Using empirical research to advance workplace equality law scholarship: benefits, pitfalls and challenges

ABSTRACT

Legal scholars are increasingly attuned to the substantial benefits that can be derived from empirical and socio-legal scholarship. While drawing on the knowledge of legal insiders – such as legal practitioners, judges or academics – to critique and evaluate the effectiveness of law and legal reform is an established means of empirically evaluating legal impact, this approach can be particularly problematic in relation to empirical equality research, as legal insiders are unlikely to be members of the under-represented groups that are the focus of equality regulation, and are instead more likely to represent the majoritarian status quo. Drawing on two empirical projects conducted in Australia and the UK, this paper considers the benefits, potential pitfalls and challenges of undertaking empirical equality research in the workplace. Using an insider / outsider lens to facilitate analysis, it canvasses existing gaps in empirical equality law scholarship and considers how future research could address these limitations.

KEYWORDS:

• Empirical research
• equality
• labour
• anti-discrimination law
• methodology

Acknowledgements

An earlier version of this article was presented at the Berkeley Comparative Equality & Anti-Discrimination Law Study Group annual conference in Dublin and the Labour Law Research Network conference in Toronto in June 2017. We greatly appreciate Carolyn Sutherland, Lizzie Barmes and Judy Fudge's very helpful comments on that paper. We are also grateful to the journal's anonymous referees for their feedback. The views expressed herein are those of the authors and are not necessarily those of the Australian Government or Australian Research Council.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Dr Dominique Allen is a Senior Lecturer at Monash University. She has published on anti-discrimination law, workplace discrimination, sexual harassment and ADR both in Australia and internationally. With Neil Rees and Simon Rice, she is the author of Australian Anti-Discrimination and Equal Opportunity Law (The Federation Press, 2018).

Dr Alysia Blackham is a Senior Lecturer and Discovery Early Career Research Fellow at Melbourne Law School at the University of Melbourne. Her research focuses on the intersection of employment law, equality law and public law, using empirical evidence to cast new light on legal problems, with a particular focus on age equality. She is the author of Extending Working Life for Older Workers: Age Discrimination Law, Policy and Practice (Hart Publishing, 2016).

ORCID

Dominique Allen http://orcid.org/0000-0003-3974-0850

Alysia Blackham http://orcid.org/0000-0002-8149-4887

Notes

1 See, for example, Cane and Kritzer (2010a).

2 See, for example, Baldwin and Davis (2003); Cane and Kritzer (2010a); Cummings (2013); Ludlow and Blackham (2015); McConville (2007).

3 See, for example, Dwyer and Buckle (2009), Darra (2008), Oakley (1981).

4 Lindbeck and Snower (1988).

5 Maloney, Jordan and McLaughlin (1994).

6 Engel (1984).

7 Maloney, Jordan and McLaughlin (1994).

8 Maloney, Jordan and McLaughlin (1994).

9 Maloney, Jordan and McLaughlin (1994).

10 Maloney, Jordan and McLaughlin (1994).

11 See Örücü (2007).

12 See, for example, Nielsen and Nelson (2005), Nelson, Berrey and Neilsen (2008), Epstein and King (2002).

13 Baldwin and Davis (2003), pp 880–881.

14 Genn, Partington and Wheeler (2006), p 1. See also Mertz (1994), p 1261.

15 Teitelbaum (1985), p 466.

16 Blackham and Ludlow (2015), p 1.

17 Genn, Partington and Wheeler (2006), p 9.

18 Though, in the US, the Journal of Empirical Legal Studies offers a venue for publication.

19 Cane and Kritzer (2010b), p 3.

20 This term and ‘repeat player’ is used by Galanter to describe participants in the legal system: Galanter (1974).

21 Teubner (1993), p 109.

22 For a small sample, see Barmes and Malleson (2011); Blackham (2013); Feenan (2008); Handsley and Lynch (2015); Hurwitz and Lanier (2016); Malleson (2009); Moran (2006); Gee and Rackley (2017).

23 Nicolson (2005); Rhode (2015); Sommerlad et al (2010); Wald (2011).

24 Ozarow et al (2015); Needham (2015); Vaughan (2017).

25 Menkel-Meadow (1988), p 29.

26 Fredman (2011), pp 31–33.

27 Collins (2003), p 24.

28 Note that this discussion excludes studies of vilification complaints, which are usually part of the same statutory framework but have not been as difficult to enforce as equality claims. We also exclude discussion of studies that have analysed case law only, whether through the doctrinal method, discursive or content analysis, or quantitative analysis of numbers of cases. We have focused solely on empirical studies in the UK and Australia to provide context for our own.

29 Genn, Partington and Wheeler (2006), p 6.

30 In the context of positive action, see similarly Davies and Robison (2016).

31 Davies and Robison (2016).

32 Barmes (2003).

33 Harwood (2014).

34 Sigafoos (2016).

35 Manfredi (2011); Manfredi and Vickers (2013).

36 Barmes (2003).

37 Connolly (2015).

38 McLaughlin (2014). This study also included an interview with one law firm representative – a clear legal insider – though this did not appear to be the focus of the study.

39 See, for example, Blackham (2016).

40 Shah (2013), p 84.

41 Shah (2013), p 84.

42 Shah (2013), p 84.

43 For a similar methodological approach, which involved six interviews with (generally outsider) ‘stakeholders’ on the anticipated impact of age discrimination law in the UK, see Harcourt, Wilkinson and Wood (2010).

44 Boon, Urwin and Karuk (2011), pp 50–51.

45 Boon, Urwin and Karuk (2011), pp 50–51.

46 Busby et al (2013).

47 Rose et al (2015).

48 Indeed, later related research has involved the CAB as a collaborative partner: see Rose et al (2017).

49 Harwood (2016).

50 Indeed, Barmes notes that nearly a third of the senior manager respondents were former lawyers or had legal training, indicating that they are more likely to still be classed as legal insiders: Barmes (2016), p 185.

51 Barmes (2016), pp 183–184, 213.

52 Barmes (2016), p 184.

53 See, for example, Gaze, Chapman and Orifici (2017).

54 This has been optional in Victoria since 2011 but this change post-dates all of the Australian studies considered in this paper.

55 Thornton (1989).

56 Thornton (1989), p 733.

57 Thornthwaite (1993); Hunter and Leonard (1995); Devereux (1996); Chapman and Mason (1999); Chapman (2000); Charlesworth (2008).

58 Hunter and Leonard (1995).

59 Devereux (1996).

60 Chapman and Mason (1999). See also Chapman (2000).

61 Charlesworth (2008).

62 Thornthwaite (1993).

63 Charlesworth and Macdonald (2007).

64 Gaze and Hunter (2010),

65 Thornthwaite (1993), p 33.

66 Chapman and Mason (1999), p 559.

67 Thornthwaite (1993), p 33.

68 Devereux (1996), p 281.

69 Thornthwaite (1993), p 33.

70 This is noted by Charlesworth who collected data based on a pro forma she developed, which was based on questionnaires used by Hunter and Leonard and Chapman and Mason: Charlesworth (2008), p 3.

71 See, for example, discussed by Gaze and Hunter (2010), p 39.

72 Chapman (2000), p 324.

73 Hunter and Leonard (1995), p 2.

74 Hunter and Leonard (1995), p 2.

75 Gaze and Hunter (2010), p 35.

76 They explore some of the reasons for this in Chapters 3 and 6.

77 Gaze and Hunter (2010), pp 36–37.

78 Gaze and Hunter (2010), p 36.

79 For example, Chase and Brewer interviewed five women who lodged a sexual harassment complaint in Queensland: Chase and Brewer (2009).

80 Gaze and Hunter (2010), Ch 2.

81 Charlesworth and Macdonald (2007).

82 Devereux (1996), p 281.

83 Gaze and Hunter (2010), p 32.

84 Gaze and Hunter (2010), pp 32–33.

85 Gaze and Hunter (2010), pp 29–30.

86 Gaze and Hunter (2010), p 30.

87 Some agencies release de-identified information about the nature of the claims they have received, such as in their annual report, but this is not a comprehensive register of all claims and all settlements. Rather, they are usually vignettes which illustrate the type of matters the agency deals with. See eg the AHRC's ‘Conciliation register’, which summarises a selection of resolved complaints: https://www.humanrights.gov.au/complaints/conciliation-register; and for an example of an annual report, see Anti-Discrimination Commission Queensland (2016), pp 27–29.

88 See further Allen (2009), Allen (2010).

89 This project had to be approved by both the university's ethics committee and the Department of Justice (Victoria), which is responsible for administering the VEOHRC.

90 The full results of the project are published in Blackham (2016).

91 Meuser and Nagel (2009), p 24.

92 Stake (2008), p 130.

93 Eisenhardt (2002), p 13; Corbin and Strauss (2008), p 117.

94 May (1993), p 100; Webley (2010), p 934.

95 Webley (2010), p 937.

96 Bogner, Littig and Menz (2009), p 2.

97 Dilworth-Anderson and Cohen (2009), p 490.

98 Full reporting of the Delphi method and its results is included in Blackham (2015) and Blackham (2016).

99 Linstone and Turoff (1977), p 3.

100 Aichholzer (2009), pp 252–253.

101 Rayens and Hahn (2000), p 308.

102 See Rotondi and Gustafson (1996), p 42.

103 This may be attributable to the significant practical challenges associated with the Delphi method, limited knowledge of the method in the legal community, and the traditional dominance of doctrinal research in legal scholarship. See further Blackham (2015).

104 Turoff (1975) p 83.

105 Rayens and Hahn (2000), p 309.

106 Rayens and Hahn (2000), p 309.

107 Turoff and Hiltz (1996), p 58; Aichholzer (2009), p 252.

108 Meuser and Nagel (2009), pp 34–35.

109 See Van Audenhove (2007).

110 Wroblewski and Leitner (2009), p 236.

111 See Van Audenhove (2007).

112 See similarly Rauch (1979), p 167.

113 O’Grady (2006), p 23; see also Seligman, Verkuil and Kang (2005), p 56.

114 O’Grady (2006), p 24.

115 Webley (2016), Yin (2009).

116 Epstein and King (2002).

117 Epstein and King (2002).

118 Webley (2016), Epstein and King (2002).

Additional information

Funding

Alysia's contribution to this article was funded by the Australian Government through the Australian Research Council’s Discovery Projects funding scheme (project DE170100228).