Will Employment Discrimination Class Actions Survive?

Abstract

Recent years have witnessed increasing attacks on the appropriateness of certification of employment discrimination class action claims. The shift is often attributed to amendments to federal antidiscrimination laws in the Civil Rights Act of 1991. This paper argues, however, that the changes wrought by the 1991 amendments need not pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class action either impermissible under Rule 23 or violative of due process or Seventh Amendment jury trial rights. Courts and commentators who insist that these changes are fatal to certification of employment discrimination classes are incorrect. The strength of their conviction, however, raises the question whether other factors might be motivating the hostility confronting employment class certification. This article explores some of these other factors, including the widely credited notion that class actions in general are unfair; the perception that employment discrimination class actions are no longer necessary for full enforcement of civil rights; and a deep uncertainty about the merits of certain claims being pursued in employment discrimination suits today.

Keywords: Civil Rights, Courts, Employment Practice, Practice and Procedure, Class Actions