23 Pages Posted: 19 Jun 2012
Date Written: 2011
Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court’s decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs’ claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court’s opinion — its rejection of statistical modeling for remedial determinations — has received little attention. This article critiques the Court’s novel and careless interpretation of Title VII and explains the threat the opinion poses to the continued viability of pattern and practice claims.
Keywords: Employment discrimination, class actions, Walmart, systemic discrimination, procedure, pattern and practice claims, rules enabling act
JEL Classification: J71, J78, J70, K40, K41
Suggested Citation: Suggested Citation
Hart, Melissa, Civil Rights and Systemic Wrongs: The Future of Employment Discrimination Class Actions (2011). Berkeley Journal of Employment and Labor Law, Vol. 32, p. 457, 2011; U of Colorado Law Legal Studies Research Paper No. 12-11. Available at SSRN: https://ssrn.com/abstract=2087727