Tuesday, November 15, 2011
Michael Zimmer (Loyola-Chicago) has just posted on SSRN the article he delivered at the Labor & Employment Colloquium and at Lewis & Clark's conference on protected classes and antidiscrimination. The article, forthcoming Lewis & Clark L. Rev., is Wal-Mart v. Dukes: Taking the Protection Out of Protected Classes. Here's the abstract:
Wal-Mart v. Dukes was a major 2011 procedural decision changing the future path of class actions. To decide the procedural issue, the Court found it necessary to look to the underlying substantive law - Title VII’s systemic disparate treatment and disparate impact theories of discrimination. This article will explore the way the Court treated that substantive law to attempt to see if Wal-Mart is a foreshadowing of major changes in the substance of antidiscrimination law. To do that, it will first briefly develop the competing visions of the underlying purpose of antidiscrimination law - whether the aim of the law is to address subordination of classes of people protected by the law or is simply to prohibit classifications - and traces their development since Reconstruction through the Rehnquist Court. Next, it develops the earlier Robert’s Court decisions in Parents Involved and Ricci v. DeStefano. leading up to Wal-Mart showing how the anticlassification purpose and corresponding absolute color-blind rule have come to predominate if not completely prevail. Finally getting to Wal-Mart, the article first sketches out how Wal-Mart would be analyzed under prior law and then describes how that substantive law was treated in the decision itself. Looking at the juxtaposition of prior law with the approach to substantive antidiscrimination law developed the next section sets out the possible impact of Wal-Mart on that law. In the best case, Wal-Mart would have no impact on Title VII’s substantive law. In the worst case, the decision foreshadows a major contraction of the systemic theories of discrimination that were in place before the Roberts Court era.