Civil Rights and Systemic Wrongs: The Future of Employment Discrimination Class Actions

23 Pages Posted: 19 Jun 2012

See all articles by Melissa Hart

Melissa Hart

University of Colorado Law School

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

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:

Melissa Hart (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States
303-735-6344 (Phone)

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