A Review of
Title VII Sex and Race Discrimination Litigation Settlements as Opportunities for Organizational Change
Title VII discrimination settlement agreements don’t always lead to substantive change in employment policies and practices
In order to meaningfully address inequality in the workplace, Title VII discrimination lawsuit settlements agreements have to require substantive changes to employment policies and practices. Otherwise work goes on as usual.
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.
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.
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