Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation

Ellen Berrey*, Steve G. Hoffman, Laura Beth Nielsen

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

49 Scopus citations

Abstract

A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public's perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants' perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in-depth interviews with defendant's representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants' representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. Audio recordings of respondents quoted in this article are available online.

Original languageEnglish (US)
Pages (from-to)1-36
Number of pages36
JournalLaw and Society Review
Volume46
Issue number1
DOIs
StatePublished - Mar 1 2012

ASJC Scopus subject areas

  • Sociology and Political Science
  • Law

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