Situated Justice: Plaintiffs' and Defendants ...

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Situated Justice: Plaintiffs’ and Defendants’ Perceptions of Fairness in * Employment Discrimination Cases Ellen Berrey 1 Steve G. Hoffman 2 Laura Beth Nielsen 3

Abstract Litigants do not assess law’s fairness in universalistic, transcendent, or unchanging terms. Rather, their sense of fairness is dynamically situated within their lived experience and the particular social, organizational, and institutional contexts within which legal disputes transpire. This study develops the concept of situated justice and uses it to analyze perceptions of fairness among 100 plaintiffs, defendants, and lawyers interviewed about their involvement in employment civil rights litigation. We show three key situational factors that influence both plaintiffs’ and defendants’ perceptions of fairness: 1) changes over time in the party’s orientation toward law and the dispute; 2) the ability to control and manage a lawsuit; and 3) the costs of litigation. Plaintiffs, as relatively inexperienced legal actors, initially look to law as a means of vindication but then encounter a range of obstacles that leave them feeling disillusioned with the law’s ability to produce fairness. Defendants, as repeat players with greater resources, view law as a mundane if unfortunate cost of business; they consider the legal system unfair because it is too open to problematic employees with meritless cases. These findings advance research on procedural and distributive justice by identifying largely unrecognized influences on how litigants construct legal fairness.

* This research was funded by the American Bar Foundation, the National Science Foundation (# SES-0417389), and the Searle Foundation. The research benefited from participation in the Discrimination Research Group, a joint effort funded by the American Bar Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Ford Foundation (#1045-0189). We thank Robert Nelson, Mary Rose, Rebecca Sandefur and other colleagues who provided helpful comments. Previous versions of this paper were presented at the 2009 Law & Society Association annual meeting, the 2009 American Sociological Association annual meeting, and the Emory University School of Law. Correspondence should be directed to Ellen Berrey at [email protected].                                                              1

University at Buffalo, SUNY  University at Buffalo, SUNY  3 Northwestern University and the American Bar Foundation  2

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I. Introduction In 1988, Chris Burns, an African-American machinist for the U.S. military, injured his back on the job while carrying a heavy metal plate. He requested different work responsibilities and was fired soon after. He turned to the legal system for recourse and, like many plaintiffs, found what seemed like a series of formidable obstacles stacked against him, with few resources to help navigate law in his favor. Mr. Burns tried to find a lawyer, appealing to private attorneys, legal aid clinics, and congressional representatives. He even sent a message to the President of the United States. Nobody was willing to help him. With the assistance of his wife and uncle, Mr. Burns, who had only a high school diploma, filed a lawsuit. When his case finally reached a judge, the substantive claims of discrimination and retaliation were not considered. The court dismissed his case, citing Burns’ “failure to exhaust administrative remedies” and “failure to answer a motion for dismissal.” Mr. Burns had 30 days to revise his original complaint, but he did not understand that. He thought the case was over. “I got so, you know, depressed,” he explained. “They send you through all this red tape gobbledy-goo, and they say these big 25cents words. And you know without a lawyer degree that you don’t understand a thing that they are telling you.” Chris Burns’ frustrations, first over his inability to find adequate legal representation and then to understand and control the legal process, are typical. Although a minority of employment discrimination plaintiffs report satisfaction with their settlements, the overriding sentiments among plaintiffs are disappointment and disillusionment—not just with case outcomes, but with worker protections and the broader system of litigation. Although initially optimistic about their chances of gaining vindication, or at least recognition that something bad happened to them, most plaintiffs are left with a sense that they have been mistreated by the legal system.

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Defendants echo this dissatisfaction with employment discrimination litigation, but they tend to view it as a necessary if unfortunate cost of doing business. They perceive the law as unfair because the civil justice system allows disgruntled and uninformed employees to easily pursue legal action based on inaccurate perceptions of discrimination. Many defendants, including Bill Williamson, a 52-year old white attorney who works for the same branch of the military as did Chris Burns, think that the vast majority of employees who file discrimination lawsuits do not, in legal if not subjective fact, have a legitimate claim. According to Mr. Williamson, “That’s a big problem—trying to change someone’s perception of what’s happened to them. Sometimes they don’t want to accept the reality of the circumstance. Maybe they weren’t the best qualified person for the job after all.” While a small settlement is often the most economical option, defendants say it feels more like blackmail than an equitable resolution to an employment or “personality” conflict. This paper examines how plaintiffs and defendants understand and construct “fairness” within the process of employment discrimination litigation. Our findings are based on 100 indepth interviews with plaintiffs, defendants, and their lawyers. The interview sample was strategically selected from a larger random sample of employment discrimination cases filed in U.S. federal court between the late 1980s and early 2000s (Nielsen, Nelson and Lancaster 2010 (forthcoming)). Unlike most studies that examine people’s views on legal fairness, our approach foregrounds the expectations that plaintiffs and defendants bring to a case and their actual experiences within it. We argue that litigants’ sense of fairness is not based on an unchanging or universal calculation that can be neatly abstracted from lived experience, as is assumed in much research on procedural justice. Instead, our analysis reconstructs how litigants dynamically develop, struggle to make sense of, and change their perceptions of fairness based on the

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obstacles they encounter. Drawing upon the legal mobilization and legal consciousness literatures, we develop the concept of “situated justice.” This concept attends to the broader context within which people formulate their perceptions of justice and fairness, namely litigants’ expectations of the legal process, their lived experiences of legal cases, and the experiential, organizational, and institutional dynamics that shape their cases. 4 We examine situated justice within the context of employment civil rights lawsuits—which are the largest single type of case filed in U.S. District Courts—and commonly are messy conflicts that unfold on an uneven playing field. We find that both parties’ perceptions of fairness are universal in one sense: while the idea of fairness is far more salient for plaintiffs than for defendants, it matters for both. Our empirical findings advance scholarly understanding of procedural and distributive justice by revealing three key situational factors that influence both parties’ sense of fairness: 1) changes over time in the litigant’s orientation toward law and the dispute; 2) the ability to control and manage a lawsuit; and 3) the costs of litigation. Plaintiffs in employment civil rights cases typically have a limited history with lawsuits and therefore struggle to navigate the complex legal procedures—a problem exacerbated for the 23% of plaintiffs who bring their case pro se, or without a lawyer (Nielsen et al. 2008). They discover further obstacles as they confront the personal travails associated with going through a lawsuit as well as the significant monetary costs of litigation. As inexperienced legal actors, they tend to lack both the technical knowledge and skills to control the course of litigation. Their experiences of the litigation process, combined with their initial (and, unfortunately, naïve) belief                                                              4

Our approach parallels Pierre Bourdieu’s discussion of a sociogenetic analysis (1993), which seeks to reconstruct how human personality, perception and behavior develop over time and are propelled forward by social and institutional factors in their totality. Thus, the concept of situated justice is offered as an alternative to approaches that tend to artificially cleave perception from the real-world messiness of lived experience. 

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the law is set up to protect them, can lead to a profound sense of disillusionment in law and its ability to deliver fairness. On the other side of a legal dispute, our analysis reveals that defendants—as repeat players with greater material, cultural, and experience-based resources to draw upon—react strategically and pragmatically to minimize employee accusations and reduce the legal expenses of a case. They consider the vast majority of plaintiffs to be problem employees who bring forward meritless cases. They perceive law as most unfair at the points where they have the least control: particularly, the ability of plaintiffs to file and pursue claims in court. Legal scholars examine doctrinal and technical matters to determine if a legal case has been fairly processed and adjudicated. These technical measures, however, may differ significantly from the factors that plaintiffs such as Chris Burns or defendants like Bill Williamson consider when they assess the fairness of a legal case. Research on procedural justice has attempted to rectify this bias toward legal rationality by identifying the bases upon which plaintiffs form perceptions of legal fairness and how these perceptions, in turn, predict future legal behavior (e.g., Greenberg 1987; Lind and Tyler 1988; Naumann and Bennett 2000). Yet, such studies continue to underplay how plaintiffs and defendants construct the meaning of fairness in actual litigation (for some exceptions to this generalization, see Tyler, Huo and Lind 1999) . Our concept of situated justice characterizes how litigants experience and come to think about fairness in the process, resolution, and aftermath of real-life legal cases. The concept underscores how people’s options, experiences, and perceptions depend on the contingencies of actual legal cases, their experience and comfort level with legal procedures, and their social, organizational, and institutional locations. This notion of situated justice and our analysis of it in

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employment discrimination cases follows Tyler and Lind’s call to understand situatedness (Lind and Tyler 1988:110), in that we consider the different criteria that people use to assess fair process in different circumstances. Moreover, our findings advance scholarly understanding of procedural justice by drawing greater attention to the temporal, dynamic, and perspectival aspects of justice and by identifying specific situational factors that influence people’s assessments of law’s fairness. The article proceeds in five parts. In part two, we use concepts from the literatures of procedural justice, legal consciousness, and dispute processing to argue for a needed intervention we term “situated justice.” Part three elaborates the methodology for the larger study and this paper in particular. Part four identifies three major themes that plaintiffs and defendant rely on when assessing the fairness of their case (or cases). We elaborate how plaintiffs and defendants construct and reconstruct the case as it occurs, their feelings of control over litigation processes, and costs of litigation to highlight the importance of a situated analysis for analyzing fairness. Finally, we conclude with a discussion of the value of situated justice for reconciling the dichotomy in how scholars typically analyze distributive and procedural outcomes in the litigation system.

II. Literature and Contributions Law’s legitimacy generally and court processes in particular crucially rely on participants’ perception that the process is fair (Lind and Tyler 1988; Tyler 1990). Without processes that seem fair, participants view substantive outcomes as suspect (Tyler 1984; Tyler 1990). Litigants may not only lose their case, but also lose confidence in the litigation process and perhaps law itself. However, procedural justice may be meaningless without distributive justice (MacCoun

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2005; Sarat and Kearns 1993). After all, litigants pursuing their cases in the legal system believe they have experienced a harm that they think should be redressed by the other party, but they have met resistance in the workplace. Otherwise, they would not be in court. Even if plaintiffs are not able to get everything they think they deserve, they may require something more than a fair process to feel vindicated. Likewise, legitimacy is not just for litigants; all citizens have a stake in both the procedural fairness of litigation and litigation’s distributive outcomes.

Procedural Justice Social psychologists have identified the importance of “procedural justice” by examining people’s views on justice and fairness and the ways those views translate into perceptions of the legitimacy of the legal system (MacCoun 2005). Early work on procedural justice attended to the interaction between what participants in the legal system expected and what they actually experienced (Folger 1984; Thibaut and Walker 1978), demonstrating that a distributive or substantive outcome—whether a plaintiff wins or loses—is not as meaningful for plaintiffs as their experience of the process of law (Lind and Tyler 1988; Tyler 1984). Plaintiffs want to feel they have been treated fairly. This scholarship and subsequent studies have repeatedly shown that if people perceive that law is procedurally fair, then they think it is legitimate and worth obeying (Lind and Tyler 1988; Tyler 1990). The surprising and ground-breaking finding that litigants are more concerned about whether their encounters with law were fair than whether they won or lost in the substantive outcome spawned several strands of procedural justice research. One important strand of this research concerns how perceived legitimacy affects law-breaking behavior. Social psychologists have conducted several experimental studies about how subjects

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perceive fairness when prompted with various scenarios about the law (Hafer and Bègue 2005; MacCoun 2005).

Much of this research relies on simulated hypothetical conflicts and

multivariate statistical analysis (but see, e.g., Blader and Tyler 2003; Collie, Bradley and Sparks 2002; Tyler and Folger 1980). With a few exceptions (Beckman et al. 1994; Lind et al. 1993; MacCoun et al. 1988; Tyler 1990), scholars use pre-tested scenarios to elicit research participants’ feeling about fairness in the abstract. These scenarios test the influence of people’s perceptions of consistent rules, their moral regard for law, and other pre-selected process variables. Researchers have found, for example, that people believe procedural fairness is lacking when a court decision challenges their closely held moral beliefs (Mullen and Nadler 2008; Skitka 2002). Lind and Tyler’s groundbreaking work demonstrated the effects of being treated unfairly by the legal system. While an important intervention, the research that this insight inspired has mostly opted to seek out the universal correlates of fairness via pre-selected, standardized scenarios rather than focus on how people construct and evaluate fairness within the messiness of actual litigation situations. Most research in this area has not attended to the factors that influence people’s understanding of fairness in the course of actual legal cases, much less in everyday life, despite recognition that there are “situationally based differences in the meaning of procedural justice” (Lind and Tyler 1988:110), depending on such factors as whether the parties’ interactions with law were voluntary and the type of problem they encountered. 5                                                              5

The study of procedural justice also has been critiqued as “Machiavellian” (Sarat 1993), or at least a “double-edged sword” (MacCoun 2005). Critics point out that if people care only about procedural fairness, substantive outcomes may suffer. In other words, sophisticated parties or, worse still, the state may be able to manipulate the process to satisfy participants’ procedural preferences without achieving substantive justice (Sarat 1993). We agree with many of these criticisms and with the necessity of analyzing courts “not as institutions whose primary role is to resolve disputes and authoritatively allocate tangible resources” but instead as “crucial cultural institutions” (Sarat 1993:660). Law’s categories and frameworks normatively construct how people think about fairness and responsibility. Legal processes, therefore, are not just fair or unfair but are processes by which meanings are actively “built up” through interaction (Blumer 1962)  

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Legal Consciousness and Dispute Processing A different branch of sociolegal research, primarily conducted by sociologists, political scientists, and anthropologists, has highlighted some of the ways in which people’s personal, organizational and institutional contexts influence their experiences of law and lawsuits. Much of this work analyzes how disputing relationships and conflicts change with the involvement of attorneys and courts and how parties perceive the law’s handling of their particular dispute or situations. Legal consciousness frameworks emphasize the law not just as a set of institutional structures but as an evolving set of schema that exists in the minds of individuals. These evolving schema are simultaneously affected by other social structures like the media (Haltom and McCann 1999; Haltom and McCann 2004a; Nielsen and Beim 2004), individuals’ experience with the law (Ewick and Silbey 1992; Ewick and Silbey 1998; Nielsen 2000; Sarat 1990); and their social location (Edelman, Fuller and Mara-Drieta 2001; Ewick and Silbey 1998; Nielsen 2000; Sarat 1977). Some scholarship on dispute processing has focused on the individual’s experience of the process, emphasizing that individuals often do not know they are harmed (Felstiner, Abel and Sarat 1980; Fiske 1998; Fiske 2005; Major et al. 2002; Major and Kaiser 2005). Even when they do know, they are reluctant to make a claim for a variety of reasons. They may have insufficient access to lawyers (Curran 1977). They may not want to be classified as a victim (Bumiller 1987) or a “greedy plaintiff” (Haltom and McCann 2004a). They may find that they would be loathe to conform to law’s categories because the law’s “solution” to their “problem” so inaccurately represents how they view the world (Engel and Munger 2003; Sarat and Felstiner 1995). This research also demonstrates that when individuals turn to law they find their disputes transformed

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by lawyers (Sarat and Felstiner 1995), and by the courts themselves (Merry 1990) in ways that are unsatisfying to plaintiffs because the legal dispute bears so little relationship to the original problem they faced (ibid). Another strand of work on dispute processing investigates how employers manage disputes. This work shows the many ways in which employer-organizations avoid and moderate legal disputes. Employers rely on standardized procedures and managerial rhetorics to distance and buffer their internal workplace practices from law (Dobbin and Kelly 2007; Edelman 1992; Edelman, Fuller and Mara-Drita 2001). These include the use of third party mediation to address workplace disputes (Edelman, Erlanger and Lande 1993) and various offices, practices, and procedures, such as EEO policies (Edelman 1990; Sutton and Dobbin 1996). These organizational strategies of managing disputes serve to shape the very conditions under which individual plaintiffs pursue a legal case and consider law’s fairness, biasing these conditions in both subtle and explicit ways in favor of employers’ interests. For example, courts may treat employers’ measures such as diversity offices and affirmative action plans as indicators of employers’ legal compliance, assuming at face value that they are effective (Edelman et al. 2008) despite mixed scholarly findings on their efficacy (Kalev, Dobbin and Kelly 2006). Taken together, research on legal consciousness and dispute processing directs our attention to how people’s sense of satisfaction with the legal system is a product of how they think about the law in everyday terms and their broader contexts—their social locations, the role of professionals like judges and lawyers, and organizational routines for managing disputes. The scholarly analysis of fairness should account for such dynamics.

Situated Justice

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“Situated justice” refers to the full array of conditions that influence litigants’ perceptions of legal fairness in real-life situations. We conceive of perception as simultaneously nested in a series of analytic units ranging from personal attributes (e.g. temperament, experience, cultural, social and economic capitals, etc.) to the broader institutional contexts that shape litigation. As the legal consciousness and dispute processing literatures show, these contexts include the messiness of the lawsuit, the influence of legal authorities, and the ways that organizational routines and unequal access to resources create an uneven playing field of law. Importantly, the ways in which people experience a lawsuit, from their initial constructions to later reconstructions of that experience, may change over time as these broader contexts and their individual life situations change. Their experiences also are contingent on their relative assessments of how the other side is faring. From a situated justice perspective, then, people’s perceptions of fairness should not be assumed to be either dichotomous (e.g. fair vs. unfair) or unchanging (i.e. perception at Time 1 is the same as perception at Time 2), but rather as highly temporal and dynamic. While it is certainly possible that litigants construct fairness in dichotomous and unchanging terms, forcedchoice survey and interview questions should be careful not to impose these characteristics on subjects’ perceptions. When they do, closed-ended research protocols can underplay the ways that parties to a lawsuit may be ambivalent or equivocal in their evaluation of fairness, or may miss how a litigant’s view of fairness may change at different junctures of a case, or fail to consider the influence of the litigant’s social, organizational, and institutional locations.6 We                                                              6

The present study can, of course, be accused of reproducing the same problems. Although we extensively probed subjects’ sense of fairness and satisfaction at different junctures in the case, we only interviewed them at a single point in time, therefore limiting our ability to track changes over time. However, our general point is not that all studies must be empirically pure, but rather that by focusing on situational dynamics, we can better reconstruct legal experiences and attitudes than can research that converts particular experiences and perceptions into timeless universals likely to occur anywhere.  

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develop the notion of situated justice as a way of turning our analytic focus away from people’s abstract ideas or universal ideals about fairness and more toward their actual expectations for and experiences of fairness. Employment civil rights disputes provide an excellent location for studying situated justice and perceptions of fairness. Employment civil rights lawsuits are a prevalent portion of cases filed at the national level. Questions about how individuals understand fairness take on added importance in the area of civil rights law because litigation is the primary mechanism for attempting to enforce civil rights law in the contemporary United States. Called a “litigious policy,” anti-discrimination policies in the United States are enforced via individual rights which require individuals to file civil lawsuits for enforcement (Burke 2003). In the employment discrimination context, we examine the construction of fairness in disputes where individual employees (by inclusion in the sample) have faced what they perceive as an unfair process of dispute resolution in the workplace and where defendant-employers are responding to their charges. We rely on qualitative data from the parties and their lawyers on both sides of the claims studied. As MacCoun (2005) and others observe, current research in procedural justice can be enriched by studies that utilize in-depth interviews and participant observation and, we would add, greater attention to real legal cases. Our inclusion of both plaintiffs and defendants is unique, as is our data on how these parties construct their oftendivergent understandings of similar cases and, in some instances, the same case. Moreover, our analysis of situated justice in these disputes is relational, in the sense that we explore how the arguments on one side of the case affect and shape the arguments on the other side of the dispute, and vice versa (this is quite different from both the procedural justice and dispute processing literatures, e.g., Albiston 2005; Engel 1993; Engel and Munger 2003;

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Ewick and Silbey 1998; Marshall 2003; Merry 1990; Nielsen 2000; Sarat and Kearns 1995). This approach enables us to consider a litigant’s perception of fairness not in terms of abstract principles (as measured in quantitative scales) but holistically. Building on work by Nielsen, Nelson, and Lancaster (2010 forthcoming) and Tyler, Huo, and Lind (1999) on case sequencing, our analysis of situated justice also investigates how people’s perceptions of fairness vary over the course of a case. We attend to the shifting organizational circumstances surrounding a case (e.g. a defendants’ strategic decision to offer a small settlement); the changing life circumstances of a litigant (e.g. a plaintiff’s loss of a job); and other time and stage sensitive contingencies. Overall, this strategy helps account for temporal shifts in perceptions of fairness.

III. Methods This qualitative study is a subset of a larger, mixed-methods study of employment discrimination litigation. The quantitative data set is a random sample of employment discrimination cases filed in federal court in seven districts between 1988 and 2003 (Nielsen, Nelson and Lancaster 2010 (forthcoming); Nielsen et al. 2008). 7 It is an expanded replication of Donohue and Siegelman’s study of employment civil rights litigation between 1972 and 1987 (Donohue 1992; Donohue and Heckman 1997; Donohue and Siegelman 1991). The qualitative interviews were designed to highlight two important dimensions of employment discrimination litigation revealed in the quantitative research: the most common types of employment discrimination and the most theoretically meaningful case resolutions.                                                              7

These seven districts contain about 20% of all filings in the nation, capture variation in legal and social context, and, for cost considerations, are located close to federal records depositories. The initial sample was 2,100 cases; three hundred cases for each district were drawn from the Administrative Office of the U.S. Courts’ list of all civil employment discrimination cases (classified under §442) filed in these districts from 1988 to 2003. Sampling weights by district were derived based on the total number of employment discrimination case filings in each district. The findings reported here are based on data from the closed cases (n=1,805) with all required key variables for the analysis, producing a final sample for analysis of 1,672 cases. 

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Analysis of the quantitative data found that race, sex, age, and disability are the four most common causes of action in employment civil rights claims between 1988 and 2003 (Nielsen, Nelson and Lancaster 2010 (forthcoming); Nielsen et al. 2008). Analysis also identified the outcomes of those cases that were not thrown out by the court on summary judgment—in other words, cases that were deemed by the court as including a legitimate legal claim under employment civil rights law. These outcomes include dismissals (which account for 19% of cases filed); early settlements, which occur before motion for summary judgment is heard (50% of cases); late settlements, which occur after some portion of the case survived a motion for summary judgment (8% of cases); and cases that go to trial (6% of cases). From the quantitative filings data for two districts, we drew a random subsample of cases for in-depth study. We selected these cases using a 16-cell grid to capture the cases that involve at least one claim based on race, sex, age, and disability and that end in dismissal, early settlement, late settlement, or trial. We began by interviewing the plaintiffs in these cases and, when feasible, interviewed defendants and lawyers in the same case. 8 When this was not feasible, we selected lawyers and defendants from cases in the random subsample. We interviewed a total of 100 individuals across these cells: 41 plaintiffs; 20 plaintiff lawyers; 20 defendants; and 19 defendant lawyers.

The interviewees are not meant to be statistically

representative of those parties and lawyers involved in employment discrimination lawsuits across the nation; rather, we have used “sampling for range” to increase the likelihood that we capture both salient and nationally relevant dynamics within the legal cases (Small 2009; Weiss 1994). The plaintiffs worked for private companies, non-profit organizations, or government                                                              8

The interviews were conducted primarily in-person by Laura Beth Nielsen, Ellen Berrey, and Robert L. Nelson.

 

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entities that they filed cases against (see Appendix, Table 1). 9 Of the 41 plaintiffs, 25 were white, 11 were African-American, 23 were male, and 18 were female. At the time of our interviews, only one of the plaintiffs still worked for the company, non-profit organization or government entity against which they filed a case. Defendants interviewed are employed by a company, non-profit organization, or government entity as human resource professionals or attorneys who serve as in-house counsel or who work in the legal department and typically handle employment matters (but also may have some HR management responsibilities). A slight majority of defendant interviewees were white female attorneys. By “defendants’ lawyers,” we mean lawyers in law firms that the defendant-organizations hire if the case gets too large or complex. Of course, not all defendants hire outside counsel; cities and other government-employers almost never do. Our interview protocols consisted of semi-structured, open-ended questions about closed legal cases the parties had been involved with. Specific questions differed depending on the type of interviewee. The interview protocol for plaintiffs focused on their experiences of discrimination on the job, the subsequent legal actions they took, and their understanding of what happened in their case. We asked defendants to speak on employment discrimination complaints and lawsuits against the employer organization. Questions focused on their organization’s general strategy for managing employment discrimination lawsuits and on defendants’ perceptions and experiences of either the specific case that we drew in the subsample or, if the defendant did not remember or know that specific case, they were asked about a closed employment discrimination case they did know well. (We did not specifically ask defendants about cases in which they, individually, may have been accused of perpetrating discrimination against someone else). Both plaintiff and defendant interviews ended with a series of closed                                                             9

One plaintiff was deceased, but his son, who was an active participant in the litigation, agreed to be interviewed.

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ended demographic and attitudinal questions. Most interviews lasted about one hour. Almost all of the interviews were tape recorded and transcribed; handwritten notes were taken when interviewees refused to be recorded. All interview transcripts and notes were coded with NVivo qualitative analysis software. The coding scheme was developed both inductively (codes were added and refined throughout the process) and deductively (several codes were based on the interview protocol) (Miles and Huberman 1994). We also conducted a second wave of coding to capture in greater depth those themes that capture plaintiffs’ and defendants’ general perceptions and experiences of the legal system, their perceptions of fairness, and their sense of satisfaction. Following standard practices of qualitative research, the goal of the qualitative analysis is to use rich description to identify generalizable mechanisms and processes (Lofland and Lofland 1995). While our analysis covers those bases of discrimination and outcomes that are statistically representative of the nation, our discussion highlights the process-oriented mechanisms—a combination of experiences and interpretations thereof—that shape people’s perceptions of fairness. These mechanisms can be tested in future experimental studies, although this is beyond the scope of this paper.

IV. Situated Justice: Situational Factors Shaping the Parties’ Perceptions of Fairness Whether pursuing or defending a case, each party confronts a situation that is messy and complicated. Typically, the two sides fundamentally disagree about what happened in the workplace and whether it should progress to court. Frequently, a combination of factors exacerbates this already tricky situation. In addition to discrimination or perceptions of discrimination, these can include other inappropriate or illegal behavior, poor performance by

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employees, inadequate management, workplace dysfunction, company downsizing, or additional legal claims such as defamation and wage-and-hour. Any given case can contain within it multiple claims, sometimes with different allegations. Multiple claims may be related—say, sexual harassment causes a disability. Plaintiffs’ personal troubles, such as medical problems and financial constraints, can further complicate the situation. Despite these complications, we identified three common factors that profoundly influenced both plaintiffs’ and defendants’ assessments of the fairness of discrimination law: 1) changes over time in each parties’ assessment of the workplace dispute and the law’s ability to resolve it; 2) the ability to control and manage a lawsuit; and 3) the array of costs involved with pursuing or defending against a lawsuit. It is around these areas that both sides construct their (quite different) perceptions of what constitutes legal fairness out of their situated histories of lawsuits. Below we reconstruct these three factors through the eyes of each party, first the plaintiffs and then the defendants.

1) Changes over Time in the Parties’ Orientations toward Law and the Dispute The first aspect of situated justice we highlight is its contingency over time. As lawsuits progress, plaintiffs and defendants understand them differently.

Parties have different

expectations about what will happen and what they learn over the course of a lawsuit (in the case of plaintiffs) or multiple lawsuits (in the case of defendant-organizations).

1a)

The Plaintiff Trajectory: From Vindication to Disillusionment “It’s a good case, but the legal system didn’t work. It didn’t help me. I fell through the cracks.”

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One key to our understanding of the plaintiff experience in discrimination lawsuits is that they are one-shot (or, at most, few-shot) players. They must rely on experiential samples of one or fewer (March, Sproul and Tamuz 2003) in making sense of their case. As current or former employees, plaintiffs seek redress for something that occurred to them in workplace that they experienced as an affront to their personal identity and sense of self-respect. They begin their case with the premise that someone at their employing organization acted inappropriately and that managerial or other workplace mechanisms failed to remedy the situation. They hope the legal system can provide that mechanism. These conditions mean that they will tend to maintain a very high ego-investment in both the process and outcome of their cases. Plaintiffs tended to report a series of (empirically) unrealistic expectations when they recalled their original motives for pursuing their lawsuit. The believed their case would be decided based on its substantive merits, rather than technical procedures. They looked forward to getting their jobs back along with adequate financial compensation for the time they were unemployed. These goals, and their subsequent attempts to realize them, shape their sense of fairness, including their growing disillusionment with the law. Plaintiffs typically began their legal case with the optimistic belief that the law would vindicate the wrongdoing they experienced. They look to law as recourse to fairness. Over time, as they confront surprises, challenges, and obstacles during the litigation process and as they become attuned to how the legal system operates, they tend to become progressively more disillusioned with the law’s ability to deliver fairness. Gradually, they develop a more strategic orientation toward the case that focuses on minimizing its emotional toll on their psyche and the financial toll on their pocket book. By the time we interviewed them,

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over 75 percent of our plaintiffs thought that either the whole legal system or specific aspects of it were biased against them. Typical was Gerry Handley, a 34-year old African-American computer operator, who suggested that the legal system failed him despite having a strong, welldocumented case: [My employer] underestimated me at all times, you know what I mean? They thought that I was just like this black man that was stupid and that they could just do whatever they wanted…I had a good case. And I knew that. I would write stuff down and I’d keep it and I would confirm it by telling the people that this happened…And they kept it a secret for me. It’s a good case, but the legal system didn’t work. It didn’t help me. I fell through the cracks. Plaintiffs that pursued all or part of their case pro se (12 total) have especially acute feelings that law is unfair. Jimmy Williams, a 38-year old African-American laborer who filed his case pro se against a railroad company, explains, “I lost everything, you know, and given the fact that, like I said, I’ve never been arrested for anything. I’m thinking the law exists for everybody. You know how they say it’s, ‘justice?’ It’s ‘Just Us.’ Not justice for all…’Just Us.’” Plaintiffs developed sentiments like these based on their particular experiences throughout the litigation process, not in the abstract, and in comparison to what they see defendants’ experiencing, as demonstrated by Jimmy William’s play on the word “justice.” Many plaintiffs experience the technical requirements of law, particularly the procedural rules, as barriers to their ability to successfully pursue their goal of vindication. Chris Burns, the shipfitter described at the outset of this paper, explains that his case was dismissed for what he perceived as a ridiculous procedural rule: They say [my case was dismissed because] my doctor was late getting them the

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letter. And for twelve years, I been fighting them! … For me to fight for twelve years and you going to tell me [I lost] because I was late with a letter?. . . You know, come on. And, the doctors are still saying the same thing. I don’t care if it was late or early. He’s still saying the same thing. Chris Burns thought he should be allowed to pursue his case fully and completely, based on its substantive content, rather than get thwarted by an arbitrary rule. Such feelings contributed to his and other plaintiffs’ growing sense of disillusionment with the law. Another idealistic expectation that plaintiffs bring to litigation, and one that contributes to their eventual disappointment, is that they will get their jobs back. Slightly over 40% of plaintiffs interviewed hoped to get their jobs back (or, if still employed, to keep their jobs) when they filed their lawsuit. This almost never happens. They also hoped to receive substantial financial compensation from the employer. Although they were somewhat more likely to receive some compensation than to get their jobs back, rarely do plaintiffs consider the compensation they received to be adequate, especially after they have paid attorneys’ fees. Whether they win or lose, and whether they get a large or small settlement in the bigger picture, plaintiffs are largely disappointed by the final resolution of their cases. They expressed unhappiness with the process that decided the final outcome. Many believed they lost for reasons that had nothing to do with the validity of their claim: they think that they did not get a fair hearing or that their lawyer failed them by pressuring them to accept an offer they did not agree with. They also are largely dissatisfied with or have strongly mixed feelings about the final outcomes of their legal cases. Only three plaintiff interviewees reported that they were “very satisfied” with the outcome of their case. Twenty-three reported that they were “not at all satisfied” with the outcome. Fifteen expressed strongly ambivalent feelings about it.

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Many plaintiffs emphasize that they are dissatisfied because they did not get the primary things they wanted—their jobs and adequate financial compensation. At first we were surprised by plaintiffs’ dissatisfaction with losing their jobs. Who would want to stay in a workplace where they were treated so poorly? As the interviews progressed, we realized that people only fight this hard over a job that they consider good. As we looked across plaintiff work histories, we learned that people sue over those jobs that they really want to keep (and for many, sadly, these end up being the last jobs that they ever hold). Sam Grayson, a police officer with a disability, described his $100,000 settlement (which was one of the largest among our plaintiff interviewees and larger than the average $30,000 settlement in our national sample (Nielsen et al. 2008) as “not anything big,” noting that a large portion of that went to his attorney. When asked if he thinks $100,000 is a fair outcome, he said: R: Well you know what? I didn’t want any money, I wanted my job back…and I, actually to be completely honest with you, cried and left and felt like I lost because it wasn’t about the money. I: So even at that point you were still hoping to get your job back? R: Yeah. This dissatisfaction about not being reinstated—among what observers might think of as big winners and big losers—confirms prior findings that workers drastically misjudge the degree of job protection that law can provide (Kim 1997). Other plaintiffs echoed the sentiment that it was “not about the money” and that they had other goals in mind in pursuing the lawsuit, such as holding their employer accountable. At least 22 of our plaintiff interviewees won some kind of financial compensation, and half of these plaintiffs reported that they were at least somewhat satisfied with the outcome of

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their case (a far greater rate of satisfaction than for those who won no financial compensation). Yet most of these 22 plaintiffs report regret and disappointment about the resolution because they felt the financial compensation was inadequate, the offending individuals had not suffered adequately, or the discriminatory practices at the employing organization had continued. Catherine Harris, a 50-year old white human resource manager who described her $160,000 early settlement as a “victory,” also recounted many reasons for her disappointment in the outcome. One of the most salient reasons was that the individual bad actor was not terminated from his job with the city. She viewed this as an affront to the principle of public service and to her pride as a city employee and resident: As someone who is very proud of a public service career, I did not feel comfortable with this individual being in a leadership role in a city that, in any city, but one that I was proud of and one that I was associated with and my city that I lived in. . . . And I think I felt a responsibility maybe to want to. . . [see if that] could be fixed or corrected somehow, but I think that was more wishful thinking when you’ve got all the politics. You basically, I think he was a golfing buddy of the City Manager, and until the City Manager was going to leave, he wasn’t going to probably leave, and all that stuff was well out of my control. Ms. Harris and many other plaintiffs who lack experience with litigation have laudable but, unfortunately, inflated expectations about what law can deliver. Although the sources of these expectations are unclear from our interviews, employees may learn them from media sources— which inflate plaintiff victories and awards in employment discrimination cases (Nielsen and Beim 2004) as well as in tort cases (Bailis and MacCoun 1996; Haltom and McCann 2004b)— and even from employers and insurance industry analysts, who depict anti-discrimination law as

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a boon for plaintiffs and their lawyers (Bisom-Rapp 1999). Such expectations contribute to their ultimate disappointment or disillusionment with law’s ability to deliver fairness. Plaintiffs do derive a sense of vindication from the notion that they fought for what they felt was just. Almost half of the plaintiffs (19) stressed that, even if they lost, they were glad that they had pursued the case for the sake of their own personal convictions. Sam DeLuca, a 46-year old white policy analyst who lost at trial, explains: I did what I could do to fight what I thought was an action that was sort of improper… I fought back to some extent… I don't want to say that it's that cliché. You had your day in court or whatever. But it's like, okay, you know this wasn't right and I was able to do something. Plaintiffs may hold onto such sentiments as possibly the only comfort and the only viable retrospective explanation for the tremendous personal and financial costs they have born. Yet, such beliefs about the importance of a principled legal fight—reinforced by some popular media accounts, by many political activists, and by the plaintiffs bar—are part of these plaintiffs’ broader orientation towards justice and are consequential for their experience of fairness. Such sentiments factor into plaintiffs’ overriding belief that law is, in some respects, a venue for pursuing justice and a means to fairness because of the opportunity it provides to stand up for one’s convictions. As other scholars have shown (Adler, Hensler and Nelson 1983), people who file lawsuits commonly hope for an opportunity to tell the whole story of their case to a legal authority. Some of the plaintiffs we interviewed (7) felt they had the opportunity to tell their full story to a lawyer, a state fair employment agency, the Equal Employment Opportunity Commission (EEOC), a judge, or a jury, and this experience bolstered their sense that law could

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be fair. Shelly Simmons, a 45-year old black female lab technician, felt affirmed when the judge in her case sympathized with their side of the story. She explained, The trial vindicated me. Well, the process from where I started representing myself to the end of the trial vindicated me as far as I was concerned with the judge. [The judge] made an open apology of what happened [earlier in the case]…. And believe you me, I see her today I hug her. She saved my life because that really picked me up out of the dumps. It really did. It gave me motivation and courage. Other plaintiffs derived a sense of exoneration during the depositions, when they told their version of the story, unencumbered, in front of their former employer. Thus, these plaintiffs perceive some measure of fairness when they tell their story before a legal authority and feel heard and vindicated. Plaintiffs approach discrimination law initially with the hope that it can vindicate their complaints about negative workplace experiences. They often have high expectations yet confront a litigation process that fails to serve them or is opaque and confusing. Plaintiffs adjust their expectations to their experiences. Along the way, their sense of fairness changes—usually diminishing dramatically—as their understanding of what is possible settles in.

1b)

The Defendant Trajectory - From Avoiding Law to a Quick Legal Resolution: “I’ve never seen overt discrimination. I think it is something that does still happen, but I think it’s pretty unusual.”

In contrast to plaintiffs, defendants undergo a more subtle change in their orientation towards

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law and law’s fairness in the course of a legal case. Defendants are seasoned, repeat players in discrimination litigation, and as such are able to rely on their general familiarity with the overall litigation process. They tend to have a rich history of experience and substantial organizational resources and routines to draw upon. Therefore, they do not go through the same process of high expectations to disillusionment that plaintiffs often experience. Defendants tend to follow an overarching strategy of minimizing their involvement with litigation, yet they make tactical adjustments and their assessments of fairness reflect their tactical goals. Unlike plaintiffs, these HR professionals and attorneys adopt a professional view of the legal process. They focus on the impacts of litigation on the organization as an entity, not on their personal desire of justice of the truth of the matter to be publically adjudicated. Their psychological well-being is buffered by this focus and by the employing organization’s typically studied approach to litigation. By enacting a relatively routine script, they are institutionally buffered from becoming too invested in winning or losing any particular case. This is central to their general strategy for managing workplace disputes and litigation. However, defendants do begin with the ideal that workplace disputes are best handled inhouse. Defendants, unlike plaintiffs, view the workplace itself as a better arbiter of a resolution than the courts. 10 As Don Gale, the 47-year old white in-house counsel for Research Corporation, told us, “The management’s position is if the misconduct or the bad performance is established, whatever disciplinary action is appropriate will be taken.” Defendants see little reason for the legal system to step in. They worry that once the legal system does get involved, it can make matters worse. In direct contrast to plaintiffs, employer-defendants see discrimination litigation as an                                                              10

The plaintiffs in our sample, by virtue of having filed a lawsuit, did not believe that in-house dispute resolution was the best way to solve the problem. 

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externally-imposed, inefficient, and costly bureaucratic mechanism for resolving a conflict that occurred within the employing organization. When defendants enter into a lawsuit, they do so on the defensive. They are reacting to accusations that an employee acted improperly and that management did not handle the situation sufficiently. Defendants feel that litigation is unfair not so much because it does a poor job of vindicating their side of the story (in fact, defendants made it clear that they would rather not have to air their side of the story in public in the first place), but rather because it can lead to arbitrary and sometimes expensive decisions that curtail the expeditious resolution of a workplace dispute. Therefore, the underlying principle expressed by many of the defendants we interviewed was that the more quickly the workplace situation or problem is resolved, outside the formal litigation process, the more fair the outcome. In line with organizational research on disputes (e.g., Edelman, Erlanger and Lande 1993), we find that defendants strategically rely on human resource procedures that signal their compliance and discourage employees from filing cases with the EEOC in the first place. When assessing the prevalence of discrimination in their workplaces, defendants started from the assumption that it is rare and that their workplace is a fair one, especially given their organization’s efforts at compliance with equal employment law and pro-active problem-solving on the managerial front. David Lever, a 57-year old white in-house counsel for Transportation Company, illustrates how defendants minimized the minimized the extent of discrimination in their workplaces: I’ve never seen overt discrimination. I think it is something that does still happen, but I think it’s pretty unusual, pretty rare. I’ve questioned managers at times and…pushed them, “…Are you sure [that discrimination did not occur]? In your own mind, that if you look back…everything else being the same?” I think that

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98, 99 percent of the time, [discrimination did not occur]. As this excerpt demonstrates, defendants often downplayed the very possibility that discrimination occurred within their organization. Furthermore, they told us that in those rare instances when discrimination may happen (as noted by 11 defendants), their managers handle it internally and thoroughly. They emphasized that such internal resolutions are the most effective approach to any problem. In order to keep dispute resolution in-house, defendants’ strategize to avoid lawsuits by properly shielding their employers from liability and expense as well as by emphasizing internal dispute resolution to employees and plaintiff lawyers. Daniel Jain, an African-American EEO officer for a city government, explained his strategy for reducing the number of complaints and lawsuits and the associated costs as follows: I want the managers to understand what their responsibilities are, and [that is] one way we bring that cost down. Because I hope when I go begging for money [from my supervisors], I say “I’m saving you money. I’m asking you for money to save money.” So you know it’s an investment on the front end as opposed to doing something on the back end, and most people can see that. Mr. Jain and other defendants consider organizational practices to avoid litigation part of the normal expenses of running an organization. So too is defending the business or agency when a suit is brought against it. Once a claim has been filed, defendants respond to litigation strategically. An example of this strategic can be seen in Krista Hewick’s, a 54-year old white in-house counsel and human resource officer for a product manufacturer, description of employer’s techniques for preventing workplace problems from turning into litigation:

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In nearly 100% of the cases [in which an employer is accused of discrimination], the employee who has got this problem has no idea that I’m involved at all. Because when you add layers to a mix, it’s like putting gas on the flame. So what we do is I will talk to the HR person and I’ll say, okay tell me what happened. What’s happening?…What do you need to accomplish here to make a resolution that everybody can work with? And here are the rules. Yes, you do have to accommodate this and this is how you accommodate it and this is what the, I always talk about it in terms of the boundaries of the playing field. My job is to establish…the boundaries of the playing field. Now your job as the HR person is to figure out where you want to start the play…where you want to put the ball. From the very beginning of a dispute, defendants seek to establish the legal parameters of the case, identify the extent of the harm done, and explore the options available to them to counter the suit. Furthermore, as Krista Hewick points out, defendants are often savvy and purposeful, in this case both by concealing from the plaintiffs the “layers” of agents involved in managing the case and by defining the legal boundaries of the dispute. Other tactics include awarding nuisance settlements and outsourcing the work of litigation if the case becomes too burdensome to handle in-house. Thus, defendants experience law as unfair because it moves disputes that, presumably, should be handled in-house into the public domain. From defendants’ perspectives, the litigation process is most fair when they are able to resolve cases quickly, in-house, and at minimal cost to their organization. But whether their immediate goal is to avoid any involvement with litigation or to influence litigation in their favor, defendants still strategically treat discrimination lawsuits as a routine cost of business, working to minimize the costs that such lawsuits impose on the

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organization. There is also another, relatively short-lived way in which defendants’ sense of fairness can change over time, although this tends to occur when the employing organization or a particular leader in the organization encounters a workplace discrimination lawsuit for the first time. According to the outside counsel we interviewed, when some employers confront their first discrimination suit, they initially respond by insisting that the organization should fight back in court because the charges are unjust. Yet, as soon as these employers find the case impinging on their ability to run their business, they quickly shift their orientation towards resolving the case in a way that minimizes both costs and interference with their organizational mission.

2)

The Ability to Control and Manage a Lawsuit

Our analysis of situated justice and employment discrimination cases points to a second factor that influences both plaintiffs’ and defendants’ views of legal fairness: their ability to control a lawsuit. Again, the parties have different experiences of trying to manage a lawsuit, and their respective views of fairness are predicated on such experiences.

2a)

Plaintiffs’ Sense that Litigation is beyond their Control: “It’s unbelievable what they do to you…this stuff was allowed to come out that was so ludicrously untrue.”

Plaintiffs frequently told us that upon entering litigation they were overwhelmed by legal obstacles and lacked the personal, organizational, and institutional resources necessary to feel in control of their case. To successfully pursue their grievance, they realize they will need sound legal representation, some familiarity with legal authorities, and personal knowledge of the

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litigation process. 11 For most, this is all new terrain. This sense of feeling overwhelmed and under-resourced compounds the negative experience they have already had in the workplace, in which many reported that their lack of organizational authority, power, and support—from a union, for example—prevented them from successfully negotiating with management. At nearly every stage, then, plaintiffs complain of being ill-equipped to manage their predicament. Often the first obstacle in the legal system that plaintiffs encounter is the challenge of finding a good, affordable lawyer. They expect that lawyers will act as advocates and partners in their legal case, but they grow disappointed when a number of situational contingencies arise. For example, not all plaintiffs who seek a lawyer are able to obtain one. The plaintiff attorneys we interviewed reported that, on average, they took only one of every ten clients that approached them although the attorneys’ assessment was that many of them were victims of discrimination. Likewise, most of the pro se plaintiffs found that, when looking for a lawyer, no one would represent them or that lawyers charged prices that they could not pay. Those plaintiffs who do secure a lawyer often complained that their attorney proved incapable of representing them competently. Twenty-seven of the 41 plaintiffs interviewed found plaintiff lawyers to be problematic in some respect. Even those plaintiffs who do secure a lawyer often complained that their attorney proved incapable of representing them competently. Floyd Kelly, a 57-year old African-American market analyst, recounted what he told his attorney when he pulled him aside during settlement negotiations that Mr. Kelly felt the attorney was handling without his consultation: I said, ‘If you’re my attorney and you’re working for me and with me supposedly. The reason I hired you in the first place is because I don’t know legal things. I                                                              11

Financial resources, although closely connected to each of these, are so important to their cases that we discuss these separately in the following empirical section of the paper. 

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expect for you to tell me the legal things and true legal things because you and I are supposed to be partners. Even though you work for me, we’re still partners.’"

Thirty of the 41 plaintiffs we interviewed found their lawyers to be problematic in some respect. Mr. Kelly is among the 11 plaintiffs who described their lawyer as corrupt. Eleven plaintiffs recounted serious mistakes their lawyers had made and other ways they found their lawyers to be incompetent. There were some exceptions to these views. Thirteen plaintiffs described their attorneys as either possessing integrity or as being skilled. Yet even five of these 13 mentioned also ways in which their lawyers disappointed them by giving bad advice, making mistakes, or colluding with the defense. Thus, for most plaintiffs interviewed, plaintiff lawyers fall short of their expectations. Several plaintiffs even came to believe that their own lawyer was an obstacle to their desire for vindication. Plaintiffs discover obstacles in the very places they expected to find support—from lawyers, the EEOC, the local department of human rights, judges and juries. This makes them more disillusioned and frustrated with the litigation process. Their initial experience with legal authority typically begins with an EEOC or local department of human rights office, where claimants file their initial complaints. In the vast majority of cases, the agency issues a Right-toSue letter without investigating the workplace or representing the plaintiff legally. Marjorie Turner, 46-year old African-American secretary, is indicative of the frustration felt by many plaintiffs about their experiences at the EEOC or a local human rights office: I mean I really did go [to the Department of Human Rights] naively thinking that they were going to do what I thought was their mission, and that was to protect the rights, your civil rights. And what I found is that consistently they don’t do

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that….In fact, I just wrote a letter to ACLU [American Civil Liberties Union] about the Department of Human Rights. And the fact that they don’t accept evidence that the victim wants to present to them. … They don’t give you advice as far as what you’re supposed to submit when. They don’t return calls. I had an investigator who was really rude to me on the phone [and] did not interview me at all before having the fact-finding conference. Plaintiffs like Marjorie Turner approached these offices expecting to find a supportive plaintiff advocacy group.

Instead they found that their complaints are processed in a bureaucratic

fashion. She is among those nine plaintiffs interviewed who expected the EEOC or local agency to deliver far more it did; an additional ten plaintiffs reported disappoint with the agency. Such sentiments contributed to the general sense among most plaintiffs that the legal system, as a whole, is unfairly biased against them. Plaintiffs frequently find themselves disappointed by judges and juries as well, telling us that these authorities make decisions based on incomplete information, false information, and biased value judgments, rather than a strict adherence to the facts of the case. Pro se plaintiffs feel especially disempowered in their encounters with legal authorities. Joanne McFrankel, a 59year old white woman who directed membership for a major hotel chain, told us she had no idea how to respond after her manager failed to show up for two different settlement meetings and the judge failed to penalize him. However, this incident confirmed in her mind that the judge was on the side of the defendant and that the legal system was not set up to be fair or impartial. Many plaintiffs—particularly pro se plaintiffs—find themselves thoroughly confused by legal codes and procedures, which exacerbates their sense that the legal process is beyond their control. Some of these plaintiffs could not make sense of the legal system while they were

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pursuing their case and, years after their case closed, may still be baffled by it. To our surprise, one plaintiff—prior to our interview—did not even understand that he had filed a lawsuit. Another had forgotten that he had filed in federal court. Plaintiffs frequently misunderstood written documents they received (e.g. thinking the case was over when, in fact, the EEOC was informing the plaintiff it would not further investigate the case). A common misperception among plaintiffs was that the EEOC or the state department of human rights can make binding legal decisions. For a number of the plaintiffs we interviewed, litigation seems like a legal maze full of technical complications and legalese. When plaintiffs do not understand litigation, they can develop explanations and conclusions that are not clearly grounded in fact. For example, Jimmy Williams, quoted above, and his wife, together concluded that a white judge ruled against Williams out of anger about the verdict in O.J. Simpson’s 1995 criminal trial, which had been announced during Williams’ trial. This perception of law as an obstacle is corroborated by a great deal of research showing that litigation largely favors affluent defendants and corporate litigants, who tend to be repeat players (Galanter 1974; Grossman, Kritzer and Macaulay 1999; Kritzer and Silbey 2003). Faced with legal obstacles and without sufficient organizational or institutional resources, plaintiffs like Jimmy Williams find themselves overwhelmed by the litigation process. Still, they remain confident that they were treated in a discriminatory manner in their workplace. This contributes to their sentiment that the law is unfair Plaintiffs also reported that they had far fewer resources to pursue their case relative to their employers. They believed that defendants and their counsel actively game the system, lie, and maliciously mislead judges and juries without being held accountable. They cite examples in which the defendant and the defendant lawyers lie and get away with it, pointing to these

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examples as a way that the legal system is not set up in their favor. For example, consider what Lois Smith, a 36-year old white foreman of engineers, told us about her trial: I had six or seven straight days of depositions. It was horrible…They kept trying to turn it around to me, me, me….I mean I’ve never had so many disparaging things said about an individual. You know what I mean? It’s unbelievable what they do to you…this stuff was allowed to come out that was so ludicrously untrue. These experiences contribute to plaintiffs’ growing sense that the litigation process is merely a contest to manipulate instead of a mechanism for vindication. Lois Smith, the foreman, went on to tell us, “Honestly there is no such thing as a fair lawsuit. I mean, it’s who plays a better game.” Smith and a number of other plaintiffs believe that the entire system is hijacked and everyone is concerned with maximizing their own interests. While not all plaintiffs have such extreme views, the majority of plaintiffs interviewed felt betrayed by either plaintiff lawyers or legal authorities who did not act fairly or who failed to penalize employers and their legal counsel for acting deceitfully. Without the experience or institutional resources to make sense of these legal actors or to manipulate law in their favor, most plaintiffs conclude that law is, by and large, unfair.

2b)

Defendants’ Construction of Meritless Cases and Problem Employees: “The system isn’t fair. . . . the employee has no skin at the gate.”

Defendants, in contrast to plaintiffs, did not report feeling overwhelmed by the legal system. They did, however, feel that they lacked control of particular aspects of it, most importantly, over plaintiffs’ ability to file and pursue lawsuits, even when their case lacks legal merit.

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Defendants consider the shear ease with which plaintiffs can enter the legal system and pursue a lawsuit to be the most unfair and out of control aspect of litigation. Almost every defendant that we interviewed (19) complained of “meritless cases” and “problem employees.” This pervasive rhetoric was invoked not only in discussions of the plaintiffs themselves, but also in reference to plaintiff attorneys, judges and juries who seem all to happy to aid such plaintiffs. Defendants perceive the vast majority of cases that end up in court to be “meritless.” Don Gale, a 47-year old white in-house counsel for Research Organization, said, Most cases, I don’t say they’re totally frivolous. I mean, I’d say a third of them are. But on the other hand, I really don’t believe any of our cases [were cases] where the other side had sufficient merit. I can understand how they felt the way they did, but we had a very strong case and in the balance that what we did was correct from a personnel standpoint. [italics added for emphasis] Defendants believe that there are not enough institutional barriers to prevent plaintiffs from filing lawsuits, especially lawsuits that lack legitimate legal claims. They feel that practically anyone can drag them into court, hold up business, and shake them down (see also Abel 1998). Defendant Marilyn Cole, a 55-year old white in-house counsel and corporate officer for a finance corporation, told us: You know here’s what I hear from our managers, who’ve been involved in these situations, is that they complain to me that the system isn’t fair. That we have to hire these attorneys and we have to pay this money and we have to, you know, go through this process and the employee has no skin at the gate. And if, you know, if they lose, then it doesn’t seem fair that they shouldn’t have to pay. Cole expresses the view that employing organizations cede control to an unfair legal system

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when they spend precious time and money defending cases that lack legal substance. As Cole and other defendants compare their organizations’ experiences to those of plaintiffs, they conclude that litigation is unfair because they believe their organizations are being bogged down by such meritless claims that plaintiffs face no penalties for bringing. According to defendants, meritless discrimination cases are usually pursued by problem employees with little legal knowledge. A majority of defendant interviewees (16) depicted plaintiffs as workers who do not recognize their own inadequate performance or have difficult or obstinate personalities. They often described plaintiffs as misunderstanding the difference between illegal behavior, misbehavior, and business decisions they dislike. Nicole Price, a 47year old white general counsel for Health Care Non-Profit, describes these problematic workers: Often times it’s somebody may have made a remark to somebody that that person took offense to, and the question is whether or not there was a hostile work environment or any sort of discrimination. And those, we have tended to be very successful on because a lot of people don’t understand. They take it to extremes, you know. They hear one remark and … get very upset or they feel like they can’t tell their supervisor, so they’ll actually file a complaint, but those typically aren’t going to be found to be discriminatory. We may need to do some work with that area and figure out what’s going on, but they aren’t discrimination. … Yelling at an employee is not discrimination, but, you know, some people believe that it should be. From most defendants’ perspective, the plaintiffs are to blame for their own failure to understand the parameters of discrimination law. Price and other defendants surmise that the law unfairly provides access and power to incompetent workers who have meritless cases and lack legal

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knowledge. Such statements are similar to the popular rhetoric on frivolous lawsuits promoted by tort reform lobbyists and the mass media (Haltom and McCann 2004b), in that they tend to lay blame on plaintiffs’ personalities. Both suggest discrimination suits are motivated, in part, by the greed, malice, and opportunism of plaintiffs and their attorneys.

Our defendant interviewees

occasionally accused plaintiffs and, especially, the attorneys who encourage such meritless cases, of lying by making claims of discrimination (and behaving in other ways) that are misguided or downright deceptive and malicious. Yet defendants’ notion of meritless cases poses a slightly different construction of plaintiffs than does the notion of frivolous lawsuits, which largely assumes that plaintiffs know full well what they are doing. When cases are accused of being frivolous, the plaintiff is constructed as a “problem employee” in the sense of being opportunistic, but not necessarily incompetent. The defendants we interviewed tended to portray plaintiffs as problem employees in a slightly different way. That is, they may be poor performers in the workplace who have an overinflated self-image. Perhaps they have “challenging” or recalcitrant personalities, such as the employee who one defendant described as “just a pain in the butt and doesn’t like to come to work… and he’s able to hide behind the disability.” Or perhaps they feel entitled when they should not, or they have been manipulated by their lawyer. They may even be emotionally unsound or even mentally ill, so they cannot see the situation clearly or rationally. In all these cases, the plaintiff is construed as the impediment, not the manager, coworker, or the workplace conditions cited in the lawsuit. Overlaid on top of these problems, according to defendants, is plaintiffs’ basic ignorance of law. One defendant had a jar on his that succinctly captured the sentiment, held by many defendants we interviewed, that problem employees should be

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eradicated from the organization altogether. Designed to look like an urn, the jar was engraved: “Ashes of Problem Employees.” According to defendants, the inadequate performance of these so-called problem employees complicates their claims of discrimination and exacerbates their other problems in the workplace. The legal system is out of control, and deeply unfair, when it allows such unreasonable employees to hijack it. Sara Ramsden, a 42-year old white in-house counsel for Energy Corporation, described an ADA case filed by employee who had a medical condition that caused him to periodically pass out. This employee worked in an area where, according to the employer, his inability to perform his duties could cause serious safety concerns: One of the things was that he didn’t believe he had a condition at all, and we believed he had some condition that was causing him to pass out. But his theory all along was one of perceived disability rather than actual disability, and when you can’t even agree as to whether there’s a medical condition, it becomes very hard to agree on what an accommodation looks like. As these defendants see it, the individuals who file lawsuits have already taken steps to lash back and blame the employer. This makes them especially problematic. Defendants also noted that the poor performance and behavior of these individuals can create additional opportunities for the employer to fail to be compliant—say, when the employee is reprimanded—so the employer faces an increased risk of retaliation claims. Further reinforcing their belief that the legal system is out of control, defendants frequently discussed plaintiff attorneys as encouraging meritless cases. More than half of the defendants interviewed (13) described these attorneys as causing problems, citing such issues as incompetence and an unreasonable focus on making money. A few defendants even cited these

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attributes as unfair to plaintiffs because their attorneys were exploiting them. At the same time, half of the defendants raised the point that they would rather not try a case opposite a pro se plaintiff, as these plaintiffs tend to be confused about law, which leads to procedural problems and delays, and judges tend to be overly lenient with these plaintiffs. Defendants also viewed legal authorities (i.e. the EEOC, judges, and juries) as inadequate and capricious, particularly because they, too, make the litigation process too open to plaintiffs. For example, nearly half of the defendants interviewed noted that the EEOC is especially complicit in this and is biased toward plaintiffs. Even though many reported having achieved positive results from the agency, they believed that it is all-too-quick to issue Right-to-Sue letters to plaintiffs without researching the case. Troy Pedlow, a white 53-year old general counsel for a mid-sized product manufacturer, voiced a commonly held perception of the EEOC: “I think it’s a bureaucracy, and from my perspective the EEOC is very, very complainant-oriented.” Another defendant, Nicole Price, a 47-year old white general counsel for Health Care Non-Profit, told us, “I find the EEOC very slow and, for the most part, unimaginative, uncreative, you know, and overworked. And as a result of them being overworked, they won’t get to resolution.” Defendants also found some their experiences with judges and, especially, juries to be unfair and arbitrary. They observed that the assignment of the case to a district, judge, or jury is highly consequential yet utterly arbitrary and unfair. They complained that the quality of the judge is far too random: some judges encourage a good resolution while others exacerbate the dispute. As a result, the quality of the settlement reached can be arbitrary too. Eight defendants cited problems with juries, particularly jurists’ view that corporations and city governments represent little more than deep-pockets. In sum, defendants emphasized that the legal system is unfair the more it is beholden

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problem employees who pursue cases that lack legal merit. They perceive the process of discrimination litigation as unfair precisely because too much control is ceded to plaintiffs—by legal rules that allow plaintiffs to file, by plaintiff attorneys who have a direct interest in encouraging lawsuits, and by arbitrary and biased judges and juries. For these in-house attorneys and HR professionals, litigation is unfair because the system of justice is too accessible to plaintiffs who lack real cases.

3) Parties’ Perceptions of High Costs The third major factor around which both plaintiffs and defendants evaluated fairness in discrimination law involved the array of legal costs associated with pursuing or defending against a lawsuit. Plaintiffs, who see the lawsuit as an extremely personalized experience, voiced concern with the financial and personal costs to them as individuals. Meanwhile, defendants, who are personally shielded by their organizational position and routines, refer to the financial and reputational costs to the organization as a whole. While the unfairness of the high costs of litigation is a more salient issue for plaintiffs, costs matter for both parties and influence their respective views of fairness and the law.

3a)

Plaintiffs High Financial and Personal Costs: “If you don’t have an extra $100,000, $200,000 to throw away, you don’t belong in the legal system.”

For plaintiffs, the monetary costs of a lawsuit are personal and highly consequential. Plaintiffs typically do not understand the costs associated with a lawsuit going into one, and many were

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shocked to discover just how expensive pursuing their case ended up becoming. This is compounded by the fact that the plaintiff has typically been terminated from her or his job. If they cannot pay their attorney and court fees, they might mortgage their house or seek out a second or even third job (both of which can take time away from the pursuance of their case). Filing an employment civil rights lawsuit can put a plaintiff’s personal wealth in serious jeopardy. Plaintiffs’ financial burdens come primarily from attorney’s fees, precisely when their job situation may be at its most precarious. 12 Those with disabilities or health problems face additional costs as well. During one interview, a plaintiff with a disability laughed nervously as he described the attorney’s fees, on top of his health expenses, as “this giant rock rolling down the hill.” This plaintiff not only experienced the procedural hurdles of litigations as overwhelming, but the material costs of the lawsuit made him feel powerless. Numerous plaintiffs viewed these costs as profoundly unfair, in the sense that they create obstacles to their pursuit of justice that has nothing to do with what actually occurred to them within the workplace. Peter Nicholson, 56-year old white police lieutenant, explains this sentiment in the following way: So if you want to know how I feel about the legal system right now, it has nothing to do with a regular guy like me. It has nothing to do with me. I have no business being there….if you don’t have an extra $100,000, $200,000 to throw away, you don’t belong in the legal system. That’s the way I feel now. Peter Nicholson summed up a common theme – the legal system only serves those who                                                              12

According to both the plaintiffs and plaintiff attorneys we interviewed, these fees are usually structured in one of two ways. Either the plaintiff and his or her lawyer enter into contingency fee arrangements in which the plaintiff pays about 30% of any settlement or lawsuit award, or they enter into arrangements where the plaintiff pays the attorney by the hour. A few plaintiff attorneys reported moving toward a model in which they start with a retainer (of about $10,000) and then shift to contingency to ensure that the plaintiff is serious about pursuing a case.  

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are able to pay for it. This pecuniary bias seemed to most plaintiffs an utter perversion of what the law should be set up to do, which is to fairly determine the facts of a case and offer reasonable redress. Put differently, plaintiffs experienced monetary costs as profoundly unfair precisely because an abstract system par excellence, money, had the effect of transforming their situated experience from a particular case to an intangible calculation (Giddens 1990). It is as if the legal system implicitly asked the rather disturbing question of each plaintiff: “How much are you willing to pay for the chance at vindication?” The very fact that they were faced with such a question seemed, to most of our plaintiffs, profoundly unfair. Plaintiffs’ experiences of fairness were also shaped by the non-monetary costs of pursuing a legal case. Plaintiffs repeatedly told us stories of depression, addiction, bankruptcy, and divorce. Twenty-one of the plaintiffs we interviewed said their lawsuits caused severe personal or family breakdown and a toll on their physical and mental health. For many plaintiffs, these non-monetary costs began prior to the lawsuit, with the indignity, shame, and helplessness of losing their jobs. The emotional pain of being mistreated by an employer often provided the initial motivation to sue. However, the procedural and financial hurdles involved with pursuing their case created new personal costs. Many plaintiffs spoke openly to us about how they cycled through bouts of depression. Several told us about their need for psychiatric treatment during and after their lawsuits. Frank Williams, an African-American mechanic, was badly injured on the job and terminated ostensibly for poor performance, although he claimed disability. His injury prevented him from working ever again, so he became a stay-at-home parent while his wife earned the living for the family. He described this experience, years later, as “still somewhat traumatic…. Believe me, sometimes I still get into a depressed state.” Mr. Williams talked about how his case cost him

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emotionally and financially, but both he and his wife—who sat with us through the entire 2.5 hour interview—agreed that the lawsuit strengthened their partnership. Other plaintiffs, like Gerry Handley, were not as fortunate in terms of the cost of the lawsuit on their personal relationships: [The company] didn’t give me hardly nothing. I lost my wife and my family and my home. You know, I had a million dollar home at that time. . . My wife left me and everything because I became unbearable to be around and I lost my kids. They gave me like $50,000. Now, I lost in that deal. Handley’s wife even sued him and received half his settlement. Although his losses were extreme, the personal stress that he experienced because of the lawsuit—the tension among family members, the economic uncertainty, the transformation of his personality—were commonplace. Plaintiffs commonly cried as they told us about affairs, hospitalizations, and attempted suicides. Some plaintiffs even attributed problems with their physical health to the stress of their lawsuit. 13 Most plaintiffs did not describe these personal and relationship costs as being unfair, per se, but they did see them as a consequence of an unfair legal system that places undue burdens on people simply seeking a fair resolution to a workplace dispute. When we asked Evan Oliver, a 44-year old white male environmental scientist, if he felt that the adjusted back pay and front pay awarded to him by the court was fair, he said, “I don’t think it was perfectly fair, but….it’s about as fair as I could get under the circumstances. I was so beaten out and everything like that that I didn’t appeal it.” Thus, these extenuating circumstances—shaped, in part, by the personal toll the lawsuit takes on the persons ego, social relationships, and even physical body—contribute to                                                              13

While we cannot definitely assess whether these individuals would have divorced, become depressed, or had physical ailments in the absence of the lawsuit, there is ample scholarly evidence that pursuing a lawsuit can cause financial, mental and physical health problems (e.g., Blanchard et al. 1998). 

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many plaintiff’s sense of disillusionment with law and their overall assessments of the law’s fairness.

3b)

Defendants - Unfair but Strategic Nuisance Settlements: “We’re here to make a profit… the cheaper you can get rid of a case, the better.”

Unlike plaintiffs, defendants care primarily about the costs associated with a lawsuit from a professional perspective. That is, their jobs depend on minimizing financial and symbolic costs to the organization. Defendants also worry about the indirect costs to their businesses of this kind of litigation (e.g. reduced productivity; the costs of implementing new policies that demonstrate legal compliance, decreased worker morale, etc.). However, defendants did not express a fundamental problem with the fact that, at the end of the day, these costs could all be reduced to a financial calculation. Some costs may be harder to measure, but they all represent business expenses. Since they work in offices considered “cost centers,” rather than “profit centers,” inhouse counsel and human resources professional are acutely aware of minimizing costs. They factor the litigation costs of particular cases into their calculus of how they, as individuals, are viewed as contributors to the organization. This was even true of government employees. But the imperative for minimizing costs is not accompanied by nearly the same level of personal risk for defendants as in the case of plaintiffs. The monetary and reputational costs of a lawsuit are socialized across the organizational hierarchy, such that in-house attorneys and HR managers are organizationally buffered from personal and financial risk as long as they competently perform their duties. 14                                                              14

One is likely to find a skewed distribution of organizational costs to the defendant employer in the case of a public scandal wrought by a major discrimination lawsuit. That is, the symbolic and reputational costs (e.g. blame for failed

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Defendants generally display a dual strategy for avoiding lawsuits. First, they try to send out signals to employees and to local plaintiffs’ lawyers to avoid litigation. Second, they try to minimize the costs of litigation once they are aware that a lawsuit has or will soon be filed. Troy Pedlow, the general counsel of a product manufacturing company, articulates the cost-benefit analysis that all defendants share. When asked about when he determines to settle a case, he told us: We’re here to make a profit…The sooner you can get rid of a case, the better. Obviously, the cheaper you can get rid of a case, the better…Some cases you’ll settle out early…I mean this isn’t rocket science [emphasis added]. Different defendants rely on different particular strategies for controlling costs. Together with their outside counsel if they use them, most defendants continuously engaged in an economic appraisal of the short-term benefits of inexpensive, early settlements versus the long-term costs of fighting plaintiffs’ claims before a judge and/or jury. Defendants focus on results that minimize damage to the organization, not necessarily the idealistic goal of winning. Almost half of the defendants we interviewed (9) mentioned that once a dispute enters the legal system, they often negotiated a small settlement at an early stage just to terminate the case. David Lefebre, the 57-year old white in-house counsel for Transportation Company, explained, “[T]he majority of our cases will either settle early for nuisance value or lower values where we can at least make the business case that it’s going to cost us less to enter into the settlement than it would be to proceed.” When pressed about what he meant by nuisance value, Lefebre said, “maybe $1,000.00 or $1,500.00 or something.” Some defendants noted that such nuisance settlements were unfair on their merits but nevertheless effective at expediting the                                                                                                                                                                                                  policies or discriminatory practices) will tend to be skewed toward the upper tier of an organizational hierarchy, whereas the economic cost offsets (in the form of lowered wages, furloughs, layoffs, and the like) are likely to be shifted to the middle and lower tiers of an organizational hierarchy.  

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case. As this example illustrates, defendants commonly change their frame of reference when evaluating fairness. They may define nuisance settlements as unfair precisely because they should not have to pay anything to an employee whose case lacks legal merit. Yet, faced with the prospect of prolonged litigation, they may consider nuisance settlements the fairest outcome they can achieve. Defendants’ evaluation of fairness subtly transforms based on the situation they face, rather than being determined solely from first principles or a universalistic calculation, and is informed by their experienced, birds-eye view on litigation. An early, inexpensive settlement or a favorable decision on summary judgment is the preferred outcome for defendants once litigation has begun. The larger study of which this research is a part demonstrates employers’ widespread reliance on early settlements, as approximately 50% of all cases end at this stage (Nielsen et al. 2008). Defendants’ use of “nuisance settlements” also can be attributed to the fact that most plaintiffs file employment discrimination cases after their termination (ibid). Don Gale, a 47-year old white in-house counsel for Research Corporation, sees cases filed by terminated employees as “highway robbery.” He explains, “if somebody is terminated, it’s a little harder [to avoid a lawsuit] because they have nothing to lose.” Occasionally, an in-house attorney or HR executive elects to fight a case through court. For example, shortly after remarking that his company is in business to make profits, Troy Pedlow explained in the next breath that, strategically, his company does not want to be held hostage by meritless claims: Certain cases that are absolutely meritless, even though it’s not the right costbenefit analysis, you’ll fight. Whatever it takes you’ll fight because sometimes you just need to send the message. Rick [a plaintiff] was one of those. . . He was

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holding us up. Even here, Mr. Pedlow is not suggesting that cases be fought through the courts on principles but rather is describing a strategy in which the employer decides to “send the message” that the organization will not just hand out easy money to plaintiffs and their attorneys. Overall, the inhouse attorneys and HR professionals we interviewed consider the financial and reputational costs of a lawsuit to be unfair, although compared to plaintiffs, defendants experienced the unfairness of these costs as easier to manage, with fewer consequences for their personal lives or emotional well-being.

V. CONCLUSION The fairness of the law and the legal process is not something that people consider merely as an abstract or philosophical principle. Especially among those who have actually been through a lawsuit, their lived experience profoundly informs their assessments of what is fair and unfair in the legal system. As our study of litigants involved in employment discrimination cases reveals, assessments of fairness are dynamically situated, assessed, and reassessed from a variety of personal, organizational, and institutional vantage points. Our analysis highlights three specific situational factors that provide key anchor points for how plaintiffs’ and defendants’ perceive fairness—changes in one’s orientation towards the ability of the law to resolve workplace disputes over time; control over a lawsuit; and the costs of litigation. We argue that these factors can and should be incorporated into future analysis of people’s perceptions of fairness. By analyzing these factors, we see how plaintiffs, who typically lack legal experience, first turn to law to vindicate a personal affront at work but, as they encounter various challenges in the litigation, usually end up disillusioned with the law’s fairness. Defendants, who have the

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advantages of repeated experiences and more organizational resources, view the legal system as unfair because it provides too much access to problem employees and their meritless cases. These findings are not easily explained in terms of either procedural or substantive justice. In reviewing actual legal cases, litigants consider the process and the outcome of litigation, often simultaneously, when they make their assessments about law’s fairness. When plaintiffs complained to us that they felt the justice system was unfair because they faced legal obstacles that prevented them from telling their story of what happened in the workplace, this sentiment cannot be neatly cleaved into its “procedural” and “substantive” parts. Rather, the frustration with the process that plaintiffs experienced was part and parcel with the substantive resolution of the case. In this way, the concept of “situated justice” calls attention to the ways in which procedural and substantive justice are intricately intertwined in the everyday experience of actual litigants. Likewise, for litigants, the meaning of a substantive win or loss—and whether they even think about their case in terms of a win or loss—depends on their situated experience. The perception of both the legal process and its outcome is situated within litigant’s personal experience and social location. Our findings raise a number of additional points that are either under examined or largely unaccounted for in previous research. First, plaintiffs’ often have fundamental misunderstandings of how the law works, and these misunderstandings can strongly influence whether they think the legal system works as it should. Similarly, plaintiffs commonly file legal complaints with unrealistic goals and sometimes do not adjust those goals throughout the legal process. One hypothesis that could tested in future research is whether the ability to adjust goals predicts a lack of satisfaction in the legal process. In other words, future studies could test whether litigant’s relative ability to set, for employment discrimination litigation, realistic goals and then

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adjust these goals in accordance to contingencies correlates with greater levels of satisfaction and the perception of legal fairness. Second, our focus on situated justice reveals the importance of relative comparisons, in the sense that each party makes assessments about fairness based on what they think the other side is trying to gain from the legal system. Litigants’ perceptions of the experience of litigation, in general, and of fairness in particular depend on their perceptions of the opposing party. For example, one reason that litigation seems so unfair to employers is that they believe employees who lack legitimate claims can still sue and “cause trouble.” In contrast, plaintiffs feel that litigation is unfair when employers are able to game the system in a way that their grievance is never fully aired in court. These findings lend support to a “relational model” of conflict resolution (Tyler 1989; Tyler and Lind 1992), which posits that people’s assessments of a “resolution” are crucially shaped by their evaluation of the competence, interests, and power of the other salient actors involved in a dispute. Finally, we show the importance of people’s emotional experience of law for their assessments of legal fairness. Our analysis of litigant’s actual understandings of fairness in real life cases shows how the often-emotional experience of a lawsuit, particularly for plaintiffs, directly affects their subsequent evaluations of the fairness of litigation process and case outcome. Of particular importance is people’s sense of control over the case, as well as their actual ability to control circumstances surrounding the case. Our findings provide several insights into the adequacy of the employment discrimination litigation system for plaintiffs, for defendants, and for employment law more generally. For plaintiffs, the overall portrait that emerges is of a frustrating system of barriers that cannot be navigated without good legal counsel, which can be hard to find, afford, and retain. Plaintiffs

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often do not get what they wanted, either through the litigation process or through a clear case outcome. Despite these problems, the employment discrimination litigation system is certainly better than no protection for discrimination. Furthermore, the political possibilities for a more stringent system of worker protection are not promising. Our findings demonstrate that collective representation, improved assistance at the agency level, and more opportunities for legal representation would all play a key role in improving the system from the perspective of plaintiffs. For defendants, these data reveal a system which, from their perspective, holds them hostage to incompetent, misinformed, and possibly malicious employees. Yet here we see a point of common recourse between plaintiffs and defendants. Both sides complain that plaintiffs often come to a legal dispute lacking proper knowledge. Both sides agree that the legal process works better when plaintiffs have adequate legal counsel. We should expect, then, that employers would promote measures aimed at improving the literacy of employees around discrimination law and other workplace grievances, as well as contribute to plaintiffs’ ability to retain and pay for good legal counsel. To the extent that employers do not support such measures, we suspect that a slightly different agenda is at play. For example, although litigation may make defendants feel powerless, it is a system that they are able, by and large, to manage far more efficiently than are plaintiffs. The process is bureaucratized and made routine. It is not generally experienced as a personal fight for self-worth. Moreover, it is handled by lawyers and human resource professionals whose job it is to buffer the organization from the legal system’s excesses. All of these factors tend to tilt the legal playing field in the direction of the employing organization, perhaps making them reticent to tinker with the status quo. In the larger picture, how well does employment discrimination litigation eliminate

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workplace inequality or produce a sense of legitimacy about the courts? Litigation is problematic in that so many cases are little more than cooling out periods in which employers can wait out unrepresented plaintiffs whose cases will be dismissed. For those plaintiffs that survive this process, it often leads to small settlements that are unlikely to significantly change organizations’ practices. In addition, the asymmetries in the parties’ experiences with litigation and resources tend to put plaintiffs at a significant disadvantage in employment discrimination cases, which further contributes to their strong sense of disillusionment with legal remedies.

References Abel, Richard L. 1998. Speaking Respect, Respecting Speech. Chicago: University of Chicago Press. Adler, Jane , Deborah Hensler, and Charles Nelson. 1983. "Simple Justice: How Litigants Fare in the Pittsburgh Court Arbitration Program." The RAND Corporation. Albiston, Catherine. 2005. "Mobilizing Employment Rights in the Workplace." Pp. 301-324 in Handbook of Employment Discrimination Research: Rights and Realities, edited by Laura Beth Nielsen and Robert Nelson. Dorecht: Springer. Bailis, Daniel S., and Robert J. MacCoun. 1996. "Estimating liability risks with the media as your guide: A content analysis of media coverage of tort litigation." Law and Human Behavior 20:419-29. Beckman, Howard B., Kathryn M. Markakis, Anthony Suchman, and Richard Frankel. 1994. "The doctor-patient relationship and malpractice: Lessons from plaintiff depositions." Archives of Internal Medicine 154:1365-70. Bisom-Rapp, Susan. 1999. "Bulletproofing the workplace: Symbol and substance in employment discrimination law and practice." Florida State University Law Review 26:959-1049. Blader, Steven L. , and Tom R. Tyler. 2003. "A four component model of procedural justice: Defining the meaning of a "fair" process." Personality and Social Psychology Review 7:349-61. Blanchard, Edward B., Edward J. Hickling, Ann E. Taylor, Todd C. Buckley, Warren R. Loos, and Janine Walsh. 1998. "Effects of litigation settlements on posttraumatic stress symptoms in motor vehicle accident victims." Journal of Traumatic Stress 11:337-54. Blumer, Herbert. 1962. "Society as Symbolic Inter-action." in Human Behavior and Social Processes, edited by A. M. Rose. Boston: Houghton Mifflin Co. Bourdieu, Pierre. 1993. "Concluding remarks: For a sociogenetic understanding of intellectual works." in Bourdieu: Critical Perspectives, edited by Craig Calhoun, Edward LiPuma, and Moishe Postone. Chicago: University of Chicago Press. Bumiller, Kristen. 1987. "Victims in the Shadow of the Law: A Critique of the Model of Legal Page 51 of 56, 3/12/2010 

Protection." Signs: Journal of Women and Culture in Society 12:421 - 534. Burke, Tom. 2003. "How Do Rights Work? The Case of the Americans with Disabilities Act." in Rights and Realities: Legal and Social Scientific Approaches to Employment Discrimination. Stanford Law School. Collie, Thérèse, Graham Bradley, and Beverley A. Sparks. 2002. "Fair process revisited: Differential effects of interactional and procedural justice in the presence of social comparison information." Journal of Experimental Social Psychology 38:545-55 Curran, Barbara A. 1977. The Legal Needs of the Public: The Final Report of a National Survey. Chicago: American Bar Foundation. Dobbin, Frank R., and Erin Kelly. 2007. "How to stop harassment: Professional construction of legal compliance in organizations." American Journal of Sociology 112:1203–43. Donohue, John J. 1992. "Advocacy Versus Analysis in Assessing Employment Discrimination Law." Stanford Law Review 44. Donohue, John J., and James Heckman. 1997. "Continuous Versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks." Pp. 225 - 242 in Foundations of Employment Discrimination Law, edited by John J. Donohue III. New York: Foundation Press. Donohue, John J., and Peter Siegelman. 1991. "The Changing Nature of Employment Discrimination Litigation." Stanford Law Review 43:983-1033. Edelman, Lauren B. 1990. "Legal Environments and Organizational Governance: The Expansion of Due Process in the American Workplace." American Journal of Sociology 1990:1401 1440. —. 1992. "Legal ambiguity and symbolic structures: Organizational mediation of civil rights law." American Journal of Sociology 97:531-76. Edelman, Lauren B., Howard S. Erlanger, and John Lande. 1993. "Internal dispute resolution: The transformation of civil rights in the workplace." Law & Society Review 27:497-531. Edelman, Lauren B., Sally Riggs Fuller, and Iona Mara-Drieta. 2001. "Diversity Rhetoric and the Managerialization of Law." American Journal of Sociology 106:1589 - 1641. Edelman, Lauren B., Sally Riggs Fuller, and Iona Mara-Drita. 2001. "Diversity rhetoric and the managerialization of law." American Journal of Sociology 106:1589-1642. Edelman, Lauren B., Linda H. Krieger, Scott R. Eliason, Catherine Albiston, and Virginia Mellema. 2008. "Judicial deference to institutionalized employment practices." in Paper presented at the Discoveries of the Discrimination Research Group conference. Stanford Law School. Engel, David. 1993. "Law in the Domains of Everyday Life: The Construction of Community and Difference." in Law and Everyday Life, edited by A. Sarat and T.R. Kearns. Ann Arbor: University of Michigan Press. Engel, David M., and Frank W. Munger. 2003. Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities. Chicago: University of Chicago Press. Ewick, Patricia, and Susan Silbey. 1992. "Conformity, Contestation, and Resistance: An Account of Legal Consciousness." New England Law Review 26:731-749. Ewick, Patricia, and Susan S. Silbey. 1998. The Common Place of Law: Stories From Everyday Life. Chicago: University of Chicago Press. Felstiner, William, Richard Abel, and Austin Sarat. 1980. "The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming." Law and Society Review 15:631-55. Fiske, Susan T. 1998. "Stereotyping, Prejudice, and Discrimination." Pp. 357-411 in Handbook Page 52 of 56, 3/12/2010 

of Social Psychology, edited by D.T. Gilbert, Susan T. Fiske, and G. Lindzey. New York: McGraw-Hill. —. 2005. "What We Know about the Problem of the Century: Lessons from Social Science to the Law, and Back." Pp. 59-74 in Handbook of Employment Discrimination Research: Rights and Realities, edited by Laura Beth Nielsen and Robert Nelson. Dordrecht: Springer. Folger, Robert. 1984. "Perceived Injustice, Referent Cognitions, and the Concept of Comparison Level." Representative Research in Social Psychology 14:88 - 108. Galanter, Marc. 1974. "Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change." Law and Society Review 9:95-160. Giddens, Anthony. 1990. The Consequences of Modernity. Stanford, CA: Stanford University Press. Greenberg, Jerald. 1987. "A Taxonomy of Organizational Justice Theories." The Academy of Management Review 12:9-22. Grossman, Joel B., Herbert M. Kritzer, and Stewart Macaulay. 1999. "Do the "haves" still come out ahead?" Law and Society Review 33. Hafer, Carolyn, and Laurent Bègue. 2005. "Experimental research on just-world theory: Problems, developments, and future challenges " Psychological Bulletin 131:128-67. Haltom, William, and Michael McCann. 1999. "Hegemonic Tales and Everyday News: How Newspapers Cover Civil Litigation." unpublished manuscript, on file with authors. —. 2004a. "Distorting the Law: Politics, Media, and the Litigation Crisis." Chicago: University of Chicago Press. —. 2004b. Distorting the Law: Politics, Media, and the Litigation Crisis. Chicago: University of Chicago Press. Kalev, Alexandra, Frank Dobbin, and Erin Kelly. 2006. "Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action Policies." American Sociological Review 71:589 - 617. Kim, Pauline T. 1997. "Bargaining with imperfect information: A study of worker perceptions of legal protection in an at-will world." Cornell Law Review 83:105-160. Kritzer, Herbert M., and Susan Silbey (Eds.). 2003. In Litigation Do the "Haves" Still Come Out Ahead. Stanford: Stanford University Press. Lind, Allan E., and Tom R. Tyler. 1988. The Social Psychology of Procedural Justice. New York: Plenum. Lind, E. Allan, Carol T. Kulik, Maureen Ambrose, and Maria V. de Vera Park. 1993. "Individual and corporate dispute resolution: Using procedural fairness as a decision heuristic " Administrative Science Quarterly 38:224-251. Lofland, John, and Lyn H. Lofland. 1995. Analyzing Social Settings: A Guide to Qualitative Research and Analysis. Belmont, CA: Wadsworth. MacCoun, Robert J. 2005. "Voice, control, and belonging: The double-edged sword of procedural fairness." Annual Review of Law and Social Science 1:171-201. MacCoun, Robert J., E. Allan Lind, Deborah R. Hensler, David L. Bryant, and Patricia Ebener. 1988. "Alternative adjudication: An evaluation of the New Jersey automobile arbitration program ". Santa Monica, CA: RAND. Major, Brenda, Richard H. Gramzow, Shannon K. McCoy, Shana Levin, Toni Schmader, and Jiom Sidanius. 2002. "Perceiving Personal Discriminaiton: The Role of Group States and Legitimizing Ideology." Journal of Personality and Social Psychology 82:269 - 282. Page 53 of 56, 3/12/2010 

Major, Brenda, and Cheryl Kaiser. 2005. "Perceiving and Claiming Discrimination." in Handbook of Employment Discrimination Research: Rights and Realities, edited by Laura Beth Nielsen and Robert L. Nelson: Springer. March, J.G., L.S. Sproul, and M Tamuz. 2003. "Learning from samples of one or fewer." Organization Science 2:1 - 13. Marshall, Anna-Maria. 2003. "Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment." Law and Social Inquiry. Merry, Sally Engle. 1990. Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans. Chicago: University of Chicago Press. Miles, Matthew B., and Michael A. Huberman. 1994. Qualitative Data Analysis: An Expanded Sourcebook. Thousand Oaks: SAGE. Mullen, Elizabeth, and Janice Nadler. 2008. "Moral spillovers: The effect of moral violations on deviant behavior." Journal of Experimental Social Psychology 44:1239–45. Naumann, Stefanie E., and Nathan Bennett. 2000. "A Case for Procedural Justice Climate: Development and Test of a Multilevel Model." The Academy of Management Journal 43:881-889. Nielsen, Laura Beth. 2000. "Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment." Law and Society Review 34:201 236. Nielsen, Laura Beth, and Aaron Beim. 2004. "Media misrepresentation: Title VII, print media, and public perceptions of discrimination litigation." Stanford Law and Policy Review 15:237–365. Nielsen, Laura Beth, Robert L. Nelson, and Ryon Lancaster. 2010 (forthcoming). "Individualized justice: Litigating claims of employment discrimination in the contemporary United States." Journal of Empirical Legal Studies Nielsen, Laura Beth, Robert L. Nelson, Ryon Lancaster, and Nicholas Pedriana. 2008. Characteristics and Outcomes of Federal Employment Discrimination Litigation, 19872003. Chicago: American Bar Foundation. Sarat, Austin. 1977. "Studying American Legal Culture: An Assessment of Survey Evidence." Law & Society Review 11:427 - 477. —. 1990. "The Law is All Over: Power, Resistance, and the Legal Consciousness of the Welfare Poor." Yale Journal of Law and Humanities 2. —. 1993. "Review: Authority, Anxiety, and Procedural Justice: Moving from Scientific Detachment to Critical Engagement." Law & Society Review 27:647-671. Sarat, Austin, and William Felstiner. 1995. Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process. New York: Oxford University Press. Sarat, Austin, and Thomas R. Kearns. 1993. "Beyond the Great Divide: Forms of Legal Scholarship and Everyday Life." in Law in Everyday Life, edited by Austin Sarat and Thomas R. Kearns. Ann Arbor: University of Michigan Press. —. 1995. Law in Everyday Life. Ann Arbor: University of Michigan Press. Skitka, Linda J. 2002. "Do the means always justify the ends, or do the ends sometimes justify the means? A value protection model of reasoning." Personality and Social Psychology Bulletin:588-97. Small, Mario. 2009. "`How many cases do I need?': On science and the logic of case selection in field-based research." Ethnography 10. Sutton, John R., and Frank Dobbin. 1996. "The Two Faces of Governance: Responses to Legal Page 54 of 56, 3/12/2010 

Uncertainty in U.S. Firms, 1955 to 1985." American Sociological Review 61:796-811. Thibaut, John, and Laurens Walker. 1978. "A Theory of Procedure." California Law Review 66:541-566. Tyler, Tom R. 1984. "The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience." Law & Society Review 18:51-74. —. 1989. "The psychology of procedural justice: A test of the group value model." Journal of Personality and Social Psychology 57. —. 1990. Why People Obey the Law. New Haven: Yale University Press. Tyler, Tom R., and Robert Folger. 1980. "Distributional and procedural aspects of satisfaction with citizen-police encounters." Basic and Applied Social Psychology 1:281-92. Tyler, Tom R., Yuen J. Huo, and E. Allan Lind. 1999. "The two psychologies of conflict resolution: Differing antecedents of pre-experience choices and post-experience evaluations." Group Processes and Intergroup Relations 2:99-118. Tyler, Tom R., and E. Allan Lind. 1992. "A relational model of authority in groups." Advances in Experimental Social Psychology 25:115-191. Weiss, Robert S. 1994. Learning from Strangers. New York: Free Press.

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Appendix Table 1. Interviewee Demographics Plaintiffs (41 cases)

Defendants (20 cases)

Selected for Claims Based on Race 12 Sex 15 Age 12 Disability 15

Position Inside counsel HR manager

Type of Employer Private company Government Non-profit

Type of Employer Private company 12 Government 5 Non-profit 3

28 12 1

Race White Black

25 16

Gender Female Male

18 23

16 4

Race White Black Other

17 2 1

Gender Female Male

11 9

Legal representation Pro se all of the case 7 Pro se part of the case 5 At least one attorney 34 for all or some portion of the case

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