William & Mary Bill of Rights Journal
Abstract
Why don’t reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title VII’s administrative scheme—which was created precisely to remedy and deter such conduct—but also incurs a heavy litigative cost in employer liability suits. This Article claims that for certain minority groups, namely Asian Americans, certain cultural differences significantly heighten those structural barriers and consequently leave them underprotected in the legal system. The Article locates the cultural differences in two dimensions of cultural diversity—collectivism and particularism—and a Confucian philosophical norm. Ultimately, it asks and addresses whether the law should accommodate these differences or whether the ethnic minority should accommodate, and thereby assimilate to, the legal norm. It concludes that courts should, as with certain gender differences, consider cultural differences when assessing the reasonableness of the employee’s actions in employer liability suits.