Academic journal article Law & Society Review

Race and Determinations of Discrimination: Vigilance, Cynicism, Skepticism, and Attitudes about Legal Mobilization in Employment Civil Rights

Academic journal article Law & Society Review

Race and Determinations of Discrimination: Vigilance, Cynicism, Skepticism, and Attitudes about Legal Mobilization in Employment Civil Rights

Article excerpt

Title VII of the 1964 Civil Rights Act prohibits race discrimination in employment, protecting workers from discrimination on the basis of their race (among other characteristics) in hiring, firing, promotion, and compensation decisions. Civil litigation by individual plaintiffs is the primary enforcement mechanism for Title VII, but sociolegal scholars long have recognized that a very small proportion of potential cases enter the legal system, much less go to trial (Ewick & Silbey 1998; Felstiner et al. 1980; Galanter 1983; Nielsen et al. 2010).

A growing body of scholars have begun to examine the dynamics of identifying a problem as a legal one (Albiston 2005, 2006; Curran 1977; Engel & Munger 1996; Ewick & Silbey 1998; Sandefur 2008), the institutional and ideological forces at work in these determinations (Albiston 2010; Haltom & McCann 2004; Nielsen & Beim 2004), as well as the supports and obstacles to entering the legal system to pursue remedies (Curran 1977; Sandefur 2008). We analyze the very bottom-most levels of the "pyramid of disputes" to explore the link between perceptions of legal harm-in this case race discrimination-and the determination of whether it might be worth talking to a lawyer about the problem (Felstiner et al. 1980; Miller & Sarat 1981).

Legal cynicism,1 a concept which refers to a sense of distrust in legal institutions and their ability to deliver fair and effective remedies (Bell 2016; Kirk & Papachristos 2011; Sampson & Bartusch 1998), may be important in this process. Research on legal cynicism principally has been concerned with perceptions of the criminal justice system, with police-citizen relations receiving the largest share of attention (Bell 2016; Carr et al. 2007; Hagan & Albonetti 1982; Hagan et al. 2005; Kirk & Matsuda 2011; Kirk & Papachristos 2011; Weitzer & Tuch 1999). Scholars have addressed the correlates of cynical views toward law and law enforcement and have examined the consequences of these attitudes for willingness to call upon legal authorities to help resolve problems. However, with few exceptions (Brooks & JeonSlaughter 2001; Nielsen 2004), the role of legal cynicism in shaping citizens' willingness to pursue remedies through the civil justice system has received scant attention. Using factorial survey data on perceptions of race discrimination in the workplace, we address this gap by examining the factors that account for disjunctures between perceiving discrimination and recommending that a victim turn to law.

Although race discrimination claims represent a significant share of employment civil rights litigation, accounting for between 33 percent and 38 percent of charges filed with the U.S. Equal Employment Opportunity Commission in any given year (Equal Employment Opportunity Commission (EEOC) 2015), prior research strongly suggests that only a very small percentage of workplace race discrimination triggers a formal legal claim (Nielsen & Nelson 2005). Empirical studies of legal mobilization show that a variety of factors are important to whether ordinary people understand their problems as legal ones (McCann 1994), but we know very little about how attributions of discrimination translate into considerations of utilizing law. Even when individuals understand that their legal rights have been violated and they know who is responsible, they may not choose to pursue a claim for a variety of reasons. They may fear retaliation (Berrey et al. 2012; Ewick & Silbey 1998). They may have become accustomed to being harmed without redress due to their social location (Sarat 1990). They may lack confidence that legal actors will believe their claims or be responsive to them, or they may refuse to identify as a "victim" in the way the law requires (Bumiller 1988; Nielsen 2004; Taub & Schneider 1998). They may not be able to afford an attorney (Myrick et al. 2012).

Moreover, because civil litigation serves as the primary institutional mechanism for enforcing social ideals of racial equality in the post-civil rights era (Freeman 1978; Lucas 2008; Nielsen et al. …

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