The Many Lanes Out of Court: Against Privatization of Employment Discrimination Disputes

Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts’ inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants to abandon the federal court system. This article argues that, rather than eschewing the federal courts, employment discrimination plaintiffs should bring their cases in the federal courts, preferably before juries. This article charts the multi-laned manner in which the federal courts have essentially gotten out of the employment discrimination business. In a series of cases, the Supreme Court of the United States has opened the door to alternative forms of dispute resolution. Whether it be through a robust pro-arbitration jurisprudence, an uncalled-for reliance on employer internal grievance mechanisms, or aggressive settlement conferences, courts are shunting employment discrimination cases out of the court system and into the sphere of private dispute resolution. This is not only coming from the courts. Even the federal agency tasked with enforcing these laws – the Equal Employment Opportunity Commission – is finding means other than court cases for addressing these claims. In addition, lower courts have used invigorated civil procedure rules, including summary judgment motions and motions to dismiss, as an effective tool to clear their dockets, leaving plaintiffs with no relief at all. Yet, there is no way to know whether alternative dispute resolution systems, such as arbitration, mediation, settlement, or internal employer grievance mechanisms, are actually providing justice to workers. Most of these alternative dispute resolution systems fly under the radar – “in the shadow of the law,” as commentators suggest. In addition, they do not alert either employers or employees to what is and is not acceptable workplace behavior. Most importantly, these alternative schemes provide no support for the norm-enforcing scheme that is the American legal system. This article, in the tradition of Professor Owen Fiss’s Against Settlement, looks at the potential effects of employment discrimination laws being enforced – if at all – through private dispute resolution mechanisms. Anti-discrimination laws serve a vital public purpose – they set norms of behavior for workplaces and workers in the area of equal employment opportunity. This article argues that case law in this area is important for setting norms of appropriate workplace behavior and practices as well as setting monetary values for the harm employment discrimination causes its victims. Thus, there is cause for concern when alternative dispute resolution supplants jury trials in this area of the law.