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Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation


  • Ellen Berrey,

  • Steve G. Hoffman,

  • Laura Beth Nielsen

  • This research was funded by the American Bar Foundation, the National Science Foundation (#SES-0417389), and the Searle Foundation. The research benefited from participation in the Discrimination Research Group, a joint effort funded by the American Bar Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Ford Foundation (#1045-0189). This article was also aided by Laura Beth Nielsen's participation in the Sociolegal Justice Project (SJP), which is a joint effort of the American Bar Foundation, the National Science Foundation, and George Mason University. We received helpful input from the anonymous reviewers and from participants in the 2009 Law & Society Association meeting, the 2009 American Sociological Association meeting, and workshops and colloquia hosted by Cornell University, Emory University, Stanford University, University at Buffalo, University of California, Berkeley, and University of Illinois at Chicago. Robert Nelson, Mary Rose, and Rebecca Sandefur deserve special thanks for their close readings of previous drafts. Kate Kindleberger, Evan Lowney, and Talia Schiff provided excellent research support. Please address correspondence to Ellen Berrey, University at Buffalo, SUNY, Park 430, Buffalo, NY 14260; e-mail:
  • Readers can hear the data in respondents' own voices by listening to online audio recordings of the lengthy quotations. There are a few ways to listen to the 22 audio clips while reading the article. Those who are reading the digital version of the article will see that the name of each person quoted is hyperlinked. After clicking on a hyperlink, readers will be directed to a Web page containing just the audio recording for the appropriate quotation. The other option is for readers to open the article on their computer or to print it out and open the article web page simultaneously ( When these readers reach a lengthy quotation in the article, they can play the recording on the Web page that corresponds to the speaker's name. The recordings are listed on the Web page in the order in which they appear in the article.


A substantial body of sociolegal scholarship suggests that the legitimacy of the law crucially depends on the public's perception that legal processes are fair. The bulk of this research relies on an underdeveloped account of the material and institutional contexts of litigants' perceptions of fairness. We introduce an analysis of situated justice to capture a contextualized conception of how litigants narrate fairness in their actual legal encounters. Our analysis draws on 100 in-depth interviews with defendant's representatives, plaintiffs, and lawyers involved in employment discrimination lawsuits, selected as part of a multimethod study of 1,788 discrimination cases filed in U.S. district courts between 1988 and 2003. This article offers two key empirical findings, the first at the level of individual perceptions and the second at the level of legal institutions. First, we find that neither defendants' representatives nor plaintiffs believe discrimination law is fair. Rather than sharing a complaint, however, each side sees unfairness only in those aspects of the process that work to their disadvantage. Second, we demonstrate that the very notion of fairness can belie structural asymmetries that, overall, profoundly benefit employers in employment discrimination lawsuits. We conclude by discussing how a situated justice analysis calls for a rethinking of empirical research on fairness. Audio recordings of respondents quoted in this article are available online.