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Excerpted From: Yael Plitmann, Authentic Compliance with a Symbolic Legal Standard? How Critical Race Theory Can Change Institutionalist Studies on Diversity in the Workplace, 47 Law and Social Inquiry 331 (February 2022) (11 Footnotes/Reference List) (Full Document)


criticalRacetheory002Alexandra Kalev, Frank Dobbin, and Erin Kelly. “Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies.” American Sociological Review 71 (2006): 589-617.

Lauren B. Edelman, Sally Riggs Fuller, and Iona Mara-Drita. “Diversity Rhetoric and the Managerialization of Law,” American Journal of Sociology 106, no. 6 (2001): 1589-1641.


This review essay introduces critical race theory to the organizational analysis of diversity in the workplace. One central finding of the empirical institutionalist literature examining diversity in organizations is the apparent failure of diversity, as a value adopted by the organization, to transform practices of discrimination and exclusion in the workplace. Scholars in this field implicitly accept the narrative about diversity as a substantive civil rights value, associating its presence with racial justice ideals. A critical analysis of this legal concept inspired by the lessons of critical race theory highlights the problematic legal construction of diversity and its role in justifying and reinforcing racial hierarchies. Adding to existing neo-institutionalist literature, I suggest that, alongside an investigation into employers' compliance practices with diversity precepts, attention should be paid to the limitations inherent in the legal standard of diversity itself.

[T]he concept of diversity, far from a viable means of ensuring affirmative action ... is a serious distraction in the ongoing efforts to achieve racial justice.

--Derrick Bell (2003, 1622)

The turn to diversity in organizations has gained significant attention in both critical race theory and empirical sociological research of organizations. In this review essay, I bring these two bodies of scholarship into conversation, illustrating how critical race theory can refocus institutionalist studies on diversity in the workplace. Grounded in different disciplines and epistemological traditions, these schools seem to share little in common. Critical race theorists have been skeptical of quantitative empirical research, the main method employed by organizational theorists, rejecting it for both its troubling historical origins and its reduction of race to a measurable variable. Critical scholars employ, instead, vastly different methods such as storytelling and textual analysis, aimed at challenging and destabilizing mainstream narratives about our legal and social worlds. Nonetheless, it is my contention that organizational sociologists studying legal values in the workplace stand to benefit from a critical race theory analysis of those values, in both their theoretical framework and the interpretation of their findings. Facilitating a dialog between critical race theory and social science research can enrich both, allowing scholars to better understand racial discrimination in the United States. Such a conversation can be especially fruitful when it comes to examining diversity as scholars in both fields share a suspicion that diversity is not the core of the solution for organizational inequality. The scarcity of dialog among them, then, might have more to do with disciplinary barriers than substantive disagreement.

Crossing these disciplinary lines, I will focus on a prominent strand in the institutionalist literature, one concerned with the observed failure of diversity, as a legal value adopted by organizations to change the racial composition of the workplace. This line of empirical research, I suggest, treats the legal standard of diversity as a substantive social justice value a priori, even if it is an ineffective one a posteriori. Researchers in the field do not question the limitations of the legal concept itself, taking for granted that it was meant to promote workplace equality. Two classic institutionalist accounts offer explanations for the failure of diversity initiatives to advance racial justice in the workplace. Alexandra Kalev, Frank Dobbin, and others have argued that corporate policy makers seek out diversity sincerely but have no idea which initiatives are effective. Employers' compliance practices, according to this account, are genuine but clueless. I will refer to this body of scholarship as empirical institutionalism. Lauren Edelman and various colleagues see different factors at play. They criticize the notion of diversity in the organizational, albeit not the legal, context and suggest that employers' diversity practices and rhetoric disassociate the concept from civil rights values. According to this more critical account, organizational compliance practices with diversity edicts are mostly symbolic. I will refer to this body of scholarship as critical institutionalism. Both accounts curiously leave the problematic legal concept of diversity unscathed.

A critical analysis of the legal vision of diversity, inspired by the lessons of critical race theory, exposes the limitations of the concept in addressing systematic past and ongoing racial harms. Although the concept was developed by the US Supreme Court primarily in the field of education, this legal vision was widely accepted in both the education and employment fields (Leong 2013). Diffused, ahistorical and decontextualized, diversity was constructed in the Supreme Court's affirmative action jurisprudence as an individualistic value, unconcerned with entrenched structures of racial hierarchies that are hardwired into organizational fields. As critical race theorists have argued, by diverting attention away from a repudiation of racial oppression to a symbolic commitment to tolerance for a variety of cultures and backgrounds, diversity works to obscure racism and structural inequalities while reinforcing stereotypes. Introducing the critique of diversity to this line of organizational research is a step toward understanding not only the self-evident failure of diversity practices in altering the racial composition of the workplace but also how they work to produce and reinforce inequality in American organizations. This critique can explain the tenacity of racial inequality in organizations not only despite, but also in relation to, costly diversity programs and ubiquitous diversity training.

This review essay adds to the neo-institutionalist literature on workplace inequality by suggesting that the inability of diversity to battle inequality lies not only with its practical implementation but also, first and foremost, with its theoretical legal construction. While institutionalists implicitly treat the concept of diversity as a substantive civil rights value hollowed out by organizational practices, the critical inquiry into diversity exposes it as a legal strategy that undermines and mystifies the possibility of racial equality in American organizations. Rather than an instance of “symbolic compliance” with civil rights values adopted by organizations to win legitimacy, the case of diversity is better described as authentic organizational compliance with a symbolic legal standard that, by its very definition, cannot deliver racial equality. Even when organizational diversity programs are taken seriously and executed sincerely, they cannot bring about racial equality in the workplace. This is not because “diversity programs fail,” as empirical institutionalists conclude, but, rather, because they succeed. The legal concept of diversity in the American workplace works as expected according to its demarcated legal scope. Without the critical legal analysis of this concept, in other words, organizational theory on workplace inequality would not be able to fully explain why commitment to diversity in the workplace fails to change what it seems legally meant to preserve.

To make the case for these claims, I will proceed as follows: First, I will introduce the principal institutionalist studies on diversity, focusing on the work of Dobbin and Kalev as well as Edelman and her various colleagues. I will point out the institutionalists' main oversight - their uncritical stance toward the legal concept of diversity. Then, I will describe the legal construction of the notion of diversity in the contiguous educational field and its analysis by critical race scholars and other critical scholars. These sections will specifically address the two main shortcomings of diversity that render it a symbolic legal standard. I will conclude by suggesting how critical race theory can change institutionalist studies on diversity in the workplace.

[. . .]

Empirical institutionalist studies on diversity are important quantitative analyses of organizational practices. As we have seen, however, these studies uncritically assume that the diversity ideal was designed to promote a more racially equitable workplace. When their findings show a tenuous relation between the two variables, researchers conclude that diversity programs do not work, whether because of incomplete fulfillment by employers or their inauthentic compliance with legal standards. In so doing, these studies are part of the institutionalist tradition that demonstrates how employers' compliance with civil rights legislation is often a facial commitment to equality and antidiscrimination in the workplace, which is symbolic or ceremonial in nature.

This line of research considers formal legal rules largely ambiguous and controversial, inviting organizational actors to concretize the law and fill in its lacunae. When organizations possess the power to construct the meaning of their compliance, processes such as the “managerialization of law” occur, in which managerial logic penetrates legal fields and, in turn, changes the meaning of law. According to critical institutionalists, this is what happened with the diversity ideal. At the same time, however, both empirical and critical institutionalists implicitly and uncritically assume that current legal precepts regarding diversity unambiguously promote a vision of civil rights that can disrupt racial injustices in the workplace. In this account, employers' actions--insincere, symbolic, and ineffective as they are--impede law's lucid vision of justice.

Critical race theory conceptions of diversity, as I have shown, allow us to challenge the neo-institutionalists' background assumptions about the interplay of law and organizations. Rather than eradicating current racial hierarchies, the doctrinal legal development of diversity by the court reproduces and reinforces those structures further. Superficially speaking, the language of racial inclusion and the celebration of differences as well as the legal discourse on diversity reject transformative agendas meant to address past and present racial injustices, preserving the current social structure. Cast in all but colorblind terms of “diversity of backgrounds,” in which race plays only a limited role, if any, the legal commitment to diversity lacks any meaningful substance capable of combating pervasive racial discrimination in the workplace. Far from an effort toward racial equality, the legal vision of diversity is an impediment to the enduring struggle for racial justice.

The critical perspectives on diversity thus complicate the institutionalist notion of law's “failures” in the workplace. Instead of understanding empirical findings about diversity in the workplace as another illustration of the “law on the books, law in action” dichotomy, critical race theory invites us to reconsider the very supposition that the legal construction of diversity was an effort toward racial equality to begin with. It raises the question of whether the case of diversity is less an example of the “managerialization of law” or of its ineffective implementation than an instance of authentic compliance and keen organizational alignment with a legal framework that does nothing to threaten the inequitable status quo of those organizations.

Yael Plitmann is a PhD Candidate, Jurisprudence and Social Policy Program, University of California, Berkeley, United States.

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