Access & Asymmetry in Employment Discrimination Law(2011)
AbstractThe federal anti-discrimination claiming system as presently constructed excludes close to one-fifth of the American workforce outright, and prevents even greater numbers of individuals from seeking redress for reasons unrelated to the merits of their claims. Stringent statutory requisites as to covered employers, administrative exhaustion and the limitations period create barriers to access that not only prevent individuals from obtaining relief but permit discrimination to persist on a systemic level, hobbling realization of the anti-discrimination mandate. These problems are further compounded by arbitrary asymmetries in the access requirements of various anti-discrimination statutes. Recent scholarship in the employment discrimination area has focused upon the normative structure of discrimination claims, i.e., whether the existing framework, required elements of proof and burden-shifting structure are effective in addressing racism, sexism and other biases in the workplace or whether a new, more fluid schema is required to capture the complexities of modern prejudice and its many manifestations. These articles miss the more fundamental question of access to employment discrimination law. This article contributes to the field by comprehensively rethinking the barriers-to-access problem in anti-discrimination law. Part I examines the evolution of the federal employment statutes and their varying requirements for the minimum number of employees, exhaustion and timeliness. Part II considers the nature of the barriers to access, their merits as well as the problems they create. Part III analyzes the problem of asymmetries among the employment laws with respect to access. Finally, Part IV re-envisions the requirements of the anti-discrimination claiming system and offers a proposal whereby: 1) all employees would be covered by the federal anti-discrimination statutes and given access to the Equal Employment Opportunity Commission, which would have adjudicative, rather than merely investigative, authority over claims; 2) individuals employed by larger companies would be permitted to opt out of the EEOC process and proceed directly to federal court; and 3) the access requirements would be harmonized across the anti-discrimination statutes. These reforms would have the benefits of widening access to the anti-discrimination claiming system while eliminating duplication of efforts and ensuring that the system operates more effectively.
Citation InformationPam Jenoff. "Access & Asymmetry in Employment Discrimination Law" (2011)
Available at: http://works.bepress.com/pam_jenoff/2/