“Weathering Wal-Mart”

That's the name of this article by Joseph Seiner. Seiner sets out what he says are the best ways for discrimination victims to vindicate their rights in the wake of the Supreme Court's class-action decision in Wal-Mart v. Dukes. (The problems for plaintiffs created by Wal-Mart arguably have been exacerbated by the Supreme Court's decision earlier this week in Comcast Corp. v. Behrens. Go here and here.)

Here's Seiner's abstract:

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme
Court held that a proposed class of over a million women that had
alleged pay and promotion discrimination against the nation’s largest
retailer could not be certified. According to the Court, the plaintiffs
had failed to establish a common thread in the case sufficient to tie
their claims together. The academic response to Wal-Mart was immediate
and harsh: the decision will serve as the death knell for mass
employment litigation, undermining the workplace protections provided by
Title VII of the Civil Rights Act of 1964 (Title VII). This Article
embraces the view offered by scholars to date, and does not engage the
debate over the extent to which Wal-Mart will eviscerate the employment
rights of workers.

Instead, this Article attempts — for the first
time — to find a solution to the problem created by Wal-Mart. The
academic literature has yet to explore possible ways to minimize the
impact of the Court’s decision, and this Article seeks to fill that void
in the scholarship. Though the case undoubtedly weakens the ability of
Title VII plaintiffs to pursue class-action claims, the decision still
leaves substantial room for creative approaches to systemic
discrimination. This paper offers three such solutions to the problem
created by Wal-Mart: the governmental approach, the procedural response,
and revised relief. This Article critiques each approach, and explains
how they are useful in pursuing workplace cases that involve
company-wide discrimination. This paper also situates these proposals
in the context of the existing literature.

The thesis of this
Article is simple. Taking at face value the argument of scholars that
Wal-Mart has created a gaping hole for victims of systemic
discrimination, this paper asks what tools are still available for
plaintiffs to help fill that hole. Wal-Mart signals a sea change for
mass-employment litigation. The challenge now will be to find
imaginative ways of pursuing systemic discrimination claims. For the
first time in the academic literature, this Article takes on that

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