Class-Based Adjudication of Title VII Claims in the Age of the Roberts Court

Abstract

INTRODUCTIONTitle VII's most significant set of amendments, the Civil Rights Act of 1991,1 was in substantial part a response to decisions of the Rehnquist Court issued during its 1988-89 term, including the especially controversial Wards Cove Packing Co. v. Atonio.2 While the Roberts Court also has issued a number of opinions interpreting employment discrimination laws contrary to the advocacy of civil rights proponents,3 its decisions on substantive employment discrimination law have been mixed4 and have not provoked a cry for a new set of comprehensive amendments.None of the Roberts Court's interpretations of substantive law, however, seems to have the potential of doing as much damage to the promise of the amended Title VII as do several rulings of the Roberts Court on procedural issues. These rulings include the Court's application of Rule 23,5 the Federal Rule of Civil Procedure ("FRCP") governing class actions, to a Title VII case, Wal-Mart Stores, Inc. v. Dukes.6 They also include the Court's interpretation of the Federal Arbitration Act ("FAA")7 in a series of decisions, including ATT at least without further restrictive interpretations, Rule 23 still affords plaintiffs and conscientious federal judges the flexibility to utilize class actions to press a broad range of both systemic disparate treatment and disparate impact claims.13Unfortunately, in my view, the importance of the Wal-Mart decision is also limited for Title VII class actions, as it is for other kinds of class actions, by the Court's recent decisions in cases dealing with the arbitration of consumer misrepresentation and antitrust claims rather than discrimination claims. Through these decisions, including Concepcion and Italian Colors, the Roberts Court in effect offered any business outside the transportation industry the option of arbitration as a bar against collective actions brought by any economically subordinate parties, including employees, upon whom the business can impose agreements.14 These decisions, in tandem with the Court's earlier application of the FAA to employment contracts,15 empower most employers to preclude not only class-based litigation, but also class-based arbitration.This Essay proceeds as follows. Part I traces the development of Title VII class actions for both disparate treatment and disparate impact claims. Part II examines the predictability and manageable impact of the primary holding of the Wal-Mart decision: its application of Rule 23(a)(2)'s conditioning of certification on the existence of a common issue of fact or law. Part III provides a parallel assessment of the Court's pronouncement on the limits of Rule 23(b)(2) class actions. While this assessment acknowledges the importance of the Court's pronouncements on (b)(2), including troublesome dicta limiting the use of litigation models, the assessment concludes that these pronouncements do not provide insurmountable barriers to Title VII class actions. …