The Possibility of Avoiding Discrimination: Considering Compliance and Liability.
The gender discrimination class action Dukes v. Wal-Mart Stores, Inc., whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to distinguish employers who are part of the problem from those who are not? This Article argues that, given the real possibility of judicial and public resistance to these suits, there is a serious need for some articulation of what employer practices would be sufficient to demonstrate legal compliance sufficient to forestall litigation like Dukes. Past litigation, the evaluations of human resources experts, and Supreme Court interpretations of the requirements of federal antidiscrimination law all provide some guidance as to employer policies that could satisfy these compliance efforts. But a growing body of empirical research suggests that workplace programs designed for compliance do not necessarily improve circumstances for women and minorities. Any discussion of compliance must grapple with this problem. This Article argues that employers, and those offering them guidance, must develop strategies for compliance that will in fact remove barriers to equality, but that litigation like Dukes may not be appropriate to target employers who have made substantial compliance efforts, even if those efforts have not eliminated inequalities. Reprinted by permission of the publisher.