Volume 32(2) of the Berkeley Journal of Employment and Labor Law will feature papers from the Working Group on the Future of Systemic Disparate Treatment Law
The Working Group on The Future of Systemic Disparate Treatment Law was co-organized by Professors Tristin Green and Noah Zatz. Its goal is to bring together employment discrimination law scholars to discuss the future of systemic disparate treatment law and to provide academic commentary on the underlying substantive law at a time when the Supreme Court is considering the procedural question of class certification in Wal-Mart v. Dukes. The Working Group met for a full day of critical discussion on March 18, 2011 at the University of San Francisco School of Law. Collaboration, critique, and engaged discussion continue.
Members of the Working Group:
Richard Ford, George E. Osborne Professor of Law, Stanford University Law School
Tristin Green, Professor of Law, University of San Francisco School of Law
Melissa Hart, Associate Professor of Law, University of Colorado Law School
Michael Selmi, Samuel Tyler Research Professor of Law, GW Law
Noah Zatz, Professor of Law, UCLA School of Law
Publications of the Working Group will consist of a principal article by Professor Green, The Future of Systemic Disparate Treatment Law, and shorter articles and commentary by other members of the Group. Drafts of the Working Group papers will be posted on this site as they become available and will be published together in Volume 32 of the Berkeley Journal of Employment and Labor Law (forthcoming 2011). Members of the Working Group encourage comments and feedback on their drafts.
Tristin K. Green, The Future of Systemic Disparate Treatment Law, 32 Berk. J. of Emp. & Lab. L. __ (forthcoming 2011), draft posted March 23, 2011. In this Article, Professor Green warns of the threat posed to the substantive law of systemic disparate treatment by the individualistic model of organizational wrongdoing that underlies Judge Ikuta’s dissent in the 9th Circuit en banc Dukes v. Wal-Mart decision and the class action debate generally and also that emerges from scholarship and case law relying on a principal-agent model of organizational responsibility. She urges in contrast a theoretical grounding in context and an understanding of systemic disparate treatment law as imposing direct liability on entities for disparate treatment that is the regular rather than the unusual practice within an organization (liability, in other words, for widespread internal disparate treatment).
Michael Selmi, Theorizing Systemic Disparate Treatment Law, 32 Berk. J. of Emp. & Lab. L. __ (forthcoming 2011), The pattern or practice cause of action is the most potent, but least understood, of the causes of action recognized by Title VII. The massive sex discrimination case filed against Wal-Mart has renewed scrutiny on the nature of the pattern or practice claim, and this essay seeks to explain under what circumstances statistics can prove intentional discrimination. This essay first explores the history of the pattern or practice claim, noting that the primary case law is now three decades old and was developed around issues of overt race discrimination. Claims of gender discrimination are more complicated because the regression analyses that are at the core of the case do not create as strong an inference of discrimination as occurs in the context of race discrimination. The essay, however, rejects the notion that the pattern or practice claim is merely an aggregation of individual claims, and instead suggests that the statistics prove a more subtle form of discrimination that would not be evident if one focused solely on individual claims. The paper also critiques the presentation of the sex discrimination claim in the Wal-Mart litigation for its generic quality, and suggests that plaintiffs must provide a narrative that explains the statistical story with a focus on the particular employer.