Title Vii, Mediation, and Collective Action

Abstract

Many commentators have noted that existing Title VII doctrine and its enforcement mechanisms do not adequately protect employees from discrimination. While most of these commentators suggest changes to Title VII doctrine or changes with the litigation system, I propose a mediation-centered approach to resolving problems of workplace discrimination. I attempt to demonstrate how this approach responds to many of the inadequacies of the Title VII status quo.

However, power imbalances between the employer and employee may have a greater impact on mediated outcomes, due to the absence of safeguards available in litigation. I propose that this power imbalance problem might be minimized by involving employee caucuses - employee groups organized around identity lines - in the mediation process. The article considers the benefits and costs related to caucus participation in workplace governance, and, particularly, in mediation of discrimination claims. Finding that the benefits exceed the costs, I suggest that changes to Title VII antiretaliation law may be necessary to facilitate the development of caucus groups.

Keywords: Title VII, mediation, caucus