Scholarship@WashULaw

Document Type

Article

Publication Date

2014

Publication Title

Washington University Law Review

Abstract

In 2011, the United States Supreme Court struck down a class action suit alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions, making it more difficult to obtain certification of private employment discrimination class actions. As a result, the role of the Equal Employment Opportunity Commission in seeking structural reform of the workplace, always of substantial influence, has gained in comparative importance. Yet there is remarkably little written about the EEOC’s large-scale injunctive cases. This Article addresses this major gap in scholarship. Using both qualitative case studies and a new quantitative data-set, we test existing theories about structural reform litigation in the workplace. We begin with the two dominant theories that offer different accounts of injunctive practices aimed at structural reform of the workplace. Both describe how legal interventions can transform the culture and practice of targeted firms. The first, which we call “gladiator theory,” emphasizes dramatic litigated struggles; the second, which we call “collaborationist theory,” highlights intense collaborations. However, these theories are undermined generally by their reliance on highly unusual, if salient, cases. In order to eliminate this source of bias, we undertake a systematic analysis of the EEOC’s injunctive practices over a ten-year period of time and measure them against the extant theories of litigated reform. We find a notable disconnect. We observe instead that the injunctive relief obtained by the EEOC in these cases appears primarily aimed at forcing firms to implement what are commonly accepted as good and rational human resources practices. As we explore, these forms of injunctive relief are consonant with the sociological literature about how firms respond in non-litigation contexts to anti-discrimination law. The remedies obtained by the EEOC are geared more towards rationalizing the firm’s employment practices than transforming its culture and norms. They impose practices that would be entirely familiar to firms with well-functioning human resources departments that have adopted professionally endorsed “best practices” for compliance with the law. Thus we argue that the agency’s structural reform efforts do not support either the gladiator and collaborationist theories, and are best viewed as the quite routinized application of managerialist, bureaucratic responses to the legal prohibitions against discrimination. This is an important finding for anyone interested in litigated structural reform generally, and in employment litigation and the EEOC more particularly.

Keywords

Anti-Discrimination, Equal Employment Opportunity, Civil Rights Litigation, Structural Reform Injunctions

Publication Citation

Margo Schlanger & Pauline Kim, The Equal Opportunity Commission and Structural Reform of the American Workplace, 91 Wash. U. L. Rev. 1519 (2014)

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