University at Buffalo sociologist Ellen Berrey and two scholars from Northwestern University say U.S. law conceives of employment discrimination too narrowly, thereby allowing discriminatory practices to continue.

Berrey and her co-authors, Robert Nelson and Laura Beth Nielson, make their case in "Divergent Paths: Conflicting Conceptions of Employment Discrimination in Law and the Social Sciences," an article to be published in December in Annual Review of Law and Social Science. Nelson, lead author, is director of the American Bar Foundation, where he holds the MacCrate Research Chair in the Legal Profession, and professor of sociology and law at Northwestern University. Berrey is an assistant professor of sociology at UB, and Nielsen is a research fellow at the American Bar Foundation and an associate professor of sociology and law at Northwestern.

They argue that a narrow legal conception of employment discrimination increasingly dominates judicial opinions. "Coupled with a system of employment discrimination that emphasizes individual claims and individual remedies," they write, "(the law)fails to support the organizational approaches that are most promising for redressing workplace discrimination."

Berrey says that over the past few decades, the law has adopted a "perpetrator" model of discrimination that emphasizes purposeful intent.

"Judges and courts look for malicious individuals who intentionally discriminate," she says. "But research has repeatedly shown that the notion of purposeful intent does not accurately describe how people act or think when they discriminate in the workplace."

The article also notes that people who believe they have been targets of discrimination are required to demonstrate to the courts specific instances of deliberate discrimination, contributing to the large volume of difficult-to-prove litigation cases.

The researchers recommend that research findings of social scientists be recognized within the legal community and that the U.S. government and employers develop systemic programs of reporting, investigation and enforcement.