Rebuilding the Barriers: The Trend in Employment Discrimination Class Actions
63 Pages Posted: 2 Nov 2014
Date Written: 1987
The thesis of this article is that restrictive certification, as predicted early on, is draining the life out of Title VII. Class actions are a necessary tool to vindicate Title VII rights, and the courts should not eliminate such actions in deference to a false assumption that only a person with the same claim as the class can be an adequate representative. The courts are expecting a perfect class representative, thus ignoring the realities of Title VII litigation. It is difficult for anyone to sue his or her employer. Class representatives are not as likely to present themselves in such suits as in other litigation. Furthermore, only the largest employers employ enough people with identical current claims to fill a class. Therefore, the present trend must be reversed. If class actions are to be a viable tool in the enforcement of Title VII, the courts must be willing to certify smaller classes and to accept as a class representative one whose claims are related, but not identical, to the claims of the class.
This article analyzes the present trend in a historical context and suggests solutions which allow the courts to take into consideration the problems the Title VII plaintiff faces, while assuring compliance with Rule 23.
Keywords: Employment Discrimination, Class Action, Class Representative, Civil Rights Act of 1964, Title VII
Suggested Citation: Suggested Citation