Melissa Hart


This paper will argue that the changes wrought by the Civil Rights Act of 1991 do not in fact pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right in the Civil Rights Act of 1991 may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class action either impermissible under Rule 23 or violative of due process or Seventh Amendment jury trial rights. Courts and commentators who insist that these changes are fatal to certification of employment discrimination classes are incorrect. The strength of their conviction, however, raises the question whether other factors might be motivating the hostility confronting employment class certification.

Section I of this paper will consider the pre-1991 Title VII class action, and the main concerns that courts focused on in determining whether to certify these classes. Section II will describe the Civil Rights Act of 1991, the potential pitfalls this new law created for the Title VII class action, and how courts have responded to these concerns. This section will argue that neither the new remedies nor the jury trial right that Congress added to Title VII provides sufficient justification to deny certification in most employment discrimination class actions. Procedures that have long been available to judges under Rule 23 – particularly judicial oversight and management of the class proceedings as well as bifurcation of class-specific and individual liability issues – are appropriate to protect against potential constitutional violations. Section III will argue that courts now refusing to certify class actions in the employment context are motivated in substantial part by other concerns: a widely credited notion that class actions in general are unfair; the perception that employment discrimination class actions are no longer necessary for full enforcement of civil rights; and a deep uncertainty about the merits of certain claims being pursued in employment discrimination suits today.