The Failure of Title VII as a Rights-Claiming System

Abstract:     
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming. The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so. Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII's timely complaint and retaliation doctrines create an untenable framework for employees in need of the law's substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes. This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system.

Keywords: discrimination, Title VII, gender, retaliation

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