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Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts


Scott A. Moss


University of Colorado Law School


Fordham Law Review, Vol. 76, p. 981, November 2007

Abstract:     
The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.

This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:

Policy 1: Employees must try internal dispute resolution before suing - or lose their claims.

Policy 2: Employees must sue promptly after discrimination starts - or lose their claims.

These policies are plausible independently but incoherent together. Harassment plaintiffs lose by suing too quickly, without trying internal resolution; pay or promotion discrimination plaintiffs lose by delaying suit to seek internal resolution. This inconsistency exists even within the same cases: dual-claim plaintiffs alleging both harassment and pay or promotion discrimination face competing demands to file promptly and to delay filing. The Court has given no rationale for this difference, and the reverse would make more sense: delaying litigation is more troubling for he-said/she-said harassment cases than for pay disparity cases based on objective data, and day-to-day harassment seems harder to resolve internally than pay disparities.

An explanation for this inconsistency is that the Court has wavered in its commitment not to fighting discrimination, but to fighting discrimination with litigation - a theory based on the Court's broader hostility to litigation as a tool of dispute resolution. Thus, the Court continues to produce pro-plaintiff outcomes with its continued adherence to the policy of broadly construing Title VII - except in cases implicating anti-litigation policies.

The Court's anti-litigation policies, however, place inconsistent demands on employees and significantly harm the Court's commitment to the older policy of construing discrimination statutes broadly. Lower courts can mitigate these problems in several ways: exempt dual-claim harassment plaintiffs from requirements of pre-litigation dispute resolution, broadly construe exceptions to that requirement (which most courts wrongly construe as a per se rule), and mitigate the harshness of short limitations periods with a discovery rule that the limitations period begins not when discrimination starts, but when the employee reasonably should have discovered the discrimination.

Number of Pages in PDF File: 33

Keywords: litigation, discrimination, retaliation, employment, Supreme Court

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Date posted: November 1, 2007 ; Last revised: November 12, 2007

Suggested Citation

Moss, Scott A., Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts. Fordham Law Review, Vol. 76, p. 981, November 2007. Available at SSRN: http://ssrn.com/abstract=1026055

Contact Information

Scott A. Moss (Contact Author)
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States
303-735-5374 (Phone)
HOME PAGE: http://lawweb.colorado.edu/profiles/profile.jsp?id=258

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