On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the 'Monell Analogue'

Abstract

At oral argument in Wal-Mart v. Dukes, Justice Kennedy proposed a “Monell analogue” for systemic discrimination claims under Title VII of the Civil Rights Act. His proposal followed on similar suggestion made by Chief Justice Roberts, and even Justices Ginsburg and Breyer asked questions that might be construed along these lines. Glimmers of the analogue also surface in the Supreme Court’s majority opinion in the case. Why are the Justices drawn to this analogy? And, more importantly, is it apt? Using police misconduct as a specific contextual lens, I probe in this Essay the similarities and differences between patterns and practices of misconduct litigated under Title VII of the Civil Rights Act (discrimination in employment) and patterns and practices of misconduct litigated under section 14141 (excessive force and other misconduct by police officers) governed by the law of Monell. I argue that the “Monell analogue” is a mistake, and I show why. It turns out that there are similarities between police misconduct carried out in police departments and discrimination carried out in work organizations, but the differences in the laws are greater than the similarities in the problems, and even the similarities in the problems drive home why Title VII law should not look more like Monell.

Keywords: civil rights, employment discrimination, police misconduct, Monell, Title VII, Section 14141