Discerning Form From Substance: Understanding Employer Litigation Prevention Strategies

Abstract

Susan Bisom-Rapp

Many commentators note that civil rights law is an increasingly ineffective tool for ferreting out bias in the American workplace. In this Article, Professor Susan Bisom-Rapp examines a previously unexplored factor that limits the efficacy of employment discrimination law: employersË litigation prevention tactics. Focusing on individual disparate treatment claims, she argues that the increasing sophistication of often well-meaning employers in bulletproofing their employment decisions from challenge can mask rather than eliminate some discriminatory decision-making. These tainted actions go undetected and without remedy for three reasons. First, agency personnel investigating individual employee complaints rarely look beyond apparently neutral documentary and testimonial evidence provided by employers. Next, plaintiffs attorneys hesitate to accept clients whose employers document performance difficulties in neutral terms. Finally, judges are reluctant to disrupt what appears to be neutral employment decision-making. The Article concludes by exhorting attorneys and others to be mindful of the sophistication with which many employers act and offers suggestions, in appropriate cases, for turning litigation prevention against those who practice it.