The Future of Systemic Disparate Treatment Law
60 Pages Posted: 28 Mar 2011 Last revised: 3 Feb 2012
Date Written: 2011
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.
Keywords: discrimination, employment, civil rights, gender, race
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