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

Theresa M. Beiner

After Congress enacted the first laws prohibiting employment discrimination in 1964, workplaces changed significantly. No longer could employers segregate workplaces based on race or sex. In many workplaces, workers who had been separated now worked side by side. One only need board an airline flight to realize how law can transform jobs and workplaces. Instead of seeing only the pretty, slim, young, unmarried “stewardesses” of the 1960s, it is not uncommon to have an entirely male flight attendant crew that includes workers over age fifty. Indeed, both the pilot and co-pilot on a commercial flight might well be women. While this transformation in workplaces is one of Title VII’s key successes, in more recent years, scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination in the workplace 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. In addition, some scholars have opined that the federal courts are hostile to employment discrimination claims and do not wish to hear them. This may lead one to believe that out-of-court processes might better serve the aims of anti-discrimination laws.

This Article will argue the opposite: that there is a distinct need for employment discrimination cases to be tried in court before juries. This Article charts the many processes the federal courts have used over the last twenty years to withdraw themselves from 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 in order to “get rid of” these cases. 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. Notably, the courts are not the only movers of this trend; even the federal agency tasked with enforcing these laws—the Equal Employment Opportunity Commission (“EEOC”)—is finding means other than court cases for addressing these claims.10 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.