The Three Theories of Discrimination in the Brown Collar

University of Chicago Legal Forum

Volume 2009 | Issue 1 Article 10

The Three Theories of Discrimination in the BrownCollar WorkplaceLeticia M. [email protected]

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Recommended CitationSaucedo, Leticia M. () "The Three Theories of Discrimination in the Brown Collar Workplace," University of Chicago Legal Forum: Vol.2009: Iss. 1, Article 10.Available at: http://chicagounbound.uchicago.edu/uclf/vol2009/iss1/10

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Three Theories of Discrimination in theBrown Collar Workplace

Leticia M. Saucedot

In the immigrant workplace, tough working conditions andbad wages are often explained as simply exploitative conditionscharacteristic of low-wage workplaces. It is not typical to charac-terize the conditions of low-wage immigrant workplaces as theresult of discriminatory practices for several reasons. First, in ananti-discrimination framework that focuses on barriers to entryand promotion, immigrant workers have jobs, so they shouldhave little to complain about.1 Second, the anti-discriminationframework is subject to highly contested debates about whatrights, if any, immigrant workers-especially undocumentedworkers-have in the workplace. 2 Third, discrimination frame-

t Professor of Law, Wm. S. Boyd School of Law, University of Nevada, Las Vegas;J.D., 1996, Harvard Law School. I thank Stephen Befort, Devon Carbado, Martha Cha-mallas, Matthew Finkin, Tristin Green, Jeff Hirsch, Cristina Morales, Ann McGinley,Vicki Schultz, Charles Sullivan, Michelle Travis, Michael Waterstone, Deborah Widissand Michael Zimmer for their insightful comments on earlier drafts of this article.Thanks also to participants of The University of Chicago Legal Forum Symposium, theYale Workplace Theory and Policy Seminar, The UCLA Critical Race Theory Seminar,the Seton Hall Labor and Employment Law Scholars' Forum, and the University of SanFrancisco Law Review Symposium for their excellent feedback, suggestions and com-ments.

1 In fact, much legal scholarship and case theory focuses on those locked out of jobsby discriminatory practices, even in the low-wage sector. See, for example, Jennifer Gor-don and R.A. Lenhardt, Rethinking Work and Citizenship, 55 UCLA L Rev 1161 (2008)(discussing differing perspectives on low-wage employment opportunities for AfricanAmerican and Latino immigrant workers); Katherine V.W. Stone, From Widgets to Digits157-68 (Cambridge 2001) (discussing the ways in which women and minorities have beenexcluded from jobs historically and in today's workplace); EEOC v Consolidated ServiceSystems, 989 F2d 233, 237-38 (7th Cir 1993) (challenging the discriminatory hiring prac-tices of a Korean-owned business).

2 This was the underlying rationale of the employer's argument in Hoffman Plastic

Compounds, Inc v NLRB, 535 US 137 (2002), in which the Supreme Court held that un-documented workers' remedial rights were limited in unfair labor practice cases underthe NLRA. While undocumented workers continue to be considered workers under theNLRA, the Hoffman ruling limits their ability to enforce remedial rights such as back payand reinstatement. Id at 150. Another employer, Agri Processor Company, recently madea similar argument in challenging a successful union election in which the majority of theworkers who voted for a union were undocumented. Agri Processor Co, Inc v NLRB, 514F3d 1, 7-8 (DC Cir 2008). The DC Circuit affirmed the lower court ruling that undocu-

THE UNIVERSITY OF CHICAGO LEGAL FORUM

works aside, the popular imagination in the United States ac-cepts the existence of bad, low-wage jobs that are exploitative orsubstandard for all workers who hold them, regardless of race,national origin, gender, or other protected status. While it maybe the case that not all exploitative conditions in low-wageworkplaces can be remedied through anti-discrimination law,there may be a specific set of conditions resulting from employertargeting of immigrants that can be characterized as discrimina-tory. Focusing on such conditions and how they arise out of dis-criminatory practices may provide us a unique perspective onhow discriminatory practices manifest themselves, even if noteveryone in the workplace is a member of a protected class.

In this Article I aim to apply three discrimination theories tothe immigrant workplace setting. The three theories of discrimi-nation I discuss here are alternatives proposed by legal scholarsand others to the traditional disparate treatment and disparateimpact theories of workplace discrimination. I apply these theo-ries in the low-wage immigrant workplace context because Iwant to challenge the assumptions that immigrant workers-who have a tenuous right to these jobs-should not be able to useanti-discrimination law to improve bad working conditions. Thedynamics of the employment relationship, and their effects onimmigrants provide a unique lens through which to examine howseemingly neutral practices may be discriminatory once a popu-lation is targeted for a set of jobs or occupations. By focusing ondiscrimination theories in the immigrant workplace, moreover, Iaim to expand the limited concepts of discrimination to includethe remediation of bad working conditions, especially when theyexist in segregated workplaces.

Several legal scholars have begun to question the emphasisin anti-discrimination law on formal barriers to entry and pro-motion, and have started to look at what happens in theworkplace "after inclusion."3 These scholars argue that anti-discrimination law should pay more attention to how well work-ers are integrated into the workplace after they are hired. I focusin this Article on the works of legal scholars of three discrimina-

mented workers were employees under the Act and had the right to unionize. Id at 5.3 See, for example, Devon W. Carbado, Catherine Fisk, and Mitu Gulati, After Inclu-

sion, 4 Ann Rev L & Soc Sci 83 (2008) (analyzing discriminatory practices operating intandem with workplace inclusion in certain jobs); Tristin K. Green, A Structural Ap-proach as Antidiscrimination Mandate: Locating Employer Wrong, 60 Vand L Rev 849(2007) (arguing for a structural approach to employment discrimination that would in-clude employers' subtle discriminatory workplace decisionmaking).

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3451 THREE THEORIES OF DISCRIMINATION

tion theories, as a way to explain some of the discriminatory dy-namics in low-wage immigrant workplaces that prevent real in-tegration. I draw on the work of legal scholars who have appliedstructuralist theories, performance identity theories, and mascu-linities theories to workplace environments. These three theoriesfocus on distinct but interrelated aspects of discrimination: howthe employer structures the workplace (structuralist approach-es);4 how employees respond to workplace structures in order tofit in (performance identity);5 and how workers create narrativesamongst themselves to maintain their place within theworkplace hierarchy and at the same time preserve existingworkplace structures (masculinities).6 Together these theoriesdescribe how discrimination manifests itself in the immigrantworkplace. Immigrant workplaces operate at the intersection ofthese three theories, creating a form of discrimination not readilyrecognized by either the racial animus-based disparate treat-ment theory, or the neutral policy-based disparate impact theory.My aim in focusing on low-wage, immigrant worker settings isboth to dispel the myth that workplace discrimination begins andends with access to jobs, as well as the myth that biased behaviorin low-wage work simply reflects or mirrors biased behavior inlarger society. I also aim to highlight the similarities betweendiscrimination in the workplace in general and discrimination inimmigrant workplaces, where workers have "questionable rights"

4 See, for example, Vicki Schultz, Telling Stories about Women and Work: JudicialInterpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack ofInterest Argument, 103 Harv L Rev 1749, 1776-1843 (1990) (analyzing treatment of the"lack of interest" defense in sex discrimination cases and arguing that women's workpreferences do not precede their work, but instead are shaped in response to coercivestructural features of the workplace); Susan Sturm, Second Generation EmploymentDiscrimination: A Structural Approach, 101 Colum L Rev 458, 553-67 (2001) (arguing fora structural regulatory approach to discrimination in the workplace that can target "sec-ondary discrimination"-subtle forms of discrimination and exclusion that emerge fromcomplex work relationships, which often rely on amorphous structures for decisionmak-ing, cooperation, and leadership); Tristin K. Green, Discrimination in Workplace Dynam-ics: Toward a Structural Account of Disparate Treatment Theory, 38 Harv CR-CL L Rev91, 93 (2003) (laying out a structural legal framework for targeting this new kind of dis-crimination by holding employers liable for "organizational structures and institutionsthat unreasonably enable the operation of discriminatory bias in the workplace"); Green,60 Vand L Rev 849, 851 (cited in note 3).

5 See, for example, Devon W. Carbado and Mitu Gulati, Working Identity, 85 CornellL Rev 1259, 1262-63 (2000) (describing how minority workers gauge expectations andperform stereotypical behaviors in an effort to both cope with and avoid discrimination).

6 See, for example, Ann C. McGinley, Masculinities at Work, 83 Or L Rev 359 (2004)(analyzing masculinities in the workplace as a means of maintaining male dominance inthe workplace and proposing a way to incorporate masculinities theory into Title VIi caselaw).


to jobs. I focus on immigrant workplaces in part to show that dis-crimination has little to do with the legal "right" to a job, andeverything to do with the dynamics that employers create whenthey develop and structure jobs. The immigrant workplace, be-cause of its segregated and highly contingent character, allowsus to deconstruct the dynamics of the workplace, to re-examinethe assumption that some workplace conditions are simply ex-ploitative, and to explore discriminatory practices that result inexploitation. 7 The three theories of discrimination, applied sepa-rately in other contexts, work together here to aid in that decon-struction.

For the past two years sociologist Cristina Morales and Ihave conducted a study among immigrant workers in the resi-dential construction field in Las Vegas, Nevada.8 Interviews withdozens of immigrant construction workers in the residential con-struction field in Las Vegas revealed a pattern of gendered beha-vior with respect to the work involved, the safety conditions, andthe types of emflloyment arrangements in the field. The gendereddifferences in response to workplace conditions and the narra-tives developed around them are instructive for their insight intothe effects of workplace structures and dynamics on individualworkers as well as for their insight into how workers' responsestend to reify and solidify those structures. If the relationship be-tween workplace structures and workers' responses are all partof a dynamic process, we cannot so easily accept employer argu-ments that they are not responsible for ameliorating general so-cietal discrimination as it manifests itself in the workplace. Norcan we accept the argument that some workplaces are just bad,low-wage environments not remediable through anti-discrimination frameworks.

7 I use the immigrant workplace in this article as a way to highlight how seeminglyneutral employer practices may actually be discriminatory if the employer has targetedjobs for particular protected groups. I believe the three theories of discrimination inter-sect in unique ways in the immigrant workplace, although they may also intersect toreveal discriminatory practices in other settings, such as gendered workplaces.

8 I worked closely in collaboration with sociologist Cristina Morales, Associate Pro-fessor of Sociology at the University of Texas at El Paso, in an institutional review board("IRB")-approved study at the University of Nevada, Las Vegas, entitled, Labor Demo-graphics and Union Activity in the Las Vegas Construction Industry. The study consistedof focus groups and follow-up interviews of union leaders and construction workers over atwo-year period. Between 2006 and 2007 we interviewed over seventy-five male and fe-male construction workers in Las Vegas, with the purpose of understanding the demo-graphic changes in the residential construction industry and their effects on workers.This is one of a series of Articles analyzing the results of that study.

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THREE THEORIES OF DISCRIMINATION

Immigrant workers are themselves refashioning the defini-tion of what a construction worker looks like. After all, the pic-ture of the Las Vegas construction worker was at one time thatof an Anglo, blue collar, native-born male. The data we gatheredreveal that today the typical residential construction worker is aLatino immigrant male. The demographics demonstrate how anindustry can become racialized over time. Because a subset of theworkers we interviewed were women, moreover, our study gaveus the opportunity to test gendered as well as racializedworkplace dynamics in the low-wage immigrant context. If con-struction work, especially residential construction work, is trans-forming from Anglo, blue collar, unionized, citizen's work to La-tino, brown collar, non-unionized, immigrant work, 9 there is anopportunity to analyze both the dynamics at play in the trans-formation, and how those dynamics affect the gendered and ra-cial nature of the work. There is also an opportunity to suggestchanges in the contours of this work even as it transforms.

Part I of this Article discusses Nancy's story. "Nancy" is acomposite character representing the female gender of the work-ers that we interviewed in our study. Her story reflects the gen-dered responses to workplace conditions that we gleaned fromour interviews. Part II explores the theoretical underpinnings ofeach of the discrimination theories I use to analyze Nancy's situ-ation. Nancy's story lies at the intersection of the structuralist,performance identity, and masculinities theories. These theories,separately and together, aptly describe discrimination as it man-ifests itself in the immigrant workplace. Part III applies thetheories to examples from Nancy's story. Part IV suggests waysthat employers can use the perspectives about discrimination, asdiscussed here, to effect anti-discriminatory practices in the low-wage workplace.

I. NANCY'S STORY: WORKPLACE DYNAMICS IN A BROWNCOLLAR INDUSTRY

Nancy's story and her experiences as an immigrant womanin construction reflect the stories we heard from other women,

9 The term "brown collar work" was coined by a sociologist to describe recently ar-rived Latino immigrant workers who are overrepresented in mostly low-wage occupa-tions. See Lisa Catanzarite, Dynamics of Segregation and Earnings in Brown CollarOccupations, 29 Work & Occupations 300, 301 (2002); Lisa Catanzarite, Brown CollarJobs: Occupational Segregation and Earnings of Recent-Immigrant Latinos, 43 Sociologi-cal Perspectives 45, 46 (2000).

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and her responses to workplace conditions are juxtaposed withthe responses of many of the males on her worksite, whose voicesare also represented in Nancy's story.

Nancy works as a touch-up painter, along with a team of in-dustrial painters, all of whom are male, Latino immigrants. Sheentered the construction field through friends who convinced herthat she would make more money in construction than in theservice industry. Nancy's job is to follow after the painters andfinish the industrial painting work with detailed painting. Hermain task is to perform the detail paint work on every house,and her secondary job is to perform industrial clean-up work toprepare a house for delivery to the builder. She does the samework in every house, and she is not allowed to learn the moreprofessional aspects of the painting process on the job. As withother jobs in the industry, her job has been deskilled, or strippedof its skill requirements, and thus downgraded to unskilled work.It is difficult because it is tedious, time-consuming, and endlesslyrepetitive. Every time she has tried to transfer into an industrialpainting job, which pays more and involves less attention to de-tail, either her co-workers or her supervisors tell her that indus-trial painting is not the type of work she can do. While some ofher fellow painters are sympathetic and have taught her some ofthe skills she needs to move into industrial painting, there is noviable structure for her to move into an industrial painting posi-tion.

The worksite is more dangerous than it should be, accordingto Nancy, because the employers refuse to abide by OccupationalSafety and Health Administration ("OSHA") standards. Workersare asked to work with dangerous fumes without proper masks,for example. Or they are asked to move ladders that are heavierthan fifty pounds, violating the safety standards in the industry.Workers who accept the hazardous conditions do so while theyexplain them away. One male worker described how the compa-ny requires everyone's signature on a set of safety guidelines.Everyone agrees to abide by the safety guidelines, while at thesame time understanding that jobs must be completed on timeand under budget. However, piece rate wage arrangements aredominant in the construction industry, and workers are paid onlyfor what they complete. Those who take safety shortcuts defendtheir decisions to ignore safety rules by pointing to the heavytime demands of the piece rate system.

Nancy complained about work conditions, the piece rate payarrangements, and safety conditions. She was shunned by co-

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workers, ridiculed by supervisors, and ultimately fired from atleast one worksite. Her co-workers responded to her complaintswith a narrative that she was simply not strong enough to do thework. Her supervisors ridiculed and humiliated her for complain-ing, claiming they did not understand how she deserved equaltreatment when she needed to be accommodated for her weak-nesses as a woman.

Nancy got hurt as a result of some of the safety shortcuts ac-cepted on the job. Because the job is structured as an indepen-dent contractor position, she had much trouble trying to get thedrywall and painting company who hired her to pay for her med-ical expenses through workers' compensation. The workers whoaccepted the independent contractor arrangement as part of thenature of the job also accepted that they would not have access tobenefits such as workers' compensation, unemployment, andhealth insurance. These workers, mostly men, explained thatwith the opportunities of entrepreneurialism as independent con-tractors came the risks of owning their own time and labor.

Nancy sought to organize her co-workers into a workers' as-sociation when she realized that the workers needed to collabor-ate to gain leverage with the employer or within the constructionindustry. She has received mixed responses from her co-workers.Both men and women who have made peace with piece rate wag-es, independent contractor arrangements, and the safety condi-tions, and who believe in the pattern of advancement offered bythe work-crew model of business in the industry, are not predis-posed to a union or collective rights model of advancement. Thosewho do not perceive the work-crew a viable model for advance-ment are more receptive to collective organizing initiatives.

To be clear, the residential construction industry of today isvery different from the construction industry of twenty years ago.Twenty years ago, the industry was highly unionized, predomi-nantly Anglo, and well-paying, with benefits, workers' compensa-tion, and unemployment systems providing a safety net for whathas always been a notoriously unsafe job environment. Over theyears, the industry has changed, and it is beginning to reflect thecharacteristics of low-wage jobs that we see proliferating in theUnited States. Specifically, these jobs (while better paid thanmost low-wage occupations) are nonunionized, pay less than inpast decades, have few or no benefits, and do not provide theworkers' compensation, unemployment or health insurance safe-

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ty nets that the jobs provided in past decades. In addition, theyare now held by Latino immigrants in large measure.10

We can interpret Nancy's story in a least three ways. In oneinterpretation, we can say that Nancy is not suited to the type ofjob that her male colleagues seem to tolerate and even enjoy. Wecan even go so far as to say that Nancy is the victim of centuriesof societal bias against women, for which employers are not re-sponsible. In a second interpretation, Nancy's story is one of clas-sic exploitation of low-wage workers, although not necessarily anexample of workplace discrimination. In a third interpretation,we can say that Nancy's story has elements of either gender ornational origin discrimination, but it is difficult to see them bothoperating at the same time in all parts of her story. In this essayI attempt to refute each of these separate characterizations ofNancy's story, and to create a more unified theory of discrimina-tion that fits her whole story. I do this in order to identify as dis-crimination what has been traditionally characterized in low-wage work simply as exploitation or undesirable work that thoseat the bottom of the market ladder must perform. I argue thatbecause Nancy's story lies at the intersection of at least the threetheories of discrimination I explore here, it is not easily capturedby current anti-discrimination frameworks. I use this opportuni-ty to focus on what employers of low-wage immigrants can do tochange workplace dynamics, both to avoid Title VII liability andto encourage the inclusivity and humane workplace conditionsthat Title VII envisioned.

II. THE THREE THEORIES: STRUCTURALISM MEETS PERFORMANCEIDENTITY AND MASCULINITIES IN THE LoW-WAGE

IMMIGRANT WORKPLACE

Nancy's story exemplifies the interconnectedness of thetheories of discrimination that I focus on in this Article. Much ofthe literature in the structuralist, performance identity, andmasculinities theories focuses on professional work environ-ments. There is little application of any of these theories to the

10 See Ruth Milkman and Kent Wong, Organizing the Wicked City: The 1992 South-

ern California Drywall Strike, in Ruth Milkman, ed, Organizing Immigrants: The Chal-lenge for Unions in Contemporary California 169 (Cornell 2000) (describing the demo-graphic changes in the southern California construction industry from Anglo, to immi-grant labor over a period of several decades); Marc Linder, Wars of Attrition: Vietnam, theBusiness Roundtable and the Decline of Construction Unions, 16 (Fanpihua 2000) (de-scribing the decline of construction unions and the evolution of nonunion construction,with the encouragement of government and private employers).

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low-wage immigrant worker context. I aim to do that here, dem-onstrating through Nancy's story how the structuralist theoryprovides an overall framework, and the performance identity andmasculinities theories provide the details and nuance for howdiscrimination operates in the low-wage immigrant workplace.

A. The Structuralist Approach to Discrimination

Structuralist theory focuses on behaviors within theworkplace that, at the outset, may seem uncontrollable becausethey are imported, already formed, into the workplace from theoutside. The theory attempts to link exogenous forces such associetal bias--conscious or unconscious-with employer struc-tures in order to respond to the rhetoric that employers shouldnot be held responsible for societal discrimination.11

In her groundbreaking article, Susan Sturm argued thatstructural discrimination, a more subtle and complex form ofworkplace discrimination, is as destructive as first generationblatant discrimination because it continues to foster "patterns ofinteraction among groups within the workplace that, over time,exclude nondominant groups." 12 These discriminatory structureshave the same exclusionary effect as explicit barriers to entry orpromotion. As Sturm notes, "[tlhis form of harassment may con-sist of undermining women's perceived competence, freezingthem out of crucial social interactions, or sanctioning behaviorthat departs from stereotypes about gender or sexual orientation.It is particularly intractable, because the participants in the con-duct may perceive the same conduct quite differently."'13

For a long time organizational theory did not consider his-torical, social, political or economic influences on the workplace.New structuralist theorists argue that political, social, and eco-nomic factors that seem exogenous actually magnify differen-ces.14 These same factors affect and are affected by employerpractices in the workplace. According to these theorists, moreattention must be paid to how seemingly exogenous forces oper-ate within workplace organizations. Focusing on the interaction

11 See Schultz, 103 Harv L Rev at 1776-1843 (cited in note 4); Vicki Schultz andStephen Petterson, Race, Gender, Work, and Choice: An Empirical Study of the Lack ofInterest Defense in Title VII Cases Challenging Job Segregation, 59 U Chi L Rev 1073,1095-1135 (1992).

12 Sturm, 101 Colum L Rev at 460 (cited in note 4).13 Id at 464-69.14 See Michael Lounsbury and Marc Ventresca, The New Structuralism in Organiza-

tional Theory, 10 Organization 457, 466-68 (2003).

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between the outside forces and the structures within theworkplace may illuminate how discrimination operates in theworkplace today. So, as Sturm argues:

[B]ehavior that appears gender neutral, when consideredin isolation, may actually produce gender bias when con-nected to broader exclusionary patterns. The social im-pact of particular conduct may vary depending upon thecontext in which it occurs and the organizational cultureshaping the perceptions of the various participants. At themargins, it can be difficult to draw lines between discrim-inatory harassment and lawful, albeit unprofessional, de-structive behavior. 15

Structuralist theory, then, questions whether exogenousforces are truly exogenous, suggesting that employers are doingsomething in the workplace to solidify or magnify behaviors.

Tristin Green's work on structuralist theory adds an impor-tant insight to this literature. Her structuralist approach to dis-crimination focuses on the dynamics that are created in theworkplace through the establishment of employment structures.It focuses on how an employer can or should be held accountablefor the existence of subjective decisionmaking processes in theworkplace. It provides a set of guidelines for analyzing how andwhen subjective criteria might have a discriminatory effect orintent in the relationship between employer and employee. Ineither case, the employer should be held liable for its part in fa-cilitating subjective decisionmaking based on bias in theworkplace. 16 Green and others are providing the theoreticalframework for analyzing subjective criteria decisionmaking thatthe Supreme Court held discriminatory in Watson v Fort WorthBank & Trust.17

15 Sturm, 101 Colum L Rev at 469 (cited in note 4).

16 Green, 60 Vand L Rev at 883-900 (cited in note 3); id at 851 ("A structural ap-

proach to employment discrimination law imposes costs on employers that are tied toemployers' wrongs against individuals in the workplace. An employer that facilitatesdiscriminatory workplace decisionmaking engages in the wrong of treating individualsdifferently on the basis of protected group status or characteristics and, perhaps moreimportantly, is worthy of fault for its role in that wrong.").

17 487 US 977 (1988). In Watson, the Supreme Court held that bias that infected thedecisionmaking process because of subjectivity was discriminatory. The Court noted thatsubjective decisionmaking includes those decisions "based on the exercise of personaljudgment or the application of inherently subjective criteria." Id at 988. See also PriceWaterhouse v Hopkins, 490 US 228 (1989) (finding that bias infecting a subjective part-nership decision concerning a female employee described as "macho" and "unfeminine"would be sufficient for employer liability but remanding on other grounds), superseded by

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How does the structuralist approach operate to identify poss-ible discriminatory practices? It starts by analyzing the rationalefor organizational structures in the workplace. One such ratio-nale involves the relationship between in-group and out-groupmembers. Organization theory demonstrates the effectiveness ofaffective commitment-buying into the corporate culture--on acompany's productivity and on stable workplace relationships.Affective commitment requires strong workplace norms. Greenargues that this type of organizational culture engenders disc-riminatory behavior by allowing in-group bias to become the toolfor cohesion and self-esteem. To the extent that an employer setsup structures through which a strong corporate culture is en-couraged among employees, it is responsible for any resultingdiscrimination. In other words, according to Green, because "em-ployers (most often through organizational superiors) make thestructural decisions concerning decisionmaking systems, distri-bution of power, organization of work, and makeup of leadershipand work groups, and those structural decisions necessarilyshape the context in which employment decisions are made,"'8

employers may bear legal responsibility.With respect to the immigrant workplace, a similar type of

characterization may be operating. A structuralist theory revealsthat employers who seek subservient workers may be establish-ing job structures that attract only those workers whose choicesare constrained by outside societal forces. 19 Undocumentedworkers are especially vulnerable to societal and legal con-straints which limit their occupational and their advancementopportunities. The structure of the workplace determines whichjobs are available, the pay rate, and worker mobility. It is thetargeting of these workers that makes a discrimination theoryapt.

Structuralist theory, while setting up the framework for lo-cating employer wrong in the structures that the employer esta-blishes, must still confront the argument that if organizationalstructures are causing discriminatory behavior in the workplace,

legislation, see Landgraf v USI Film Products, 511 US 244, 251 (1994) (explaining thatsection 107 of the Civil Rights Act of 1991, Pub L 102-166, 105 Stat 1071 (1991), codifiedat 42 USC § 1981 (2006), responded to Price Waterhouse by establishing the standard for"mixed motive" cases).

18 Green, 60 Vand L Rev at 890 (cited in note 3).19 Leticia M. Saucedo, The Employer Preference for the Subservient Worker and the

Making of the Brown Collar Workplace, 67 Ohio St L J 961, 964-971 (2006) (discussingemployer practices that encourage subservience from immigrant workers with con-strained choices).

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the employer should be responsible only for the employer's ac-tions and not for the behavior itself, which is societally driven.So, for example, in EEOC v Sears Roebuck & Co,20 a requirementthat Sears must eliminate the "competitiveness" requirement inits job description accommodates women to the extent they arelimited by societal views that women are not competitive. 21 Someargue that eliminating certain requirements that seem exogen-ous to the workplace may exceed the bounds of the anti-discrimination mandate of Title VII.22 The assumption underly-ing this argument is that women come to the workplace hard-wired or programmed by society to prefer more "feminine" formsof work. 23 This argument is based on either human capital orneoclassical economic assumptions, which emphasize individualchoice and the existence of pre-formulated interests that guideworkers into the workplace.24 The structuralist approach pro-vides a sound and strong framework for challenging what seemto be rational employer responses to societal conditions. Mascu-linities and performance identity theories provide us with com-plementary narratives that explain how employees who acceptthe structures that employers proffer, may not be acting entirelyout of a matter of choice. While the structuralist theory assumesthat employee choice is constrained by employer practices, mas-culinities and performance identity theories demonstrate howworkers enact or internalize the constraints in order to manufac-ture their own narratives of choice, even if constrained. In otherwords, they explain why and how workers may adapt their beha-viors to workplace structures. Both theories call the neoclassicaleconomic assumption into question, and add nuance and depth tothe debate over how much employers should be accountable fordiscriminatory practices.

In terms of an anti-discrimination legal perspective, thestructuralist theory has been advanced as a response to the ra-cial animus-centered disparate treatment theory currently fram-ing anti-discrimination discourse. It has also been advanced as aremedy for the disparate impact effects of subconscious stereo-types and prejudices that the Court in Watson recognized were a

20 839 F2d 302, 321 (7th Cir 1988).21 Green, 60 Vand L Rev at 850, 902-03 (cited in note 3).22 Id.23 See Vicki Schultz, Life's Work, 100 Colum L Rev 1881, 1898 (2000).24 Id at 1898-99; Schultz, 103 Harv L Rev at 1776-1850 (cited in note 4); Schultz and

Peterson, 59 U Chi L Rev at 1095-1135 (cited in note 11).

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problem.25 Its strength lies in giving us a perspective from whichto understand subconscious stereotypes as enacted throughworkplace practices and policies. While it encourages courts andemployers to explore dynamics beyond individual decisions, itstill focuses on organizational dynamics from the employer'sperspective. The other theories address the dynamic from theemployee's perspective.

B. Performance Identity Theory: The Role of Coping Mechan-isms in Workplace Discrimination Frameworks

While the structuralist approach focuses on the employer,intersectionality theory (and its subset, performance identitytheory) focuses on how employer practices affect employees. Theintersectionality approach to discrimination focuses on the spe-cial ways that people with multidimensional identities exper-ience discrimination. In other words, racism and sexism intersectto create workplace dynamics that affect those at the intersec-tion.26 The discrimination at the intersection manifests itself dif-ferently from the typical paradigms that exist when one thinks ofeither race or gender discrimination. 27

To advance the concept one step further, performance identi-ty theory posits that race or ethnicity is something that is per-formed as much as, or more than, it is a static, fixed concept. Theperformance identity theory of intersectionality focuses not juston a person's status identity but also on the way that a personchooses to perform her differences. 28 This theory says that racediscrimination in the workplace "is a dialectical process within

25 Watson, 487 US at 990-91 ("If an employer's undisciplined system of subjective

decisionmaking has precisely the same effects as a system pervaded by impermissibleintentional discrimination, it is difficult to see why Title VII's proscription against dis-criminatory actions should not apply.").

26 See Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A

Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and AntiracistPolitics, 1989 U Chi Legal F 139 (contrasting the "multidimensionality" of black womenwho stand at the intersection of two axes of discrimination, and arguing that dominant

discourses are inadequate for understanding the experiences of people who are "multiply-

burdened"); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics,

and Violence Against Women of Color, 43 Stan L Rev 1241, 1242-44 (1991) (using theconcept of intersectionality to highlight how black women, specifically as victims of sexualassault, are unrepresented in dominant feminist and antiracist discourses).

27 Crenshaw, 1981 U Chi Legal F 139 (cited in note 26).

28 Carbado and Gulati, 85 Cornell L Rev at 1262-63 (cited in note 5) ("Racial conduct

discrimination derives, not simply from the fact that an employee is, for example, pheno-typically Asian American, (that is, her racial status) but also from how she performs her

Asian-American identity in the workplace (that is, her racial conduct).").

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which race both shapes, and is shaped by, workplace culture."29

Legal scholars Devon Carbado and Mitu Gulati describe how thistheory explains the costs of discrimination in psychological andbehavioral terms. They take note of the "race-producing practicesreflected in the daily negotiations people of color perform in anattempt to shape how (especially white) people interpret theirnonwhite identities."30 In other words, people do not come to theworkplace already formed by their racial or gendered identities,but instead take their cues from the structures and dynamicsthey see and experience there. 31 Performance identity theoryshares with the structuralist theory the concept of a dialectic inthe workplace that forms and reconstitutes racial and genderdynamics that may exist in society in general but that exist inthe workplace in specific ways. Performance identity adds to thestructuralist discussion by introducing the interplay amongworkplace actors as part of the larger equation. As Carbado andGulati explain: "in the context of everyday interactions, peopleconstruct-that is, they project and interpret particular imagesof-race," as well as class and gender.32 Carbado and Gulati givean example of a black woman who can choose to signal that sheis not a prototypical or stereotypical black through identity per-formances that brand her as "unconventionally" black.33 In theirexample, how a black woman chooses to style her hair signals toan employer her willingness to assimilate or fit in.34 Performanceidentity approaches to workplace discrimination open avenuesfor thinking about discriminatory practices outside of the tradi-tional Title VII racial or gender animus paradigm.

Carbado and Gulati focus on the costs to employees of per-forming in such a way as to signal that they are only phenotypi-cally, but not prototypically, of a certain race, ethnicity, or gend-er. These are costs associated with assimilation or with acting ina manner consistent with the goals of an employer who perceiveshomogeneity as more efficient than a diverse workplace.

29 Devon Carbado and Mitu Gulati, The Law and Economics of Critical Race Theory,

112 Yale L J 1757, 1758 (2003).30 Id at 1760.

31 Id at 1771 ("[The social meaning of, for example, a black person's racial identity isa function of the way in which that person performs (presents) her blackness .... [R]acialidentities are formed in, and produced by, social encounters.').

32 Id.33 Carbado and Gulati, 112 Yale L J at 1771-73 (cited in note 29).34 Id.

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Left unexplored in this literature is the question of the in-centives, costs, limitations, and choices involved for an employeein acting in a way that signals a behavior that employers seek.Performance identity theorists argue that anti-discriminationlaw should explore just how the dynamics in the employer-employee relationship contribute to costs, limitations and choicesof employees. Much of the recent literature in the structuralistand performance identity arenas focuses on white collar or pro-fessional settings, in which employer structures such as team orcollaborative work arrangements exist. 35 The same types of dy-namics occur, in the blue collar and low-wage work sectors. Thequestion of incentives, costs, limitations, and choices is as impor-tant in the low-wage setting, where statistical discriminationoffers for the employer an efficient proxy for creating a reliable,stable, and willing workforce. 36 This is the interesting feature ofthe immigrant workplace. Much has been written in the low-wage immigrant worker context about how employer preferencesfor certain characteristics result in statistical discrimination and,in turn, in immigrant workplaces. 37 To the extent employer pre-ferences and statistical discrimination rely on stereotypes andbiases based on race, ethnicity, gender, or another protected cat-egory, their preference-based behavior is discriminatory. 38 Per-formance identity theory in the low-wage context helps us askquestions about what types of behaviors employers expect from

35 See, for example, Green, 38 Harv CR-CL L Rev 91 (cited in note 4).

36 See Roger David Waldinger and Michael Ira Lichter, How the Other Half Works:

Immigration and the Social Organization of Labor 149-54 (California 2003) (explainingthat employers, in order to replicate hiring success, may "network hire" and hire friendsand associates of incumbent workers, or hire workers with the same characteristics asthose of incumbent workers. This statistical discriminatory hiring scheme may result in ahomogenous workforce that is more prepared or willing to accept its subordinated posi-tion.). See also Stone, From Widgets to Digits at 159-62 (cited in note 1). For a generaldiscussion, see Gary Becker, The Economics of Discrimination (Chicago 1957).

37 See, for example, Waldinger and Lichter, How the Other Half Works at 141-54(cited in note 36); Saucedo, 67 Ohio St L J 961 (cited in note 19) (discussing employerpractices that encourage subservience from immigrant workers, and how employers cometo seek subservient workers); Jennifer Gordon, Transnational Labor Citizenship, 80 S CalL Rev 503, 547-51 (2007) (describing some of the reasons why employers strongly preferto hire immigrant workers: their inability to invoke full legal protections, their willing-ness to work for lower wages, and their reputation as more subservient and hard work-ing); Gordon and Lenhardt, 55 UCLA L Rev at 1175-1178 (cited in note 1) (contrastingemployers' negative stereotypes of African-American workers with positive ones of immi-grant workers and explaining how these hiring preferences can create racially homogene-ous niches in the workplace).

38 See Saucedo, 67 Ohio St L J at 978-79 (cited in note 19).

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low-wage workers and how employees-in this case, immigrantworkers-perform those identities to get and keep their jobs. 39

Jennifer Gordon and Robin Lenhardt have applied this per-formance identity conception of race in the immigrant workercontext. They argue that low-wage workers have some agency inhow they perform their identities, either downplaying negativestereotypes or exploiting positive stereotypes. 40 They performtheir identities as subservient workers, which arguably makethem desirable to low-wage employers. As Gordon and Lenhardtnote:

To the extent that new Latino immigrants can maintainemployers' view of them as more hardworking, compliant,and reliable than native-born workers, especially AfricanAmericans, they advance their position on the path to be-longing. This is both because they can push competitors tothe side and because their own sense of the dignity andvalue of their contributions is enhanced.41

Gordon and Lenhardt describe performance identity in theimmigrant worker context as exhibiting agency, albeit in aworkplace where workers have few choices. In this context,"agency" is less an expression of choice as it is an expression ofthe dynamic that the employer produces when it requires sub-servience and complacency for the job. To the extent there is achoice, it lies in the performance of the job, as Carbado and Gula-ti explain, as well as in the creation of narratives that instillmore value in the job than its remuneration, as we shall see inthe masculinities section of this essay.

The performance identity theory expands upon the structu-ralist theory's assumption about constrained choices by revealingjust how workers respond to their workplace limitations. It pro-vides insight into how workers adapt their behavior to cope withstereotypes or preconceptions of their abilities, skills, and aspira-tions in the workplace. 42 If an employee must work harder toovercome negative stereotypes, or to construct a workplace iden-tity that negates stereotypes, the employee is disproportionatelyaffected by the workplace culture that facilitates the stereotypes.Or, as Gordon and Lenhardt suggest, if an employee conforms to

39 See, for example, Gordon and Lenhardt, 55 UCLA L Rev at 1223 (cited in note 1).40 Id, citing Carbado and Gulati, 85 Cornell L Rev at 1264 (cited in note 5).41 Gordon and Lenhardt, 55 UCLA L Rev at 1224 (cited in note 1).42 Carbado and Gulati, 85 Cornell L Rev at 1276 (cited in note 5).

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the positive stereotypes (such as immigrants as hard workers)the costs of conforming may be psychic as well as physical. Itmay lead an individual worker to avoid complaining about work-ing conditions or safety because complaints are at odds with theimage of the hard-working, subservient employee that the em-ployer seeks. Identity performance, according to Carbado andGulati, produces costs that current anti-discrimination law doesnot capture. 43 It also undermines the ability of the employee whoperforms a workplace identity to seek redress through anti-discrimination law.44 Outsiders who perform an identity in orderto get hired will have difficulty bringing workplace discrimina-tion claims. This is so because performing an identity that rein-forces positive stereotypes also reinforces the notion that an em-ployer who hires minorities or women cannot be motivated bydiscriminatory reasons in other aspects of the workplace envi-ronment.45 This identity performance illustrates internalizedcosts of responding to constrained choices.

Determining the costs for immigrant workers who performthe prescribed ethnic and gender identities requires yet anothertheory of workplace dynamics. Masculinities provide an addi-tional nuanced perspective of how workers perform theirworkplace identity (subservience, for example) at the same timethat they act in ways that create a sense of group dignity andadded value to the job. The masculinities behaviors and narra-tives further isolate and marginalize those who refuse to acceptthe narratives as descriptive of their workplace condition.

C. Masculinities Theories: The Effects of Coping Mechanisms

Masculinities theories were developed in response to femin-ist theories in the 1970s and 1980s as a method of studying the

43 Carbado and Gulati call this the "capture problem." Id at 1294. The cost to per-forming an identity that conforms to a given workplace culture, such as a colorblind cul-ture, although difficult to estimate, should be included in the cost of discrimination, ac-cording to the authors.

44 Id at 1294-96. Carbado and Gulati argue that someone who adapts to the work-place culture essentially adopts it, and cannot then legitimately claim discrimination. Intheir example, a black lawyer accepts racial jokes and remarks, even making some him-self, to make people feel comfortable with him and to fit into a colorblind culture. He willhave trouble seeking redress in a failure to promote case because his behavior has ratifiedthe firm culture. In the immigrant worker context, the immigration debate once againenters the discourse. If the worker has a legally tenuous claim to a job and accepts theconditions requiring subservience, how can the worker now complain?

45 According to Carbado and Gulati, such a narrow application of anti-discriminationdoctrine forecloses the possibility that discrimination can be based on a person's racialconduct, rather than her phenotype. Id at 1297-98.

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narratives that maintain gender roles in society. Just as perfor-mance identity theory explores the social construction of raceand ethnicity, masculinities theories explore the construction ofgender in the workplace and throughout society. Masculinity re-fers to both individuals and to collective or organizational prac-tices. Individually, it refers to how successfully one conforms toexpectations of the masculine role. On an organizational level, itrefers to how an organization's structures and/or practices pre-serve male dominance within the organizational hierarchy. Soci-ologists Robin Ely and Deborah Meyerson have aptly describedthe interplay between individual and organizational levels as"the organizational structures and practices through which so-cietal images of masculinity are routinely translated into scriptsindividual men use to negotiate a masculine identity at work."46

Masculinities theories cover all aspects of society all over theworld. Here I concentrate on studies of workplace masculinities.Early masculinities theorists studied the development of mascu-linities narratives in the blue and white collar contexts. Theirresearch reveals the existence of an ever-evolving set of narra-tives that continuously conform to changes in workplace ar-rangements.4 7 These narratives serve a stabilizing function with-in the workforce to the extent that they allow for behavior thatwould be considered acceptable on the job, even as it is consi-dered unacceptable elsewhere. They may also serve the employ-er's desire for the efficiency that comes from a homogeneousworkforce, in this case, an immigrant male one.48 So, for exam-ple, a hypermasculine environment in construction is supportedby masculinities narratives that emphasize the masculine nature

46 Robin J. Ely and Deborah Meyerson, Unmasking Manly Men: The OrganizationalReconstruction of Men's Identity at 3 (Harvard Business School Working Paper, No. 07-054 2007), available at <http://mitsloan.mit.edu/osg/pdf/Ely.pdf> (last visited Jan 10,2009). See also Frank J. Barrett, The Organizational Construction of Hegemonic Mascu-linity: The Case of the U.S. Navy, 3 Gender, Work & Org 129, 132-41 (1996) (describinghow masculinities are constructed in the U.S. Navy through military training programs).

47 See, for example, Donald L. Coflinson, Managing the Shopfloor: Subjectivity, Mas-culinity and Workplace Culture (Walter de Gruyter 1992); David Collinson and JeffHearn, Men and Masculinities in Work, Organizations, and Management, in Michael S.Kimmel, Jeff Hearn, and R.W. Connell, eds, Handbook of Studies on Men & Masculinities289 (Sage 2005); Paul Willis, Shop Floor Culture, Masculinity and the Wage Form, inJohn Clarke, Chas Critcher, and Richard Johnson, eds, Working Class Culture 185 (Rout-ledge 1979).

48 Carbado and Gulati explain that the employer's desire for efficiency leads theemployer to seek homogeneity in performance, if not in phenotype. This type of discrimi-nation has the same effects as first generation discrimination, in that hiring practicescontinue to focus on an aspect of race-behavior, if not phenotype-in decisionmaking.Carbado and Gulati, 85 Cornell L Rev at 1262-1263 (cited in note 5).

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of the work, the amount of brute strength needed to carry it out,the humiliation of those who complain about its conditions, andthe hypersexualized atmosphere among co-workers. 49 This gen-dering of the work, in other words, reserves certain jobs for the"manly man" and keeps all others-regardless of sex-locked outof them.

How do masculinities narratives help accomplish the em-ployer's goal of an efficient, profit-maximizing, stable and relia-ble workforce? In much the same way as performance identitytheory reveals that the employer's search for homogeneity affectshow employees behave to get the job and stay in it, masculinitiestheories catalog the ways in which workers learn to conform togender specific roles in the workplace. An employer who estab-lishes workplace structures that allow for marginalization basedon race or gender (and in some cases, like Nancy's, immigrationstatus) also benefits from the development of the narratives thatadapt to those structures. Masculinities theorists, therefore, fo-cus both on structures and on how the narratives multiplythroughout the workplace. They seek to answer why workers,especially wage workers, take the jobs they do when the intrinsicvalue of the job is not reflected in its pay scale. Masculinitiesnarratives provide for workers the non-remunerative value-dignity, self-worth, pride-in wage labor. In this way, masculini-ties reify and solidify the hierarchical structures that the em-ployer has established because they supply the worker with thesense of purpose or worth that is not otherwise reflected in thelow-wage pay scale.

1. Managerial masculinities.

Although masculinities theories are not based on static oressentialized paradigms, and there are multiple masculinities,they can generally be classified for purposes of this essay intohegemonic and resistance categories, each affecting the genera-tion and regeneration of the other. Hegemonic masculinities arethose that provide the narratives for maintaining Anglo, male-dominated workplaces and hierarchies. 50 They are hegemonic inthe sense that they preserve hierarchical or power relations even

49 Kris Paap, Working Construction: Why Working-Class Men Put Themselves-And

the Labor Movement-In Harm's Way 133-35 (ILR 2006).50 R.W. Connell and James W. Messerschmidt, Hegemonic Masculinity, Rethinking

the Concept, 19 Gender & Socy 829 (2005).

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as they change according to the circumstances. 51 Through per-sonal stories they are reproduced and evolve into cultural narra-tives.

52

Managerial workplace structures are examples of those thatengender the hegemonic masculinities. 53 The gendering of lea-dership qualities as male is an example of a hegemonic masculin-ity narrative. So, for example, terms such as risk-taking, aggres-siveness, rational decisionmaking, problem-oriented, indepen-dence, and managerial responsibility are all used to describe thenatural born leader. 54 They are also the traits used to describethe hegemonic ideal of masculinity.5 5 This conflation of the lea-dership norm or the ideal worker norm and masculinity is at theheart of masculinities research. 56 Other forms of hegemonic mas-culinity include authoritarianism, paternalism, careerism, en-trepreneurialism, and informalism. 57 A paternalistic style, forexample, relies on trust and loyalty based on father figure dy-namics; an authoritarian style achieves goals through coercivepower and control; informalism requires relationship building inand outside the workplace; careerism is enacted through upwardmobility as a sign of masculinity; and entrepreneurialism focuseson traits such as competition and efficiency, both of which aregendered male traits.58 These management styles and their mas-culinities narratives engender responses that can further isolateminorities and women in the workplace. 59 The hegemonic mascu-

51 Patrica Ewick and Susan S. Silbey, Subversive Stories and Hegemonic Tales: To-ward a Sociology of Narrative, 29 Law & Socy Rev 197, 212 (1995) (describing the role ofnarrative in maintaining cultural ideologies).

52 Id.53 See, for example, Connell and Messerschmidt, 19 Gender & Socy at 834 (cited in

note 50); Attila Bruni, Silvia Gherardi and Barbara Poggio, Gender and Entrepreneur-ship: An Ethnographical Approach 55-58 (Routledge 2005) (describing the '"male ethic' ofrationality in organizations" which asserts that organizational needs can be satisfied onlyby the analytical and leadership abilities of highly educated men, and that these mana-gerial practices and workplace dynamics both challenge and perpetuate this managerialmasculinity); Debra E. Meyerson and Deborah M. Kolb, Moving out of the "Armchair"Developing a Framework to Bridge the Gap between Feminist Theory and Practice, 7 Org553 (2000); Barrett, 3 Gender, Work & Org at 132-41 (cited in note 46).

54 Bruni, et al, Gender and Entrepreneurship at 55-57 (cited in note 53).55 For a general discussion, see R. W. Connell, Masculinities (California 1995).56 Robin J. Ely and Debra E. Meyerson, Advancing Gender Equity in Organizations:

The Challenge and Importance of Maintaining a Gender Narrative, 7 Org 589, 599-600(2000).

57 David Collinson and Jeff Hearn, Naming Men as Men: Implications for Work, Or-ganization and Management, 1 Gender, Work and Org 2, 13-16 (1994) (explaining howthe several masculinities both affect and are reproduced through managerial practices).

58 Id; McGinley, 83 Or L Rev at 381-82 (cited in note 6).

59 McGinley, 83 Or L Rev at 382-83 (cited in note 6).

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linities are important in this discussion because they illustratethe management structures to which immigrant workers areresponding through their own forms of resistance masculinities.

2. Working class and resistance masculinities.

Resistance masculinities are best described as those res-ponding to, and at the same time reproducing, hegemonic mascu-linities narratives. In the workplace, they are the methods bywhich subordinates find value or dignity in the non-remunerative aspects of their positions.60 These masculinitiesnarratives allow subordinates to navigate their organizationalposition and situation in the workplace. 61 Theorists studying bluecollar masculinities frame their studies through the lens of resis-tance masculinities. They argue that the traditional masculini-ties narratives within these groups of workers focus on and valuethe differences between the working class and managerialclasses of workers by diminishing the masculine nature of mana-gerial jobs and inflating the masculine qualities of blue-collarjobs. 62 For example sociologist Paul Willis's working class mascu-linities study found that in the manufacturing environment,workers in dead-end jobs recreated their experiences, givingthem positive, transformative meaning and a way to toleratetheir work lives. Willis observed that the workers developed aculture that included "the sheer mental and physical bravery ofsurviving in hostile conditions, and doing difficult work on in-tractable materials."63 The narrative of the tough, brave malehelps workers who fit the mold develop self-esteem, as well as asense of control over difficult, sometimes unbearable, workingconditions. Willis terms this the "mythology of the masculinereputation."64 It is the way a difficult work environment is trans-

60 See, for example, Willis, Shop Floor Culture at 193 (cited in note 47); Collinson,

Managing the Shopfloor at 180 (cited in note 47) (discussing how manual workers withlimited mobility secure "a vicarious satisfaction by facilitating the upward mobility oftheir children"); Paap, Working Construction at 135-36 (cited in note 49) (discussing howconstruction workers derive a sense of class status from their "pigness" that is characte-rized by a "raw masculinity that is seen as 'real"').

61 Barrett, 3 Gender, Work & Org at 131 (cited in note 46).62 Willis, Shop Floor Culture at 193 (cited in note 47); David L. Collinson, Engineer-

ing Humor: Masculinity, Joking and Conflict in Shop-Floor Relations, 9 Org Studies 181,194 (1988).

63 Willis, Shop Floor Culture at 189 (cited in note 47).64 Id at 189, 196 ("Perhaps the most prosaic but actually startling element of shop-

floor culture is the articulation of manual labour power-as it is concretely practiced-withassertive male gender definitions. There is an infusion of assertive masculine style and

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formed into a bearable one by giving it significance aside fromthat derived from the work itself,65 and by instilling it with ne-cessities for manly qualities to succeed. 66

Willis's study concluded that workers express their place inthe work hierarchy through a series of masculinities that expressthemselves in forms such as humor and ridiculing language inthe workplace; control through the group; distrust of theory; andotherwise negating the work of others such as managers, profes-sionals, women, and minorities. 67 In short, the studies of bluecollar masculinities demonstrate how the masculinities help bluecollar workers explain or make sense of their subordinated lives.

Similar masculinities narratives exist in the constructioncontext. Sociologist Kris Paap recently studied masculinities ofAnglo blue collar construction workers after spending two yearsworking on a construction site in the Midwest.68 Paap identifiedseveral masculinities operating to support gender and race/ethnicity hierarchies. These masculinities provided a status floorbelow which Anglo males cannot fall. Paap's description of the"men are pigs" narrative is especially illuminating to narrativesthat have been developed in the brown-collar context.

"Men are pigs" describes hypermasculine, animalistic beha-vior on construction sites. Examples of hypermasculine behaviorinclude excessive competitiveness, aggressiveness, and overthypersexual behavior. According to the narrative, because menare pigs, they can be asked to and will perform all types of toughjobs. 69 They will also be excused for crude, unrefined, rude beha-

manning into the primitive, mythologized elements of confrontation with 'the task."').

65 Id at 196 ("Manual labour is suffused with masculine qualities.... Whatever the

specific problems of the difficult task, they are always essentially masculine problems,requiring masculine capacities to deal with them. We may say that where the principle ofgeneral abstract labour has emptied work of significance from the inside, a transformedpatriarchy has filled it with significance from the outside.").

66 Id ("Difficult, uncomfortable or dangerous conditions are seen, not for themselves,but for their appropriateness to a masculine readiness and hardness. They are unders-tood more through the toughness required to survive them, than through the nature ofthe imposition that asks them to be faced in the first place.").

67 Willis, Shop Floor Culture at 196 (cited in note 47); Collinson, Managing the Shop-floor 141-42 (cited in note 47) (explaining how one shopfloor worker, George, "exagge-rates his personal power and competence. [George and another worker] resist by with-holding information and production from those in authority"); Collinson, EngineeringHumor at 194 (cited in note 62).

68 Paap, Working Construction (cited in note 49).69 Id at 135 (describing how "pigness" is a term that not only distinguishes construc-

tion workers from their white collar counterparts, but also validates their strengths andability "to get the job done," noting that "[a construction worker] might not know whatsort of wine goes best with salmon, but he knows what grade of motor oil is needed foreach piece of workplace machinery").

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vior that is otherwise inappropriate outside the blue collarworkplace. 70

The "pigness" masculinity gives rise to a "structure of nocomplaints" among the workers, who individually may fear ridi-cule or ostracism if they cannot tolerate the tough conditions onthe job.71 The structure of no complaints preserves a set of beha-vioral responses to working conditions, such as safety, undesira-ble job tasks and even harassment on the job. Workers are ex-pected to put up with harsh conditions, and even harassment,because the reasonable person in an environment of "pigs" woulddo the same. Paap describes this culture as a structure in and ofitself, supporting workplace norms that bar women from con-struction work:

By imposing a Structure of No Complaints upon the con-struction workforce ... pigness is able to protect the jobsfor people who can "handle" the environment-most oftenand most likely, people who look like or are related to themen working in the jobs already.7 2

Anyone who complains about the abuse, in other words, isnot strong enough or manly enough to do the job.

"Pigness" in the construction context is the method by whichworking class men value themselves and their otherwise under-valued jobs, just as the workers did in Willis's manufacturingindustry study. Describing themselves as animals, or pigs, allowsmale construction workers to define themselves at the same timeas less sophisticated and more masculine than their middle classcolleagues.73 In other words, "the identity of raw masculinity andreal manhood is clearly a nonmonetary job benefit that the mencan cash in on when they claim that they are 'pigs' or 'ani-mals."' 74 As such, the animal nature of pigness allows construc-tion workers to define themselves as "natural born workers" who

70 Id at 134 ("[Pligness is put forth simultaneously as a form of authentic expression

and also a 'license' to use racial and ethnic slurs, to make generalizations about who canand cannot do the work, and to display overt hostility and animosity toward others as thepigs deem appropriate.").

71 Id at 148.72 Paap, Working Construction at 148 (cited in note 49).73 Id at 135 (for example, "to call a man a pig is to suggest that he might not know

what fork is to be used for salad but that he knows which drill bit is used for differentforms of masonry under different and varying conditions").

74 Id at 136.

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are made to perform work that is physical, tiring, dangerous, andmanly.

7 5

The pigness narrative relies on the corollary myth that indi-viduals choose their jobs and career paths and that people whocan't tolerate the pigness in the environment would naturallychoose to be elsewhere. 76 The narrative sustains the dynamicthat enables employers to hold the job open precisely for theworker who can handle it. Once the job is masculinized throughthe narrative, the narrative helps mask the discrimination un-derlying the structures that allow it to flourish. As Paap notes:

[P]igness is able to do informally what exclusionary lawsand rules, discriminatory practices, and systematic vi-olence did for many years but are no longer formally al-lowed to do. It is not that women ... aren't formally andlegally welcomed, it is simply that the men who chose tobe construction workers are "pigs" and that under theright conditions most women will choose to do somethingelse somewhere else. Thus pigness serves companies as anoccupational gatekeeping mechanism for women ... with-out their having to hire or fire explicitly on these lines. 77

In the legal literature, masculinities theories have been in-voked to inform discussion about just how masculinities narra-tives further exclude, marginalize, and isolate those who do notconform. As with structuralist and identity performance theories,masculinities legal theorists suggest that to the extent the em-ployer benefits from or institutionalizes practices that encouragethe development of masculinities narratives the employer shouldbe held responsible for discrimination. 78 Ann McGinley'sgroundbreaking piece argues that masculinities are themselvesthe structural barriers to advancement in the workplace.7 9 Theyencompass norms and workplace cultures that attribute gender

75 Id at 138,

76 Paap, Working Construction at 144 (cited in note 49). ("[T]he self-selection pres-

sures involved in who enters (and leaves) the workforce would appear to support, at leaston the surface, the biological argument about the workers' true nature. It appears thatthese men choose to become construction workers because they 'are' that way, rather thanacknowledging that the rules and expectations of the worksite create pigs, even wherethere might have been none.").

77 Id at 148. This masculinity, while seeming to create solidarity among white maleworkers, is, in many ways, counterproductive to solidarity in which workers are definedby their class status in relation to the owners of capital.

78 See, for example, McGinley, 83 Or L Rev at 378-427 (cited in note 6).79 Id at 364-65.

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to certain jobs and value them accordingly. The structural di-mensions of masculinities operate through narratives or storiesthat reinforce both the workplace culture and its hierarchies.Masculinities and their narratives, it turns out, exist even whenthe work is completely segregated by race or ethnicity, as it is inthe immigrant construction workplace. Masculinities theoriescan help willing employers understand how masculinities narra-tives affect workplace dynamics and how restructured dynamicscan create a more inclusive and humane workplace.

III. REINTERPRETING NANCY'S STORY

Let us now analyze Nancy's story through the lens of thethree discrimination theories. Nancy's story helps us make theconnection between the development of the brown collarworkplace and its discriminatory dynamics. Structuralist theorygives us the overall framework for how we should be looking atthe development of brown collar workplaces. The structuralisttheory raises the question "why should the employer bear thecost of what is really a societal problem of bias?" The perfor-mance identity and masculinities theories provide informationabout just how a worker's choices are constrained by workplacestructures and how the worker responds. It is in the deconstruc-tion of Nancy's story that we can see the intersection of thestructuralist, performance identity, and masculinities theories.We can also see them operating to reveal the type of discrimina-tion that current Title VII theories (disparate impact and dispa-rate treatment) cannot so readily identify.

A. Nancy's Job through the Lens of the Three Theories

Nancy has been channeled into low-level, dead-end jobswithin residential construction, even though she took the job onthe advice of friends who said she would earn more in construc-tion than in the traditional Las Vegas service jobs available toher. While she earns marginally more than in the service econo-my, Nancy perceives little or no advancement opportunity inconstruction. This is in part, Nancy believes, because neither herco-workers nor her supervisors believe she can do the work. Thework is structured in such a way that she needs the support andsponsorship of her co-workers in order to advance. It is alsostructured in such a way that the work is deskilled and dividedup into several distinct jobs, and the employers emphasize effi-ciency, productivity, and profit. This job structure is reinforced

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through a system of piece rate wages and an independent con-tractor work arrangement. The structuralist approach wouldpoint to some of these structures as symptomatic of a workplaceenvironment that creates discriminatory dynamics, in decision-making or otherwise, in the workplace. The piece rate systemand the independent contractor arrangement allow subjectivecriteria such as biases about who can do the work, to enter intodecisionmaking. Those biases, in turn, may be influenced bynarratives in and outside the workplace about the ethnicity andthe gender of the ideal worker in the low-wage immigrant workercontext. The uncertain and unstable legal status of the workersalso influences the biases of employers who may feel less loyaltyto a workforce that society disdains as not belonging. They cer-tainly influence the behavior of workers, who act the part of goodand subservient workers, in part because of their uncertain legalstatus. The structuralist theory posits that structures that allowthese biases to enter decisionmaking processes about who getshired and why should be dismantled as discriminatory.

The performance identity and masculinities theories providefurther nuance to the general structuralist approach that helpsus make a more direct connection between employer practicesand employee behavior. Performance identity theory in the im-migrant worker context says that a worker will conform his iden-tity to meet the expectations of hard work, subservience, andcomplacency that an employer has of an immigrant labor force. Aworker's decision to conform or to perform his identity incurscosts. At the very least, there are psychological costs in doingdeskilled work that is rote, difficult, and meaningless. There arealso opportunity costs in performing such work because it doesnot involve the accumulation of skills that will one day lead toknowledge of all aspects of the trade. A worker also incurs men-tal or emotional costs in the inability to advance in a workplacestructure that is so segmented and segregated and in the inabili-ty to complain about it.

How does such a worker maintain workplace satisfaction inthis type of environment? In other words, how does she toleratethe work without complaint? As Nancy's story suggests, not eve-ryone can put up with the employer's treatment of immigrants asa group of workers who have little or no choice but to take thejobs offered them. Not everyone, in other words, can perform ac-cording to the positive stereotypes of immigrant workers. Thosewho do may be overvaluing their work with the help of masculin-ities narratives. Nancy was not one of those who tolerated the

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attitude and she was ultimately fired for her willingness to com-plain.

Masculinities theories help us understand the nonmonetaryvalue of staying in low-wage, low-status, and segregated jobs re-legated for the most part to immigrants, at least for those whobuy into them. Masculinities narratives in the immigrant workercontext emphasize and overvalue the role that immigrant work-ers play in taking jobs that no one else will take. In response tothe deskilling of the job, the lower wage, and the increased prod-uctivity required in the job, some men produce a self-image of therugged, tough, hypermasculine, manly man, who can do the workeven though nobody else can. In other words, they accept theirrole as "pigs," as sociologist Paap suggests of blue collar workers.Men who perform without complaint assume the attributes of theidealized worker. Those who do not do the work, whether be-cause they cannot, will not, or are not allowed to, are not consi-dered man enough. This goes for native-born workers as well aswomen. The work itself-industrial painting, for example-assumes the characteristics of men's work and men structuretheir narrative around it. Over and over again, Nancy and herfemale colleagues were told publicly they could not succeed atindustrial painting, or any of the higher paying jobs on site, eventhough privately some male colleagues offered some tips and in-struction. When she sought changes to the work environment,she was characterized as seeking accommodations rather thanequal treatment.

B. Workplace Safety Conditions and Dynamics through theLens of the Three Theories

Take safety as another example. The employer posts signsall over the place warning employees to be safe. Each employeemust sign a safety disclaimer upon hiring, which states that theemployee has read and understands the safety rules of the com-pany (which are typically written in English). The employeessign the forms as a matter of course. This is just another of theseveral documents that the employer requires before the em-ployee can start the job. Recall that the employer has structuredthe job's wage on a piece rate system. Such a system incentivizesfast production schedules and superficial attention to any otherworkplace priorities, since one gets paid only for the number ofpieces completed. Because a living wage requires speed, such asystem also disincentivizes taking safety measures or paying at-tention to OSHA rules on the job. The structuralist approach

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might focus on the ways in which the piece rate wage system al-lows employers to make choices based on bias, based on ethnicityor race-who are the hardest-working, most diligent, most sub-servient, and most compliant workers-and then based on gend-er-who can work the fastest in the most dangerous conditions?Performance identity theory helps us analyze how immigrantmale workers' responses to employers' piece rate wage structureperpetuate employers' decisions based on group bias. Employersexpress preferences in behavioral terms such as productivity,hard work, flexibility, and compliance or willingness to do thework. In other words, employers prefer immigrants because im-migrant status is a proxy for the subservient behaviors they seekin workers. In response, many immigrant workers behave or per-form a subservient identity in order to obtain and preserve theirjobs. Based on this set of dynamics employers continue to useimmigration status as a proxy for desired workers, who are ulti-mately locked into low-wage jobs. Masculinities theories are im-portant in analyzing differential responses to the piece rate sys-tem. Nancy's response was to complain about work conditionsand to claim they violated workplace statutes, and then try to gether co-workers to join her in a collective response. The men weinterviewed, for the most part, took the dangers as a given andbuilt a masculinities narrative around them. They accepted thedangers as part of the job, were proud that that they could takeon the dangers like men, saw complaints as a form of weakness,and took pride in the fact that these jobs were available only toimmigrant men (i.e., that these were jobs only immigrants willtake). Their masculinities narrative legitimated a story that por-trayed them as manly and dignified for taking on the work. Nan-cy's response, which challenged the dominant narrative, wastreated as aberrant behavior, although natural for a woman. Thecompany retaliated against her with impunity, and she wasshunned in her attempts to organize her fellow workers into acollective response.

C. Nancy's Status in the Workplace through the Lens of theThree Theories

Nancy's immigrant status and gender have unique effects onher workplace status, as the three theories illustrate. In the im-migrant worker construction context, the worker's role has beenmasculinized as well as racialized. It has been masculinized tothe extent that hard work, flexibility (in the sense of willingnessto do the tough work), competitiveness and reliability are, or

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have traditionally been, markers of workplace success for males.Immigration status factors into this masculinized role. The moreuncertain the workers' immigration status, the more likely it isthat the majority of workers will hew to a narrative that they areneeded for the type of tough work conditions they are willing toendure. In other words, undocumented workers want to make itworthwhile for an employer to take the chance to hire them evenwithout documentation. Their uncertain status means they haveto compensate for their lack of documentation in other ways.This overcompensation distorts the employer-employee relation-ship, arguably more acutely than in other settings.

The immigrant worker's role is racialized to the extent thatemployers behave as if native-born workers will not perform res-idential construction jobs by hiring immigrants. Immigrant sta-tus factors as well into the racialization of the constructionworkplace.8 0 The result is that the ideal worker for the residen-tial construction job today is an immigrant Latino male. Thosewho refuse to conform to the identity and performance cues ex-pected of the Latino immigrant male are less likely to "fit in" tothe workplace culture that the employer has fostered. This is thedilemma that Nancy and her female counterparts face. Does she"act like the ideal immigrant man" in order to maintain stableco-worker relationships at the cost of safety and better workingconditions? Does she fight for better working conditions and riskisolation and marginalization because of her behavior, whichruns against the ideal immigrant Latino male image of hardwork, flexibility, and reliability? Or does she play the role of im-migrant female victim, viewed as seeking accommodation for herlack of abilities even as she seeks equal treatment, as her em-ployers want to characterize her? The first and second characte-rizations-to which performance identity and masculinities theo-ries respond-highlight the costs to immigrant women of theidentities employers expect of them. The third characterizationelicits a structuralist response, and highlights the role ofworkplace structures in creating an obvious contradiction be-

80 In the southern Nevada construction context we studied, the majority of the immi-

grant population in Nevada and in Las Vegas is Mexican-born. Of the 67 percent increasein the immigrant population between 2000 and 2007, 47 percent has been estimated asforeign born. Of that number, 78 percent was estimated as Mexican born. StatisticalPortrait of the Foreign Born Population in the United States, Pew Hispanic Center, 2007,available at <http://pewhispanic.org/factsheets/factsheet.php?FactsheetID=45> (lastvisited Mar 5. 2009).

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tween the immigrant woman who lacks skills and the immigrantwoman who seeks workplace equality.

These are just some examples of how masculinities and per-formance identity theories help the structuralist approach re-spond more effectively to the argument that employers shouldnot be held responsible for the bias that exists in American socie-ty. The examples described here illustrate that Nancy's com-plaints about dangerous work and about limited transfer oppor-tunities are not simply seeking accommodation for her weak-nesses. The lens of performance identity and masculinities helpus see the dynamic of discrimination at play. To the extent thatthe employer benefits from the way that workers respond to itsstructures and help maintain those structures the employershould be held liable for workplace discrimination under anti-discrimination law. Furthermore, to the extent the employerbenefits from co-worker behaviors that disadvantage or discrimi-nate against women, the employer should be held liable.

So, in general, if the employer encourages cohesion or homo-geneity among like employees-and this applies whether thoseemployees are in-group members or out-group members, as wefind in the immigrant worker context-those employees can bothbuild narratives around their likeness and shun with impunitythose who do not fit the narratives or the stereotype of the natu-rally good worker for the job. To the extent that discrimination orstereotyping motivates such characterizations it should be cap-tured by the anti-discrimination frameworks. The structures thatcreate such "homogeneity" cannot be explained away as simplythe problem of exploitation in the low-wage workplace.

IV. RESOLVING NANCY'S DILEMMA: How AN EMPLOYER CAN USETHE INTERSECTION OF THE THEORIES TO EFFECTANTI-DISCRIMINATORY DECISIONMAKING IN THE

LOW-WAGE WORKPLACE

The three theories of discrimination demonstrate how em-ployer structures and practices produce workplace dynamics,how gender plays a role in workers' responses to those structuresand dynamics, and how the masculinities narratives currentlyestablished in the industry continue to isolate and marginalizethose who eschew masculinities. Sociologists have posited, how-ever, that organizational changes can disrupt the existing struc-tures and their narratives, allowing men and women to bothperceive themselves differently and work together to reshape theworkplace dynamic that creates the dominant masculinities

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narrative. Organizational theorists Ely and Myerson have devel-oped a theory for how organizations can change their processesto emphasize how alternative identities are important to the lifeof the organization. Their theory arises out of a study of an off-shore oil platform operation, which is stereotypically a hyper-masculine work environment. They found that the employer'semphasis on safety and performance changed the way that menenacted masculinity in the workplace.81 The emphasis on safetychanged traditional masculinities behavior such that "oil-rigworkers who had used machismo to prove their competence nowhad a more nuanced sense of their personal capacities, particu-larly a capacity for vulnerability, the antithesis of the traditionalmasculine ideal."' 2 Ely and Meyerson concluded in their studythat masculinities were indeed mutable, suggesting thatworkplaces can "disrupt" negative tendencies by "changingnorms and work practices to the benefit of individual workersand the organization as a whole."8 3

Ely and Meyerson also demonstrated that the problems withmasculinities was not so much masculine behavior as it wasmen's attempts to prove themselves and their worth throughsuch behavior. This focus on the masculine nature of the jobforced workers to act defensively for their own selves, ratherthan proactively to meet the company's overall goals. The studyfound that a company-wide initiative focusing on safety created aset of norms and practices that "released men from the perfor-mance of masculinity traditionally associated with dangerouswork."8 4 Specifically, practices that emphasized the importanceof working together to meet broader goals, driven by larger con-cerns, such as a team or social ideal, enabled workers to releaseconcerns over self-image for the broader organizational good.These practices, in turn, resulted in more positive relationalprocesses.8 5 In other words, masculinities performed in service ofwork-related goals, rather than in service of individual or collec-tive self-worth operate to benefit those within the workplacemore than the defensive use of masculinities to construct the selfin the workplace.8 6 Ely and Meyerson concluded, "organizational

81 Ely and Meyerson, Unmasking Manly Men at 5 (cited in note 46).82 Id.

83 Id.

84 Id at 18.

85 Ely and Meyerson, Unmasking Manly Men at 18 (cited in note 46).86 Id. at 28.

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features, such as policies, practices, and norms, were key to thisdisruption by creating conditions that shifted men's energiesaway from the goal of proving their masculinity and instead sup-port their pursuit of goals larger than themselves."87 They identi-fied several organizational practices that allowed workers to setaside the need to rely on masculinities for self-worth or for non-monetary value of the job. Giving meaning to their jobs allowedthe workers to tap into alternative identities outside of the mas-culinities norms. Once safety became a real and stated priorityover production and profit, in other words, the men felt secure inletting go of masculinities narratives that encouraged individual-ism, risk-taking, aggressiveness, and danger.88 Organizationalpractices that signaled to workers that they were part of a largercommunity communicated their importance within the organiza-tion. Recognizing workers for positive contributions, no matterhow small, helped workers change their masculine behaviors.Practices that communicated the company's preference for work-ers who learned from mistakes and worked well in teams tendedto decouple masculinities narratives from notions of compe-tence.8 9 In sum, Ely and Meyerson noted that "by redefining themeaning of masculinity and supporting a generative rather thandefensive process of masculine identity construction, these plat-forms may have avoided costs other dangerous workplaces payfor men's masculinity strivings."90

More importantly, Ely and Meyerson connected masculini-ties quite explicitly to workplace structures and practices thatemployers themselves can change to transform workplace beha-viors. They articulate a theory of masculinities that provide or-ganizations with the opportunity for change. The model "expandsthe existing perspective on masculinity as an identity largelyshaped by society's idealized images of masculinity by depictingorganizational conditions as a moderating influence on the rela-tionship between society's gender ideology and the relationalprocesses through which men construct masculine identities."91

Ely and Meyerson articulate the connection between structural-ists, performance identity theorists, and masculinities theoristsclearly:

87 Id.

88 See id.

89 Ely and Meyerson, Unmasking Manly Men at 34-5 (cited in note 46).90 Id at 36-37.91 Id at 37.

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A society's traditional gender ideology orients men to thegoal of validating an idealized masculine image, but orga-nizational features can create conditions that shift men'senergies away from that goal and redirect them towardthe pursuit of goals larger than themselves. This shift inorientation supports a set of relational processes in whichmen reconstruct their masculine identities. 92

Ely and Meyerson's prescriptions include the development ofworkplace practices and processes that move workplace goalstoward a focus on "a transformation of the process of identityconstruction from one anchored in self-validation goals to oneanchored in the real demands of their work."93 This articulationof the workplace transformational change coincides with thestructuralists' vision of the power of organizations to change em-ployee behavior. As Vicki Schultz, a structuralist legal scholar,notes, "[i]f people's lives can be constrained in negative ways bytheir conception of the occupational roles, they can also be re-shaped along more empowering lines by changing work or theway it is structured or understood."94 Schultz's example of wom-en entering the skilled trades in the 1970s only to get stuck indead-end jobs, shows that one's relationship to work depends onthe opportunities available to an employee. Increased opportuni-ties for lines and types of work increase self-esteem and deepen aworker's commitment to the job as other than a wage vehicle.95

How does the theory work in the immigrant context? InNancy's example the rewards go to those who played the rolesemployers expect of immigrant workers-subservient, compliant,working long hours, and demonstrating loyalty to the company,risk-taking, and accepting of personal responsibility for risk-taking. All of these qualities are typically ascribed to males inthis society. And in construction today, they are ascribed to im-migrant men. Anyone who refuses or fails to conform to thesequalities is isolated, marginalized, or punished, as was Nancy inthis case.

Ely and Meyerson concluded from a separate study of genderdynamics in a manufacturing plant that employers who desiredgender equity in the workplace had to move beyond their precon-

92 Id.

93 Ely and Meyerson, Unmasking Manly Men at 40 (cited in note 46).94 Schultz, 100 Colum L Rev at 1891 (cited in note 23).95 See id at 1891-92.

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ceptions of who could do the work.96 They also must focus on theorganizational structures and practices that govern how thework is done. Deconstructing the way that work privileges menand how men sustain that privilege will reveal the areas withinthe work environment where seemingly neutral practices andpolicies have a gendered effect. One such arena is the deskillingof jobs, now the norm in low-wage occupations.97 Deskilling hasthe effect of inviting masculinities narratives that overcompen-sate for the decreased satisfaction, the contingent nature, theincreased repetitiveness, or the decreased wages, all of which arecharacteristics of deskilled occupations. One possible set ofchanges that employers can consider is to reduce the amount ofdeskilling taking place in occupations within low-wage workplac-es. It would involve creating more worth, and less rigidity intothe tasks assigned to a particular job. It would likely also requirede-emphasizing productivity and profit, as was illustrated in theoil rig platform case.

Ely and Meyerson point to the development of narrativesthat disrupt the assumptions behind current narratives. Theprevailing assumption in gender relations is that we are allsimply individuals, "without gender identities, occupying thesame cultural, historical, material, and political positions, sub-ject to and participating in the same neutral organizationalprocesses and impartial interpersonal interactions. These as-sumptions are therefore uncontestable."98 Under the prevailingassumption, women, immigrants, and low-wage workers are sole-ly responsible for their failures, leaving employers and theirstructures unaccountable. 99

One possible disruptive narrative, which challenges the pre-vailing assumption, revolves around workers leveraging theircollective bargaining or organizing strength. Nancy chose to pur-sue this narrative in the hope that it would disrupt the indivi-dualist masculinities narrative prevalent in her workplace. Thisnarrative emphasizes connections among workers, as well asconnections between workers and employers. Employer practicesthat may contribute to this disruptive narrative include an em-phasis on safety, the importance of community-building, and the

96 Ely and Meyerson, 7 Org at 593 (cited in note 56).97 See Schultz, 100 Colum L Rev at 1921 (cited in note 23); Stone, From Widgets to

Digits at 63, 92 (cited in note 1). See also Katherine Stone, The Origins of Job Structuresin the Steel Industry, 6 Rev Radical Pol Econ 113, 124-27 (1974).

98 Ely and Meyerson, 7 Org at 604 (cited in note 56).99 SPP id

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importance of stating a company's mission more broadly thanshort-term production and profit maximization. 100 Nancy's narra-tive, in the immigrant context, is different from the traditionalunion organizing narrative in that it includes organizing for therights of immigrants outside the workplace as well inside. Be-cause of its importance to both workplace and societal position-ing, her approach may appeal across gender, class, and race.Stronger enforcement of workplace laws will also help Nancy'sorganizing narrative overcome the deeply entrenched genderedapproaches to the immigrant construction industry.

Another example of a disruptive practice involves the de-coupling of masculinity from the requirements of the job. To theextent that the employer incentivizes workplace practices thatdistance masculinities behaviors from success on the job, allworkers will feel more ownership and a stake in the success ofthe employer's business. In the oil rig scenario, for example, anemphasis on a knowledge culture that focused on reflecting onthe relative successes or failures of implementing different sys-tems, decreased workers' reliance on masculinities and defensivebehaviors. 101 This change to knowledge and reflection from pro-duction and individualism fostered a more collaborative and in-clusive environment for all workers.

V. CONCLUSION

Nancy's story illustrates the fact that multidimensional le-vels of discrimination in the immigrant workplace require multi-level analysis. The employer structures present in workplaceslike residential construction in Las Vegas are not simply exploit-ative or subordinating practices, as traditional views of low-wageworkplaces might suggest. Rather, the three theories of discrim-ination discussed here provide an apt model for illustrating howemployer practices can foster discriminatory conditions. Nancy'simmigrant workplace provides us with precisely the focus at theintersection of the structuralist, performance identity and mas-culinities approaches to discrimination that we need to under-stand substandard conditions in low-wage workplaces as morethan simply the natural order of things.

100 Ely and Meyerson Unmasking Manly Men (cited in note 46) (identifying this "con-

nective purpose" approach as helpful in disrupting masculinities behaviors in the oil rigsetting).

101 Id at 40-42.

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Documents

The Three Theories of Discrimination in the Brown Collar