The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, in favor of their own sense of workplace dynamics, tendencies, and trends. Further, this article observes an interesting asymmetry to how and when so-called “real-world” considerations have been taken into account by the Supreme Court: turning a blind eye to workplace realities that might aid in crafting legal standards and interpretations that do not render legal recourse practically inaccessible to plaintiffs, while overplaying workplace realities and reality-based concerns like those about litigation floodgates when it comes to defendant-friendly holdings and constructions. More balance and transparency is needed when courts weigh the policy considerations that underlie a given decision, and these considerations should be informed, wherever possible, by legitimate sources, and not by caricaturish and monolithic premises too often employed by the judiciary.
Kerri Lynn Stone,
, 28 J.Civ.Rts.&Econ.Dev. 227
Available at: http://ecollections.law.fiu.edu/faculty_publications/212