Culture Matters: Cultural Differences in the Reporting of Employment Discrimination Claims

By Kim, Andrew Tae-Hyun | The William and Mary Bill of Rights Journal, December 2011 | Go to article overview

Culture Matters: Cultural Differences in the Reporting of Employment Discrimination Claims


Kim, Andrew Tae-Hyun, The William and Mary Bill of Rights Journal


Why don't reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title VII's administrative scheme-which was created precisely to remedy and deter such conduct-but also incurs a heavy litigative cost in employer liability suits. This Article claims that for certain minority groups, namely Asian Americans, certain cultural differences significantly heighten those structural barriers and consequently leave them underprotected in the legal system. The Article locates the cultural differences in two dimensions of cultural diversity-collectivism and particularism-and a Confucian philosophical norm. Ultimately, it asks and addresses whether the law should accommodate these differences or whether the ethnic minority should accommodate, and thereby assimilate to, the legal norm. It concludes that courts should, as with certain gender differences, consider cultural differences when assessing the reasonableness of the employee's actions in employer liability suits.

INTRODUCTION ................................................. 406

I. The Problem: An Assessment of the Findings of the EEOC WorkGroup .............................................. 409

A. The "Model Minority"?: The Asian American-Demographic in the United States ............................................ 409

B. Findings of the EEOC Work Group .......................... 411

C An Assessment of the EEOC WorkGroup's Recommendations ..... 414

II. The Legal Consequences of Underreporting Discrimination .... 416

A. Disuse of the Redress Mechanism and the Potential Loss of the Right to Sue ............................................. 416

B. The Loss of the Affirmative Defense in Employer Liability Suits: The U.S. Supreme Court's Decisions in Ellerth a^JFaragher ...... 419

III. Structural and Gender Barriers : A Comparative Analysis of Women's Sexual Harassment Claims ......................... 425

A. The Structural Barriers to Reporting Sexual Harassment Claims . . . 426

B. Gender Differences and the Consequent Disproportionate Impact on Women .............................................. 429

IV. Cultural Barriers: From the Cultural Diversity Database .... 432

A. Universalism vs. Particularism .............................. 432

B. Individualism vs. Communitarianism/Collectivism ............... 434

C A Common Legal Tradition: Confucianism in East Asia .......... 437

1. Applicable Confucian Values ............................ 437

2. Confucian Values in Contemporary East Asia ............... 439

V. Cultural Differences as a Barrer to Reporting Discrimination . 440

VI. Assimilate or Accommodate Differences? .................... 445

A. The Benefits of Assimilation ................................ 446

B. Cultural Costs and the Argument for Accommodation of Differences . . 448

Conclusion .................................................. 455

Introduction

This Article examines the role that cultural differences play in the reporting of employment discrimination claims and exposes the disproportionate impact that reporting requirements have on certain ethnic minorities. When employees experience discrimination, the law assumes that they report it. Indeed, the law has fashioned a complex and expensive web of administrative and judicial mechanisms on that assumption via the Civil Rights Act of 1964,1 which was created to address discrimination.2 The Equal Employment Opportunity Commission (EEOC),3 a federal agency with an annual budget of $367 million, was established to oversee the implementation of Title VII of the Civil Rights Act. …

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