Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law Practice

This Article examines how employment lawyers representing management play a role in creating data and affect the perception of employment disputes. More specifically, it explores how defense lawyers attempt to strategically position employers to safeguard these clients against discrimination and other employment-related litigation. A primary focus of their advice is on producing an evidentiary record that an employer can use defensively should the need ever arise. Defense attorneys, therefore, counsel employers to implement and carefully administer standardized employee evaluation systems and train supervisors how to write up and terminate employees without running afoul of the law. It goes without saying that defense strategies, where effective, can significantly alter the way a given discharge or failure to promote is understood in both personal and legal terms. Additionally, regardless of merit, management attorneys’ collective actions may influence public attitudes concerning workplace equality achievements more broadly. Most importantly, however, litigation prevention strategies may impact employment discrimination law’s effectiveness as a remedial tool. While these strategies may prompt managers to identify and remedy certain biased actions, preventative practices may mask rather than eliminate some discriminatory decisions. In fact, the central premise of the advice, that one eradicates bias by ignoring immutable characteristics such as race, sex, and age, runs counter to the conscious process that social scientists claim is necessary to correct the subconscious effects of stereotypes disadvantaging minorities, women, and members of other protected groups