Legal Commentary

Here's the abstract of my new paper, co-authored with Lesley Wexler of Florida State and Jon Klick of UPenn, for which we've just accepted a publication offer by the University of Chicago Law Review. We don't have an SSRN version up yet, but I'll post it when we do.

Passive Discrimination: When Does It Make Sense to Pay Too Little?

Abstract: Economists have long recognized the ability of employers to construct benefits packages to induce workers to sort themselves. For instance, to encourage applications from individuals with a highly valued but largely unobservable characteristic, such as patience, employers might offer benefits that patient individuals are likely to value more than other individuals. By offering a compensation package with highly valued benefits but a relatively low wage, employers will attract workers with the favored characteristic and discourage other individuals from applying for or accepting the job. While economic theory generally views this kind of self-selection in value neutral terms, prejudiced employers could exploit this mechanism design framework to systematically discriminate against individuals on the basis of observable characteristics that the law prohibits employers from considering in their hiring decisions. As long as groups systematically differ in their preferences for various employment terms and conditions, employers can generate sorting in the application and employment acceptance stages, leading to the desired segregated outcome in a way that regulators will find difficult to prevent without dictating uniformity in benefits packages.

We develop a formal model as well as an intuitive discussion of the phenomenon. We provide a number of representative illustrations of how a prejudiced employer could exploit preference heterogeneity for discriminatory ends. These mechanisms include wage and benefit packages such as (1) high pension, low wages, (2) commission-based salaries, (3) Sundays off policies, and (4) free school tuition. We also note that some employers might end up with a segregated workforce even when they have no intention to sort workers or when they intend to sort for a non-discriminatory characteristic.

Finally, we conclude that current federal antidiscrimination law inadequately addresses either intentional or unintentional passive discrimination. Neither disparate treatment nor disparate impact frameworks are well suited to grappling with this form of structural discrimination. Passive discrimination facilitates rather than impedes employee choice and thus, might not be viewed as discrimination per se, even if it results in workplace segregation or means that individuals with protected characteristics who fail to self sort are least likely to value the form of compensation and fringe benefits they receive. We discuss some possible judicial and legislative approaches that may ameliorate passive discrimination, though many raise serious questions of their own.