Abstract

http://ssrn.com/abstract=1793425
 
 

Citations (1)



 
 

Footnotes (238)



 


 



The Future of Systemic Disparate Treatment Law


Tristin Green


University of San Francisco - School of Law

2011

Berkeley Journal of Employment and Labor Law, Vol. 32, No. 2, 2011
Univ. of San Francisco Law Research Paper No. 2011-11

Abstract:     
At the same time that it becomes increasingly clear that organizational change is crucial to reducing workplace discrimination, longstanding theories of systemic discrimination are under attack. This Article exposes the threat posed to the mainstay of systemic theories – systemic disparate treatment theory – under which plaintiffs frequently use statistics (along with other evidence) to establish that discrimination is widespread within the defendant organization. The threat to private enforcement of Title VII against systemic disparate treatment is starkly evident in the current battle over class certification, but the threat goes much deeper than whether private plaintiffs will be able to obtain class certification in employment discrimination cases – it goes to the substance of systemic disparate treatment law.

This Article uncovers the “policy-required” view of entity responsibility that underlies the dissenting opinion in the Ninth Circuit class certification decision in Dukes v. Wal-Mart and exposes the implications of that view for the future of systemic disparate treatment law. It also shows how an individualistic model of organizational wrongdoing more broadly has led to under-theorizing, even mis-theorizing, of entity responsibility for systemic disparate treatment. Drawing on developments in other areas of organizational wrongdoing, the Article advances a “context” model as theoretical grounding for existing systemic disparate treatment law. A context model emphasizes the role of organizational context in producing wrongdoing. Viewed through a context lens, systemic disparate treatment law imposes direct liability on employers for regular, widespread disparate treatment as well as for discriminatory policies because in those circumstances the employer is likely to be producing or to have produced disparate treatment within the organization.

Number of Pages in PDF File: 60

Keywords: discrimination, employment, civil rights, gender, race

Accepted Paper Series


Download This Paper

Date posted: March 28, 2011 ; Last revised: February 3, 2012

Suggested Citation

Green, Tristin, The Future of Systemic Disparate Treatment Law (2011). Berkeley Journal of Employment and Labor Law, Vol. 32, No. 2, 2011; Univ. of San Francisco Law Research Paper No. 2011-11. Available at SSRN: http://ssrn.com/abstract=1793425

Contact Information

Tristin Green (Contact Author)
University of San Francisco - School of Law ( email )
2130 Fulton Street
San Francisco, CA 94117
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,065
Downloads: 173
Download Rank: 96,703
Citations:  1
Footnotes:  238

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.297 seconds