The Impact of Employment Discrimination Litigation on Racial Disparity in Earnings: Evidence and Unresolved Issues

Abstract

What is the relationship between employment discrimination litigation and the relative earnings of blacks and whites in the United States? Do victories in court affect blacks' relative earnings? Are gains in earnings associated with legal victories enduring or temporary? Can litigation be an effective tactic in efforts at social reform? Data on plaintiff victories in employment discrimination cases decided by U.S. appellate courts from 1965 through 1985 show that victories are associated with significant and enduring increases in blacks' relative earnings. One implication is that at least in this area, the courts may bring about social reform.

Public Law Litigation: Lessons and Questions

“…120 Compare Viljoen and Louw (2007; emphasizing "the crucial distinction between the direct and indirect effect of human rights treaties"). 121 Burstein and Edwards (1994; explaining that in assessing the impact of litigation on racial income disparities, "no one has the necessary data to make the necessary calculations for litigation alone, much less litigation in comparison to other potential means of improving blacks' labor market outcomes").…”

Law as an Instrument of Social Change

“…Positivist accounts tend to conceptualize social change in terms of discrete, easily measured dependent variables associated with changes in the law, such quantifiable measures of shifts in public opinion (Rosenberg, 1991), or changes in material circumstances (Klarman, 1994;Burstein and Edwards, 1994). Rosenberg's numerical data about integration of schools and shifts in public opinion are an example of this positivist approach.…”

“…Research in this area conceptualizes law in many different ways. One approach is to focus on formal law, in the form of statutes, landmark judicial opinions, constitutions, and the like, to investigate how changes in formal law may bring about social change (see, e.g., Burstein and Edwards, 1994;Keck, 2009;Rosenberg, 1991). Much of this literature focuses on litigation, particularly impact litigation by social movements, and asks whether litigation is an effective strategy for bringing about social change (for a brief review, see Albiston, 2011).…”

Disparate Impact and the Quota Debates: Law, Labor Market Sociology, and Equal Employment Policies

“…Second, like pattern or practice suits, disparate impact cases often are filed by the government or as private class actions (Player 1988). These types of collective mobilization substantially increase the plaintiffs' odds of victory (Burstein and Edwards 1994). They also substantially increase the likely costs of these victories to employers.…”

“…They conclude that federal antidiscrimination in employment policy, in conjunction with federal antidiscrimination efforts aimed at education and voting, improved African Americans' status between 1965 and 1975-the very period in which disparate impact was invented. The early 1970s also are the period in which plaintiffs achieved their greatest appellate victory rates in disparate impact cases (Burstein and Edwards 1994). 11.…”