solutions to address structural inequality in the workplace.

The researchers also identified that variables including lawsuits certified as class-actions, other non-individual, filed in more liberal Federal District Courts, and/or public sector employment, were more likely to predict substantive remedies for organizational change through applicable institutional Equal Employment Opportunity (EEO) policies and practices. Additionally, single plaintiffs and a conservative District Court legal environment predicted greater likelihood of pro forma-only (basic) remedies, such as publicizing EEO policies.

Conclusions

Deitch and Hegewisch’s central research question for their research was, how frequently and under what circumstances do Title VII sex and race discrimination lawsuit settlements result in commitments to, and actual implementation, of substantive change in employment policies and practices? They sought to determine if the measures that companies put in place following requirements of employment discrimination consent decrees went beyond mere pro forma compliance, and towards greater inclusion and equality.

Many organizational behavior scholars have found that emerging forms of more subtle and often structural or cultural discrimination are more difficult to eliminate with conventional HR policies, including those stipulated in current civil rights legislation. 

In the cases they examined, the authors found limited use of second generation solutions, including policies and practices, which could meaningfully address inequality in the workplace. The limited inclusion of these required changes in Title VII race and sex discrimination lawsuit settlements lead the authors to conclude that injunctive relief was not successfully used as a tool to reduce inequality in the workplace in the  2000-2008 cases they examined.

Gaby Aboulafia

Using race-specific language can help in school improvement efforts

Introduction

How school leaders discuss, or avoid discussing, race and racism is consequential to students’ educational experiences. “Race talk” is a term used to describe communication individuals use to discuss race and racism. In the context of education, “race talk” is when teachers speak explicitly about race and racism, as opposed to avoiding discussion of the topic at all. “Race talk” research examines how school leadership teams discuss changes in school demographic composition, how racial language is used in conversations about school discipline policies and enforcement, and how race-evasive language has been used to maintain white privilege in classrooms. However, many schools still do not actively consider how their use or avoidance of appropriate racialized language may directly affect school improvement efforts.

In this study, Dr. Decoteau Irby and Shannon Clark considered how race-specific language can advance organizational learning about the racialized nature of school problems. By analyzing conversations among teachers and staff at a suburban high school, the authors tested whether the use of race-specific language was associated with a more holistic understanding of racialized discipline disparities. The study was broadly designed to understand how race-specific language can lead to more comprehensive thinking and problem framing among school leadership teams.

Dr. Decoteau Irby is an Associate Professor in the Department of Educational Policy Studies at the University of Illinois at Chicago College of Education. His research focuses on how equity-focused school leadership can improve Black children’s academic and socio-emotional experiences and outcomes. Shannon Clark is a doctoral candidate in Educational Policy at the University of Illinois at Chicago, graduating in 2022. Her research focuses on the experiences of Black educators, families, and students in hyper-segregated public schools.

Methods and Findings

Irby and Clark designed the study to answer the following questions:

• During conversational exchanges, is a teacher’s use of race talk associated with how they frame school discipline problems?
• What do association patterns suggest about the impact of racial language on educators’ abilities to analyze discipline problems? To answer these questions, the authors used data from focus groups at a high school that served around 800 students during the 2012-2013 academic year. The school was composed of 75% white , 10% Latinx, 9% Black, 4% Asian or Pacific Islander and 2% multiracial students, but attendance among students of color was starting to increase. The 60-person teaching and support staff team was almost entirely white.

The authors analyzed 28 conversations from a set of focus groups in which 44 teachers discussed problems related to school discipline over one hour in groups of a maximum of 7 participants. These focus groups were held to discuss racial inequities in discipline that had emerged at the school as the number of students of color increased. In their analysis, the researchers focused on the presence of race-specific language (e.g. “African-American students”), race-proxy language (e.g. “non-English-speaking families”), and race-mute phrases, as well as the ways in which school leaders described and made sense of behavioral problems.

When teachers and staff used race-proxy and race-specific language, they were more likely to express the interconnected roots of disciplinary problems across multiple “problem frames,” including historic and systemic factors, school contextual and procedural factors, and inter and intrapersonal factors. Teachers and staff who used race-mute language spoke with the lowest levels of complexity about discipline problems.

Conclusions

This research shows that race-specific language enabled teachers to better understand and articulate racist dynamics related to school discipline, compared to exchanges using only race-mute language, which more often assigned blame to individual students or administrators rather than addressing systemic problems in how the school was functioning.

This study underscores the importance of race-specific language for school improvement. The findings suggest that leaders who regularly use race-specific language as a part of professional practice will develop teams that are better equipped to address organizational disparities related to race and racism in schools, as compared to those who do not.

Developing the capacity of teachers and staff to use race-specific language should be a priority for schools. The authors suggest that future research could explore specific ways that school leaders can promote race-specific language use among staff. Prioritizing actions that promote race-specific conversations among school teams can increase the potential for antiracist change in schools.

Helping teachers and administrators find ways to explicitly discuss race and racism, instead of reinforcing color-blind ideologies, is critical to achieving antiracism in education.