Systemic Harassment

Jason R. Bent

Stetson University - College of Law

September 13, 2009

Tennessee Law Review, Forthcoming

Systemic employment discrimination cases, including private class actions and EEOC "pattern or practice" actions, have been used since the 1960s to redress overt forms of discrimination in the workplace. Today, however, there is an emerging area of systemic employment litigation that holds the potential to play an important role in combating the sources of structural or "second generation" discrimination: systemic harassment litigation. Unfortunately, litigants and courts are generally confused about how systemic harassment claims should be pursued and litigated. Harassment cases do not fit the mold for "pattern or practice" cases outlined by the Supreme Court in International Brotherhood of Teamsters v. United States, leaving the federal courts divided over key substantive and procedural issues in systemic harassment cases.

In this Article, I propose a litigation framework and enforcement strategy for systemic harassment cases that is founded upon the statutory language of Title VII. By carefully observing the distinction between those provisions of Title VII aimed at protecting the interests of individual "aggrieved persons" and the separate provisions aimed at protecting the public interest, a sensible litigation framework can be formulated for systemic harassment cases. Failing to observe this statutory distinction has led the EEOC to pursue an ineffective enforcement strategy. The EEOC's focus in systemic harassment cases has been to obtain monetary damages for individual victims under an increasingly outdated rules-enforcement paradigm, rather than to obtain meaningful prospective relief. As a result, the EEOC has missed an important opportunity to begin addressing structural forms of discrimination. I propose an alternative public enforcement strategy for systemic harassment cases that focuses on obtaining effective consent orders that will usher in structural reform and will result in a more efficient allocation of enforcement resources.

Number of Pages in PDF File: 94

Keywords: harassment, hostile work environment, systemic, discrimination, EEOC, Teamsters, pattern or practice

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Date posted: March 12, 2009 ; Last revised: March 12, 2010

Suggested Citation

Bent, Jason R., Systemic Harassment (September 13, 2009). Tennessee Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1357559

Contact Information

Jason R. Bent (Contact Author)
Stetson University - College of Law ( email )
1401 61st Street South
Gulfport, FL 33707
United States
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