Hostname: page-component-848d4c4894-pjpqr Total loading time: 0 Render date: 2024-06-17T16:39:40.170Z Has data issue: false hasContentIssue false
  • English
  • Français

Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation

Published online by Cambridge University Press:  01 January 2024

Ellen Berrey ,
Steve G. Hoffman  and
Laura Beth Nielsen
Get access Rights & Permissions [Opens in a new window]

Abstract

A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public's perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants' perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in-depth interviews with defendant's representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants' representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. Audio recordings of respondents quoted in this article are available online.*

Type
Articles
Information
Law & Society Review , Volume 46 , Issue 1 , March 2012 , pp. 1 - 36
Copyright
© 2012 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

This research was funded by the American Bar Foundation, the National Science Foundation (#SES-0417389), and the Searle Foundation. The research benefited from participation in the Discrimination Research Group, a joint effort funded by the American Bar Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Ford Foundation (#1045-0189). This article was also aided by Laura Beth Nielsen's participation in the Sociolegal Justice Project (SJP), which is a joint effort of the American Bar Foundation, the National Science Foundation, and George Mason University. We received helpful input from the anonymous reviewers and from participants in the 2009 Law & Society Association meeting, the 2009 American Sociological Association meeting, and workshops and colloquia hosted by Cornell University, Emory University, Stanford University, University at Buffalo, University of California, Berkeley, and University of Illinois at Chicago. Robert Nelson, Mary Rose, and Rebecca Sandefur deserve special thanks for their close readings of previous drafts. Kate Kindleberger, Evan Lowney, and Talia Schiff provided excellent research support.

*

Readers can hear the data in respondents' own voices by listening to online audio recordings of the lengthy quotations. There are a few ways to listen to the 22 audio clips while reading the article. Those who are reading the digital version of the article will see that the name of each person quoted is hyperlinked. After clicking on a hyperlink, readers will be directed to a Web page containing just the audio recording for the appropriate quotation. The other option is for readers to open the article on their computer or to print it out and open the article web page simultaneously (www.americanbarfoundation.org/research/Civil_Rights_in_their_Own_Voices0.html). When these readers reach a lengthy quotation in the article, they can play the recording on the Web page that corresponds to the speaker's name. The recordings are listed on the Web page in the order in which they appear in the article.

References

Abel, Richard L. (1998) Speaking Respect, Respecting Speech. Chicago: Univ. of Chicago Press.Google Scholar
Abrego, Leisy (2011) “Legal Consciousness of Undocumented Latinos: Fear and Stigma as Barriers to Claims Making for First and 1.5 Generation Immigrants,” 45 Law & Society Rev. 337–69.CrossRefGoogle Scholar
Adler, Jane, Hensler, Deborah, & Nelson, Charles (1983) Simple Justice: How Litigants Fare in the Pittsburgh Court Arbitration Program. The RAND Corporation.Google Scholar
Alexander, Jeffrey C. (2004) “Cultural Pragmatics: Social Performance between Ritual and Strategy,” 22 Sociological Theory 527–73.CrossRefGoogle Scholar
Baudrillard, Jean (1995) The Gulf War Did Not Take Place. Bloomington, IN: Indiana Univ. Press.Google Scholar
Berrey, Ellen, & Nielsen, Laura Beth (2007) “Rights of Inclusion: Integrating Identity at the Bottom of the Dispute Pyramid,” 32 Law & Social Inquiry 233–60.CrossRefGoogle Scholar
Berrey, Ellen C. (2011) “Why Diversity Became Orthodox in Higher Education, and How It Changed the Meaning of Race on Campus,” 37 Critical Sociology 573–96.CrossRefGoogle Scholar
Bisom-Rapp, Susan (1999) “Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law and Practice,” 26 Florida State Univ. Law Rev. 959–1049.Google Scholar
Blanchard, Edward B., et al. (1998) “Effects of Litigation Settlements on Posttraumatic Stress Symptoms in Motor Vehicle Accident Victims,” 11 J. of Traumatic Stress 337–54.CrossRefGoogle ScholarPubMed
Blumer, Herbert (1962) “Society as Symbolic Inter-Action,” in Rose, A. M., ed., Human Behavior and Social Processes. Boston: Houghton Mifflin Co.Google Scholar
Bourdieu, Pierre. (1984) Distinction: A Social Critique of the Judgement of Taste. Nice, T. R., ed. Cambridge: Harvard Univ. Press.Google Scholar
Bumiller, Kristen (1987) “Victims in the Shadow of the Law: A Critique of the Model of Legal Protection,” 12 Signs: J. of Women and Culture in Society 421–534.CrossRefGoogle Scholar
Burke, Thomas F. (2002) Lawyers, Lawsuits, and Legal Rights. Berkeley: Univ. of California Press.Google Scholar
Burke, Tom (2003) “How Do Rights Work? The Case of the Americans with Disabilities Act,” Rights and Realities: Legal and Social Scientific Approaches to Employment Discrimination. Stanford Law School.Google Scholar
Clermont, Kevin M., & Eisenberg, Theodore (1992) “Trial by Jury or Judge: Transcending Empiricism,” 77 Cornell Law Rev. 1170–74.Google Scholar
Clermont, Kevin M., & Eisenberg, Theodore (2002) “Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ from Negotiable Instruments?,” 2002 University of Illinois Law Rev. 947–77.Google Scholar
Clermont, Kevin M., & Schwab, Stewart J. (2004) “How Employment Discrimination Plaintiffs Fare in Federal Court,” 1 J. of Empirical Legal Studies 429–58.CrossRefGoogle Scholar
Clermont, Kevin M., & Schwab, Stewart J. (2009) “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” 3 Harvard Law & Policy Rev. 103–32.Google Scholar
Collie, Thérèse, Bradley, Graham, & Sparks, Beverley A. (2002) “Fair Process Revisited: Differential Effects of Interactional and Procedural Justice in the Presence of Social Comparison Information,” 38 J. of Experimental Social Psychology 545–55.CrossRefGoogle Scholar
Curran, Barbara A. (1977) The Legal Needs of the Public: The Final Report of a National Survey. Chicago: American Bar Foundation.Google Scholar
Donohue, John J., & Siegelman, Peter (1991) “The Changing Nature of Employment Discrimination Litigation,” 43 Stanford Law Rev. 983–1033.Google Scholar
Edelman, Lauren B. (1992) “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law,” 97 American J. of Sociology 531–76.CrossRefGoogle Scholar
Edelman, Lauren B. (2005) “The Endogeneity of Law: Civil Rights at Work,” in Nelson, Robert L., & Nielsen, Laura Beth, eds., Handbook of Employment Discrimination Research: Rights and Realities. Dordrecht, Netherlands: Springer.Google Scholar
Engel, David M., & Munger, Frank W. (2003) Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Ewick, Patricia, & Silbey, Susan S. (1998) The Common Place of Law: Stories from Everyday Life. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Felstiner, William, Abel, Richard, & Sarat, Austin (1980) “The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming,” 15 Law & Society Rev. 631–55.CrossRefGoogle Scholar
Festinger, Leon, & Carlsmith, James (1959) “Cognitive Consequences of Forced Compliance,” 58 J. of Abnormal and Social Psychology 203–10.CrossRefGoogle ScholarPubMed
Fiske, Susan T. (1998) “Stereotyping, Prejudice, and Discrimination,” in Gilbert, D. T., Fiske, S. T., & Lindzey, G., eds., Handbook of Social Psychology. New York: McGraw-Hill.Google Scholar
Fleury-Steiner, Benjamin Dov. (2004) Jurors' Stories of Death : How America's Death Penalty Invests in Inequality. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Folger, Robert (1984) “Perceived Injustice, Referent Cognitions, and the Concept of Comparison Level,” 14 Representative Research in Social Psychology 88–108.Google Scholar
Galanter, Marc (1974) “Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
Giddens, Anthony (1990) The Consequences of Modernity. Stanford, CA: Stanford Univ. Press.Google Scholar
Gonzales, Roberto G. (2011) “Learning to Be Illegal: Undocumented Youth and Shifting Legal Contexts in the Transition to Adulthood,” 76 American Sociological Rev. 602–19.CrossRefGoogle Scholar
Greenberg, Jerald (1987) “A Taxonomy of Organizational Justice Theories,” 12 The Academy of Management Rev. 9–22.CrossRefGoogle Scholar
Grossman, Joel B., Kritzer, Herbert M., & Macaulay, Stewart (1999) “Do the ‘Haves’ Still Come Out Ahead?,” 33 Law & Society Rev. 803–10.CrossRefGoogle Scholar
Haltom, William, & McCann, Michael (2004) Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Hirsch, Elizabeth, & Lyons, Christopher J. (2010) “Perceiving Discrimination on the Job: Legal Consciousness, Workplace Context, and the Construction of Race Discrimination,” 44 Law & Society Rev. 269–98.Google Scholar
Hirsh, C. Elizabeth (2008) “Settling for Less? The Organizational Determinants of Discrimination-Charge Outcomes,” 42 Law & Society Rev. 239–74.CrossRefGoogle Scholar
Hirsh, C. Elizabeth, & Kornrich, Sabino (2008) “The Context of Discrimination: Workplace Conditions, Institutional Environments, and Sex and Race Discrimination Charges,” 113 American J. of Sociology 1394–32.CrossRefGoogle ScholarPubMed
Kim, Pauline T. (1997) “Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World,” 83 Cornell Law Rev. 105–60.Google Scholar
Kirkland, Anna (2008) “Think of the Hippopotamus: Rights Consciousness in the Fat Acceptance Movement,” 42 Law & Society Rev. 397–432.CrossRefGoogle Scholar
Larson, Erik W. (2004) “Institutionalizing Legal Consciousness: Regulation and the Embedding of Market Participants in the Securities Industry in Ghana and Fiji,” 38 Law & Society Rev. 737–68.CrossRefGoogle Scholar
Lind, Allan E., & Tyler, Tom R. (1988) The Social Psychology of Procedural Justice. New York: Plenum.CrossRefGoogle Scholar
Lind, E. Allan, et al. (1993) “Individual and Corporate Dispute Resolution: Using Procedural Fairness as a Decision Heuristic,” 38 Administrative Science Q. 224–51.CrossRefGoogle Scholar
Lind, E. Allan, et al. (1990) “In the Eye of the Beholder: Tort Litigants' Evaluations of Their Experiences in the Civil Justice System,” 24 Law & Society Rev. 953–96.CrossRefGoogle Scholar
Lofland, John, & Lofland, Lyn H. (1995) Analyzing Social Settings: A Guide to Qualitative Research and Analysis. Belmont, CA: Wadsworth.Google Scholar
MacCoun, Robert J. (2005) “Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness,” 1 Annual Rev. of Law and Social Science 171–201.CrossRefGoogle Scholar
Major, Brenda, et al. (2002) “Perceiving Personal Discrimination: The Role of Group States and Legitimizing Ideology,” 82 J. of Personality and Social Psychology 269–82.CrossRefGoogle Scholar
Marshall, Anna-Maria (2008) “Injustice Frames, Legality and the Everyday Construction of Sexual Harassment,” 28 Law & Social Inquiry 659–89.Google Scholar
McCann, Michael (2006) “On Legal Rights Consciousness: A Challenging Analytical Tradition,” in Fleury-Steiner, B., & Nielsen, L. B., eds., The New Civil Rights Research: A Constitutive Approach. Williston, VT: Dartmouth/Ashgate Press.Google Scholar
Merry, Sally Engle (1990) Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. Chicago: Univ. of Chicago Press.Google Scholar
Miles, Matthew B., & Huberman, Michael A. (1994) Qualitative Data Analysis: An Expanded Sourcebook. Thousand Oaks, CA: SAGE.Google Scholar
Nader, Laura (1972) “Up the Anthropologist: Perspectives Gained by Studying Up” in Hymes, D., ed. Reinventing Anthropology. Ann Arbor: Univ. of Michigan Press.Google Scholar
Naumann, Stefanie E., & Bennett, Nathan (2000) “A Case for Procedural Justice Climate: Development and Test of a Multilevel Model,” 43 The Academy of Management J. 881–89.CrossRefGoogle Scholar
Newman, Jon O. (1985) “Rethinking Fairness: Perspectives on the Litigation Process,” 94 Yale Law J. 1643–59.CrossRefGoogle Scholar
Nielsen, Laura Beth (2000) “Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens About Law and Street Harassment,” 34 Law & Society Rev. 201–36.CrossRefGoogle Scholar
Nielsen, Laura Beth, & Beim, Aaron (2004) “Media Misrepresentation: Title Vii, Print Media, and Public Perceptions of Discrimination Litigation,” 15 Stanford Law and Policy Rev. 237–365.Google Scholar
Nielsen, Laura Beth, & Nelson, Robert L. (2005) “Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System,” 2005 Wisconsin Law Rev. 663–711.Google Scholar
Nielsen, Laura Beth, Nelson, Robert L., & Lancaster, Ryon (2010) “Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States,” 7 J. of Empirical Legal Studies 175–201.CrossRefGoogle Scholar
Nielsen, Laura Beth, et al. (2008) Characteristics and Outcomes of Federal Employment Discrimination Litigation, 1987–2003. Chicago: American Bar Foundation.Google Scholar
Polletta, Francesca (2006) It Was Like a Fever: Storytelling in Protest and Politics. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Prasad, Monica, et al. (2009) “There Must Be a Reason: Osama, Saddam, and Inferred Justification,” 79 Sociological Inquiry 142–62.CrossRefGoogle Scholar
Rawls, John (1999 [1971]) A Theory of Justice. Cambridge: Belknap Press of Harvard Univ. Press.CrossRefGoogle Scholar
Sarat, Austin (1993) “Review: Authority, Anxiety, and Procedural Justice: Moving from Scientific Detachment to Critical Engagement,” 27 Law & Society Rev. 647–71.CrossRefGoogle Scholar
Sarat, Austin, & Felstiner, William (1995) Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process. New York: Oxford Univ. Press.Google Scholar
Seron, Carroll, et al. (2001) “The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City's Housing Court: Results of a Randomized Experiment,” 35 Law & Society Rev. 419–34.CrossRefGoogle Scholar
Sewell, William H. (1992) “A Theory of Structure: Duality, Agency and Transformation,” 98 American J. of Sociology 1–29.CrossRefGoogle Scholar
Silbey, Susan S. (2005) “After Legal Consciousness,” 1 Annual Rev. of Law and Social Science 323–68.CrossRefGoogle Scholar
Small, Mario (2009) “ ‘How Many Cases Do I Need?’: On Science and the Logic of Case Selection in Field-Based Research,” 10 Ethnography 5–38.CrossRefGoogle Scholar
Stinchcombe, Arthur L. (2005) The Logic of Social Research. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Belknap Press of Harvard Univ. Press.CrossRefGoogle Scholar
Thibaut, John, & Walker, Laurens (1978) “A Theory of Procedure,” 66 California Law Rev. 541–66.CrossRefGoogle Scholar
Tyler, Tom R. (1984) “The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience,” 18 Law & Society Rev. 51–74.CrossRefGoogle Scholar
Tyler, Tom R. (1989) “The Psychology of Procedural Justice: A Test of the Group Value Model,” 57 J. of Personality and Social Psychology 830–38.CrossRefGoogle Scholar
Tyler, Tom R. (1990) Why People Obey the Law. New Haven: Yale Univ. Press.Google Scholar
Tyler, Tom R., & Lind, E. Allan (1992) “A Relational Model of Authority in Groups,” 25 Advances in Experimental Social Psychology 115–91.CrossRefGoogle Scholar
Walzer, Michael (1983) Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books.Google Scholar
Weber, Max (1949) “Objectivity in Social Science and Social Policy,” in Shils, E. A., & Finch, H. A., eds., The Methodology of the Social Sciences. Glencoe, IL: Free Press.Google Scholar