Academic journal article Boston University Law Review

Addressing Systemic Discrimination: Public Enforcement and the Role of the Eeo

Academic journal article Boston University Law Review

Addressing Systemic Discrimination: Public Enforcement and the Role of the Eeo

Article excerpt

INTRODUCTION

In passing the Civil Rights Act of 1964, Congress broadly prohibited employment discrimination on the basis of race, color, religion, sex, and national origin.1 Although Title VII of the Act unambiguously declares that these forms of discrimination are forbidden, it does not specify which employer practices are lawful and which are not. The case law that subsequently developed reflects deep societal tensions over what exactly is meant by discrimination and how far the law should go to eliminate it.2 In particular, cases targeting systemic discrimination have been controversial. In contrast to the individual case seeking redress for a particular employee, cases involving systemic discrimination target workforce-wide policies and practices that systematically disadvantage racial minorities, women, and other protected groups.3 Although the courts have permitted workforce-wide challenges, some critics have argued that the doctrine is inadequate to capture or address many pervasive, yet subtle forms of systemic discrimination.4 Others decry the attention paid to systemic claims, asserting that discrimination is best understood as a problem of individual prejudice, and that employers should not be held responsible for societal forces over which they have no control.5 These competing views reflect broader debates regarding the nature of systemic bias and whether it is a form of discrimination forbidden by law.

Despite the lack of consensus, systemic cases have always constituted an important slice of litigation under Title VII. Early government enforcement efforts included systemic cases, which sought thorough-going reform of the practices of leading firms in steelmaking, banking, utilities, and transportation.6 Private litigants also pursued cases alleging systemic discrimination, bringing class actions under Rule 23 of the Federal Rules of Civil Procedure on behalf of numerous employees to challenge the practices of a common employer. Over time, the private employment class action became more dominant, and many high-profile cases were brought by employees represented by private counsel.7 In 2011, however, the Supreme Court in WalMart Stores, Inc. v. Dukes8 struck down a proposed nationwide class action against Wal-Mart alleging sex discrimination. In doing so, it not only raised the bar for certifying a Rule 23 class action, it also made it considerably more difficult for private plaintiffs to pursue claims of systemic employment discrimination.9 In the wake of the Court's decision in Wal-Mart, many expected that the Equal Employment Opportunity Commission ("EEOC") would use its enforcement powers to take up the slack.10

For a number of reasons, the EEOC is uniquely positioned to litigate claims of systemic discrimination. In particular, the EEOC has the power to bring suit on behalf of all employees affected by an employer's discriminatory practices and is not required to certify a class or to satisfy the requirements of Rule 23 when doing so.11 Thus, it appears that the Wal-Mart decision would have little impact on the EEOC's ability to pursue cases affecting large groups of workers. Noting these procedural advantages, those critical of the decision have called on the EEOC to play a greater role in addressing systemic discrimination, urging the agency to take advantage of its statutory authority to bring suit on behalf of all aggrieved individuals and to more aggressively pursue cases involving broad-based discrimination.12 Employer advocates have warned their clients that the EEOC might do exactly that.13

This Essay explores the possibilities and the limitations of the EEOC, acting in its role as enforcer of anti-discrimination laws, to address systemic discrimination in the workplace. In doing so, it assumes, without attempting a full defense, that systemic bias exists and is a matter of policy concern. Accepting the premise that combating systemic discrimination will advance anti-discrimination norms, it responds to the suggestion that more aggressive enforcement by the EEOC is a promising means for pursuing such cases. …

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