Nondisclosure agreements are common in the settlement of legal disputes but are controversial as they suppress information that could prevent harm to others. But until the 2017 #MeToo movement, there had been little legislative effort to prohibit the practice in any context, and consequently no evidence on whether public disclosure of harms would be effective as a deterrent to wrongdoing. Following the #MeToo movement, more than 10 states enacted bans on NDAs in the settlement of employment discrimination claims. In addition to reputational harm to the employer, public airing of misconduct was expected to encourage other victims to come forward, which would have direct financial costs to the employer through litigation costs as well as in possible damages payments. We leverage variation in state legislation in timing and coverage to test the effects of these bans on employment discrimination court filings and outcomes in federal court, the most public forum for exposing acts as illegal. Supporting the prediction that bans could have a deterrent effect in the long term, we find an initial increase in filings, a decrease in settlement after filing, and an increase in the probability that the plaintiff prevails for cases without harassment allegations.

Internal investigations into allegations of workplace misconduct are undertaken on a confidential basis. But confidentiality cannot be assured. Investigated employees may be revealed by the investigation, including by word of mouth and by disclosure requirements to future potential employers. Based on an experiment fielded on a large nationally representative sample, this study provides the first evidence of direct employment harm to an employee investigated for workplace misconduct or sexual harassment. Subjects express considerable opposition to a callback of applicants who were investigated for workplace misconduct, even when the investigation did not find misconduct. The findings add to the evidence documenting that any association with stigma harms employment prospects.

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Using data from the Current Populations Survey 2015-2024 matched to skin color data in the New Immigrant Survey, this article shows that immigrants from countries with darker skin color face a substantial earnings penalty. The penalty is similar to that found using 2003 data on individual immigrants. Controls for extensive labor market characteristics and race and ethnicity does not eliminate the negative effect of darker skin tone on wages. Color discrimination lawsuits in light of the addition of a Middle Eastern and North African (MENA) reporting category for US government surveys may become more viable.

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Studies typically find that lawyers have high job satisfaction and that women are not less satisfied than are men. But racial differences as well as gender differences by race or ethnicity in satisfaction may be masked because most lawyers identify as racially White. To examine whether job satisfaction differs by race and whether gender and race/ethnicity have an intersectional relation to job satisfaction, I use data on nearly 13,000 law graduates drawn from six waves of the National Survey of College Graduates (NSCG) conducted between 2003 and 2019. The NSCG uniquely provides a large enough sample to examine intersectionality in job satisfaction of law graduates as well as to compare satisfaction of lawyers to those employed in other occupations. Job satisfaction is strikingly low among Black women and Asian women law graduates. Asian women lawyers have satisfaction similar to White men lawyers but substantially lower satisfaction if not employed as a lawyer. Black women have substantially lower satisfaction in either employment situation. The lower satisfaction of Asian and Black women law graduates is not due to differences in personal characteristics, family status or background, job characteristics, or differences in values.

Title IX greatly expanded adolescent females' participation in athletic activities, which may have led to health benefits that extend into later life. Previous research has not explored whether health benefits arising from Title IX differ by race or ethnicity and has not examined women at older ages when health problems become more evident. This article examines the effect of Title IX on racial and ethnicity disparities in health outcomes by considering women aged 42-52 years. White women in these age groups exhibit declines in their self-assessed health status and increases in many health-related ailments, consistent with other evidence on temporal trends in health for women in this age range. Compared to white women, both Black and Hispanic women report the opposite pattern, as there is greater improvement in the post-Title IX period in overall health status. Black and Hispanic women also exhibit greater declines relative to white women in smoking rates post-Title IX, which should confer a broad range of risk reductions. The more favorable impact of Title IX on Black and Hispanic women indicates that investments in women's sports may enhance both equity and efficiency.

Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law’s goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI’s major problem. The EPLI market, for the most part, functions in a way that poses little to no threat to the goals of employment law. However, one specific characteristic of EPLI stands out as particularly concerning. Our review of market sources indicates that EPLI contracts, as currently written, often do not exclude intentional actions of any sort. As such, EPLI policies generally cover employment law claims regardless of whether upper management (i.e., those responsible for decision making on behalf of the business) played a role in the prohibited employment action, either from the outset or as part of a cover-up. This current EPLI market norm explains why insurers agreed to pay out The Weinstein Company’s (TWC) and codefendants’ liability for Harvey Weinstein’s pervasive sexual harassment, even though Weinstein’s behavior was widely known within TWC. We argue that this outcome is troubling from the standpoint of ex post moral hazard. Insuring liability for this type of behavior incentivizes a business’s decision-makers to attempt to cover up instances of discrimination, harassment, retaliation, and wrongful termination, rather than addressing them head-on. Despite this significant concern, we argue that the EPLI market can enhance employment law’s goals of deterring bad behavior and compensating victims but only if properly structured. Specifically, we suggest that the extent of a business’s fault, as evidenced through upper-management involvement, should correlate with their direct payment of damages. Under such a system, a business like TWC in which upper management knew of the unlawful activities would be held to a higher standard of accountability than, for instance, a business that immediately addresses allegations of a hostile work environment created by a mid-level employee. We propose regulating EPLI contracts by mandating that—in cases of upper-management bad faith—either EPLI insurers have the right to pursue subrogation against the business or the business must pay a minimum proportional risk sharing (i.e., coinsurance) rate. Concurrently, legislatures could grant the EEOC (and corresponding state and local agencies) the power to pursue uninsurable fines in the most egregious cases. Such a structure would hold businesses accountable in situations when upper management plays a role in the commission or cover-up of a prohibited employment action while still allowing the EPLI market to reduce risk to businesses, disseminate best practices, and help compensate victims.

Race-conscious affirmative action in higher education admissions is currently permitted in order for universities to meet their compelling interest in pursuing the educational benefits of a diverse student body. But the legality of affirmative action, which plays a prominent role in creating a diverse student body at elite educational institutions, is under attack. I develop and provide an empirical basis for an expanded understanding of the educational benefits provided by affirmative action: namely, of fostering a pipeline of future societal leaders and professionals. Using data on nearly 500,000 college graduates, I demonstrate that the likelihood of earning a professional or graduate degree—an outcome that is closely linked to employment in influential positions—drops off dramatically in the universities attended by the majority of college graduates, as compared with elite universities that use affirmative action. Further, race is a relatively unimportant predictor of professional or graduate degree attainment among graduates of similarly elite schools. Curtailing race-conscious affirmative action would thereby exclude many students from underrepresented minority groups who would successfully earn professional and graduate degrees—and later, enter into influential positions that shape society.

The Biden Administration, in its first few days in office, clearly stated its intention of using the public procurement system as a means to achieve goals such as favoring domestic companies and workers, ensuring a sustainable public health supply chain, protecting the federal workforce, advancing racial equity, and replacing the federal government’s fleet of vehicles with electric vehicles. The use of public procurement systems in this manner is not new. In fact, it has become commonplace for incoming administrations at different levels of government both in the United States and abroad to announce broad policy objectives when entering office. While there is wide consensus that it is possible to leverage procurement systems to achieve societal goals beyond the purchase of the good or service itself, the reliance on the system to provide such far-ranging solutions coupled with the mixed evidence on the effectiveness of some policies raises concerns over whether the procurement system is able to achieve its primary goal of efficiency in procurement while simultaneously meeting societal goals. In this Article, we advocate for increased rigor in the assessment of costs and benefits derived from the application of socioeconomic policies in public procurement, and for changes in the governance structure that would place the burden of justifying use of the procurement system on the agencies in charge of the specific policy. In this scenario, the procurement officer would remain the ultimate decision-maker regarding a specific procurement, but now equipped with better information would be able to make better decisions. To this end, we provide a taxonomy of socioeconomic procurement policies that are used in the United States and in other countries and review evidence of the effectiveness of different mechanisms used. We develop and provide a conceptual framework on how to review socioeconomic policies coherently while respecting the efficiency goal of the procurement system.

In 2015, the Current Population Survey (CPS) eliminated three questions related to educational attainment. These now-eliminated questions continue to be used by the National Bureau of Economic Research (NBER) to calculate their years of education variable in their Merged Outgoing Rotation Groups (MORG) extracts. We demonstrate that the NBER imputation method after 2014 results in missing values for imputed education for 27.5% of the observations and average years of education of about 1.1 fewer years. We provide coding that can be used with the current CPS questions to allow comparison of years of education over time.

We surveyed academic economists on their experiences and perceptions of legal consulting. Nearly two‐thirds have consulting experience and 40% have consulted within the last 5 years. Base hourly rates average $244, with a median of $200. Women are less likely than men to have served as consultants and charge lower rates than comparable men, but there are few differences by gender in willingness to consult. Women report substantially more negative bias and are less likely to consult in complex cases or to have a high profile role in litigation. (JEL J44, J71, K41)

A commonly held perception is that an elite graduate degree can "scrub" a less prestigious but less costly undergraduate degree. Using data from the National Survey of College Graduates from 2003 to 2017, this article examines the relationship between the status of undergraduate degrees and earnings among those with elite postbaccalaureate degrees. Few graduates of non-selective institutions earn postbaccalaureate degrees from elite institutions, and even when they do, undergraduate institutional prestige continues to be positively related to earnings overall as well as among those with specific postbaccalaureate degrees including business, law, medicine, and doctoral. Among those who earn a graduate degree from an elite institution, the present value of the earnings advantage to having both an undergraduate and a graduate degree from an elite institution generally greatly exceeds any likely cost advantage from attending a less prestigious undergraduate institution.

The labor market is governed by a panoply of laws, regulating virtually all aspects of the employment relation, including hiring, firing, information exchange, privacy, workplace safety, work hours, minimum wages, and access to courts for redress of violations of rights. Antidiscrimination laws, especially Title VII, notably prohibit employment discrimination on the basis of race, color, religion, sex, and national origin. Court decisions and legislation have led to the extension of protection to a far wider range of classes and types of workplace behavior than Title VII originally covered. The workplace of the early 21st century is very different from the workplace when the major employment discrimination statutes were enacted, as these laws were conceived as regulating an employer–employee relationship in a predominantly white male labor market. Prior emphasis on employment discrimination on the basis of race and sex has been superseded by enhanced attention to sexual harassment and discrimination on the basis of disability, sexual orientation, gender identity, and religion. Concerns over the equity or efficiency of the employment-at-will doctrine recede in a workforce in which workers are increasingly categorized as independent contractors who are not covered by most equal employment laws. As the workplace has changed, the scholarship on the law and economics of employment law has been slow to follow.

Although sexual harassment imposes costs on both victims and organizations, it is also costly for organizations to reduce sexual harassment. Legislation, education, training, and litigation have all been unsuccessful in eradicating workplace sexual harassment. My proposal is to establish financial incentives of sufficient magnitude to incentivize organizations to eliminate sexual harassment. The key challenge is in monetizing the harm caused by sexual harassment. I propose a new approach that draws on my research, which calculated the risk of sexual harassment by gender, industry, and age based on charges filed with the Equal Employment Opportunity Commission. Using these risk measures, I established that workers receive a hazard pay premium for exposure to risk of sexual harassment. This premium reflects the higher pay workers need to work in a more hostile work environment and monetizes the aggregate societal evaluation of exposure to risk of an abhorred workplace behavior. Using my estimates of the pay premium, I calculate a value that I refer to as the “value of statistical harassment” (VSH). This amount is $7.6 million, far greater than the current federal cap of $300,000 for the largest firms. Raising the damages cap on awards to this level would provide organizations with the necessary financial incentive for efficient deterrence.

Upon divorce, marital assets in most states are divided equitably, often with the underlying legal purpose of equalizing outcomes. To examine whether decisionmakers value economic considerations, such as opportunity cost, specialization, and bargaining power, we asked subjects to divide marital assets equitably between a breadwinning husband and non-breadwinning wife in a wealthy household. Subjects award less than 50 percent of assets to the wife, regardless of her education or the level of marital assets. Men award lower shares but, unlike women, award a larger share to a more educated wife. Equitable division can lead to unequal outcomes for wives who opt out of the labor force.

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women. We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

Upon divorce, marital assets in most U.S. states are divided equitably, often with the underlying legal purpose of equalizing outcomes. To examine whether decisionmakers value economic considerations, such as opportunity cost, specialization, and bargaining power, we conducted a vignette study in which we asked subjects to divide marital assets equitably between an employed husband and a wife without labor market income in a wealthy household. Subjects award less than 50 percent of assets to the wife, regardless of her education or the level of marital assets. Men award lower shares but, unlike women, award a larger share to a more educated wife. Equitable division can lead to unequal outcomes for wives who opt out of the labor force. These findings imply that the objective of equalizing post-divorce outcomes would be better accomplished through legal directives that nudge towards equal asset division and assign greater weight to nonmonetary contributions.

In 2015, the Current Population Survey (CPS) eliminated three questions related to educational attainment. These questions are used by the NBER to calculate the variable, "Imputed Highest Grade Completed" (ihigrdc) in their Monthly Outgoing Rotation Group (MORG) extracts. Imputed Highest Grade Completed provides a convenient measure of years of education and is based on the credential oriented CPS variable that is coded from 31 to 46. Because the NBER continues to use coding that relies on these eliminated questions to calculate ihigrdc, this variable has a missing value for 27.5% of the observations in the 2015-2018 extracts. These missing values, in turn, lead to an average Imputed Highest Grade Completed of about 1.2 fewer years after 2014 than would result from using the whole CPS. We informed the NBER of this issue in January 2019; however, because this variable with missing values remains on their website for download as of this writing (July 15, 2019), we are posting this working paper to inform users of these data so that they may address the issue appropriately in their own work.