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

Organizations that implement diversity programming to promote leadership development as well

INTRODUCTION

Since 2020 we have seen more employers establish diversity programs to promote values of diversity within an organization. Yet, few have acknowledged existing research that has challenged the implementation and efficacy of diversity programs at the managerial and staff levels.  This summary examines this earlier research by focusing on one study to show that these initiatives do not guarantee a strong diversity climate. This study defines diversity climate as the degree to which an organization’s structure and values are perceived to uphold diversity. Employers seeking to foster a strong and positive diversity climate at their respective organizations will benefit from an improvement in employee satisfaction, attendance, and commitment. A strong diversity climate also supports recruitment and retainment of diverse workforce, including Black and Brown workers.

Herdman and McMillan-Capehart evaluate the underlying influences on diversity climate and their impact on the effectiveness of diversity programs. A common diversity program in the workplace is an HR initiative to hire diverse staff. Another example of a diversity program is establishing employee resource groups for staff with shared identities to foster mentorship, support, and professional development. The authors hypothesize that the effectiveness of these types of programs is impacted by underlying culture and climate of organizational support for diversity. Herdman and McMillan-Capehart study five hypotheses focusing on racial diversity among staff and managerial attitudes about diversity to evaluate their effect on diversity program effectiveness and strength of an organization’s diversity climate.

An organization’s established policies and demographic makeup of management send an impactful signal to their employees that their organization is committed to achieving diversity. These factors shape employee perception of their organization’s diversity climate. Herdman and McMillan-Capehart intend to expand upon existing work in this field by investigating the impact of the demographic makeup of staff, management appreciation of staff and diversity, and the existence of diversity programs on diversity climate.

Andrew O. Herdman is a Teaching Instructor at East Carolina University’s College of Business. Herdman offers management courses at ECU and his research focus is on team behavior and performance in the workplace. Amy McMillan-Capehart is the Associate Dean of Research and Faculty Development at East Carolina University’s College of Business. McMillan-Capehart’s work concentrates on diversity and organizational climate.

Methods and Findings

This study was conducted at the management and staff level, drawing participation from 163 independently owned and operated hotels under the same brand name and therefore sharing management and implementation of diversity initiatives. Participants completed questionnaires on the following topics, for a total of 3,578 responses: 

1) diversity program information, 2) managerial values and demographics, and 3) diversity climate. The authors used the results from these surveys to score each hotel’s diversity programming, diversity climate, demographic diversity, and managerial values relating to diversity initiatives. Using these data, the authors tested each of the following hypotheses:

• Hypothesis 1: The existence of diversity programs contributes to a strong organizational diversity climate.
• Hypothesis 2: A diverse management team contributes to a strong organizational diversity climate.
• Hypothesis 3: A racially diverse staff contributes to a strong relationship between the implementation of diversity programs and organizational diversity climate.
• Hypothesis 4: Management appreciation of staff development and diversity (managerial relational values) is associated with the existence of diversity programming at that organization.
• Hypothesis 5: Management appreciation of staff development and diversity (managerial relational values) contributes to a strong relationship between the implementation of diversity programs and organizational diversity climate.

The analysis supported most of these hypotheses. (Hypothesis 2 was not supported in the authors’ findings.) The existence of diversity programs did contribute to a positive diversity climate, although diversity of the management team did not have a significant effect. Racial diversity of the staff also contributed positively to the relationship between the implementation of diversity programs and organizational diversity climate. Managerial values around staff development and diversity were also positively related to the existence of diversity programming and the impact of that programming on diversity climate.

Conclusions

This study concluded that the efficacy of diversity programs is driven by a complex set of factors. Leadership initiatives to establish diversity policies and programs legitimately demonstrate a commitment to staff development and diversity values in order to more successfully promote an organizational culture in which diversity is perceived as a true asset. Additionally, these commitments allow management to move beyond perceptions of diversity initiatives as “lip service” to a truly positive diversity climate. 

Herdman and McMillan-Capehart acknowledge that further research should focus on these and other contextual factors that influence perceptions of organizational diversity. This study surveyed employees of one hotel brand, so it would be informative to conduct similar research across the hotel industry and across other industries. In future research, Herdman and McMillan-Capehart would recommend conducting a study with a larger participant base and direct researcher observation of survey distribution and collection, both of which were limitations in this study in particular. Lastly, further research on this topic should include an analysis of Human Resources programs and their effect on diversity climate.