When Title VII of the Civil Rights Act of 1964 passed, it was heralded as a long-overdue measure to eradicate discrimination. The law has had a profound effect on the workplace, both by helping to establish a public ethic against discrimination and by providing a mechanism by which victims of discrimination can seek redress. Both of these means, however, have run into barriers limiting their effectiveness.
The public ethic against discrimination finds its barrier at the edge of consciousness. Almost everyone in the workplace understands that discrimination is prohibited, and this understanding reduces acts of open hostility or conscious discrimination. Far fewer people in the workplace understand how underlying stereotypes can operate at an unconscious level to affect workplace decisions. This form of discrimination, while less well understood, is also prohibited. As a result, discrimination continues to occur, even in an environment where it is condemned and even by people who share in its condemnation.
The enforcement mechanism has found its barrier in a legal environment where typical dispute resolution options are unattainable for most victims of discrimination. For most workers, it is prohibitively burdensome to obtain legal assistance or to take effective action.
Although it is necessary to address both of these barriers — the complex nature of discrimination and problems with the enforcement mechanism — this article focuses on the latter, ending with a discussion of possible solutions.