Class-Based Adjudication of Title VII Claims in the Age of the Roberts Court

Abstract

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations of Rule 23 reinforced existing conditions on Title VII class actions. But Wal-Mart neither retracted meaningful Title VII law nor reinterpreted Rule 23 in a manner that should, or indeed has, prevented private Title VII class litigation in appropriate cases. The Court's interpretations of the FAA, by contrast, enable most employers outside the transportation industry to avoid any form of class adjudications, whether in arbitration or litigation. Reform thus should concentrate on restricting employers' legal authority to impose pre-dispute agreements to arbitrate on employees.

Keywords: Title VII class actions, Rule 23, predispute arbitration agreements, Federal Arbitration Act, Wal-Mart v. Dukes, class actions, Title VII arbitration, Italian Colors, class-based arbitration