Green Focuses Scholarship on Systemic Disparate Treatment Theory

“We organized this working group with the aim of bringing together employment discrimination law scholars to discuss the future of systemic disparate treatment law and also to provide academic commentary on the underlying substantive law at a time when the Supreme Court is considering Wal-Mart v. Dukes,” Green said. “An examination of the purpose of systemic disparate treatment law, its doctrine, and its theoretical grounding seemed to us long overdue.”

In addition to Green and Zatz, members of the working group include George E. Osborne Professor of Law Richard Ford, Stanford University Law School; Associate Professor of Law Melissa Hart, University of Colorado Law School; and Samuel Tyler Research Professor of Law Michael Selmi, George Washington University Law School.

In Green’s forthcoming article, “The Future of Systemic Disparate Treatment Law,” she warns that systemic disparate treatment theory is under threat. Plaintiffs have long established employer liability under this theory by showing a pattern or practice of discrimination within an organization. The U.S. Supreme Court’s class certification decision in Wal-Mart v. Dukes may change that for future plaintiffs.

Green argues in her article that it would be a mistake to constrict systemic disparate treatment law just when discrimination on an individual level is more difficult to identify and prove. She says that employers—as entities that control the context in which day-to-day employment decisions are made—should be held liable for widespread discrimination within their organizations.

“Systemic disparate treatment law serves a role in the regulatory scheme that individual disparate treatment law does not; its preservation is crucial for combating discrimination in the modern workplace,” Green said.

Green’s article, available in draft form on SSRN and BJELL, as well as shorter articles and commentary by other members of the working group will be published in Berkeley Journal of Employment and Labor Law later this year.