Berkeley Journal of Employment & Labor Law
Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berkeley J. Emp. & Lab. L. 455 (2011), available at http://scholar.law.colorado.edu/articles/163.
Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article critiques the Court's novel and careless interpretation of Title VII and explains the threat the opinion poses to the continued viability of pattern and practice claims.
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