Academic journal article Harvard Law Review

"Trading Action for Access": The Myth of Meritocracy and the Failure to Remedy Structural Discrimination

Academic journal article Harvard Law Review

"Trading Action for Access": The Myth of Meritocracy and the Failure to Remedy Structural Discrimination

Article excerpt

[S]elective incorporation of individuals [into an organization] disarm[s] the critics by trading action for access. (1)

Many Americans believe we now live in a meritocratic society in which everyone has an equal opportunity for success regardless of race or sex. (2) Half of the white respondents to a 2001 national survey believed that blacks enjoyed comparable or superior access to jobs. (3) Female employment in traditionally male fields is viewed as evidence that sex discrimination is no longer an obstacle to women's success in the workplace. (4) Facts, however, tell a different story. As of 2005, women were making seventy-seven cents for every dollar made by men. (5) Equally qualified employees with African American--sounding names have a more difficult time obtaining interviews than employees with white-sounding names. (6) Our society remains occupationally segregated. (7) In a word, it is unequal.

This Note examines two contrasting explanations of inequality in the workplace, the reasons individuals might attribute inequality to one of the two explanations, and the detrimental consequences of such attributions. The first explanation of workplace inequality suggests that the workplace is meritocratic and therefore individuals, through the choices they make, are responsible for any resulting inequality. The second takes the position that discrimination in the form of institutional, structural, and organizational constraints on the achievement of women and minorities still exists, and that numerical disparities in the workplace can largely be attributed to such discrimination. (8) This Note argues that the first explanation--the myth of meritocracy--has its origin in the "just world phenomenon," the cognitive desire to view our society, the organizations of which we are a part, and ourselves as just and legitimate. Even individuals who are members of groups that have been traditionally disadvantaged--individuals who might perceive subtle discrimination more readily--may perpetuate the myth of meritocracy, especially if they are upwardly mobile. This myth coopts possible system challengers, who instead legitimize the existing social structures. It also gets translated into law by judges who assume that individual failings--and not structural discrimination--are responsible for the numerical disparity between races and sexes. The resulting stringent legal standards make it difficult to prove the existence of structural discrimination.

Using law firms as a case study, this Note examines how this phenomenon plays out in the workplace. Law firms point to minorities' and women's "success stories" as proof that the law firm is a meritocracy. Women and minorities who have achieved positions of power at law firms themselves may also suggest that such law firms are just and fair. Unqualified legitimation of the system, however, may obscure the vast amount of structural discrimination that remains and lead to institutional complacency regarding diversity, making it more difficult to eradicate structurally discriminatory barriers to the advancement of women and minorities in the workplace.

Part I examines the two predominant explanations for an unequal and segregated workforce: individual merit and structural discrimination. It analyzes why individuals, especially upwardly mobile members of disadvantaged groups, are motivated to attribute inequality to individual failings. Part II explains the foundation of system-legitimizing rhetoric by upwardly mobile members of disadvantaged groups and analyzes the negative consequences of the resulting myth of meritocracy, focusing in particular on legal standards that are inadequate to combat structural discrimination and on the cooptation of potential system challengers. Part III applies the foregoing theory to the case of the law firm. It examines how law firms view themselves as meritocratic and use the success of women and minorities as proof of an absence of institutional barriers to advancement. …

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