Document Type

Article

Publication Date

2004

Abstract

As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead, while countries have struggled, individually, to devise processes that meet a variety of needs, none seems to be satisfied with its efforts. Litigation is slow, costly, and impersonal. Informal processes such as conciliation, mediation, arbitration, or administrative processes aim to be faster and cheaper, but may not result in adequate enforcement of discrimination laws. This Article suggests that by comparing the procedural approaches taken by three countries we can learn a great deal about why it has been so difficult to devise a good procedure for resolving employment discrimination disputes and also gain some significant insights regarding how to better handle such disputes in the future. Specifically, it provides an in-depth examination of how the United States, Britain, and Australia have attempted to handle employment discrimination disputes. This original comparative research reveals that policy makers in each country have typically focused only or primarily on what has and has not worked in their own jurisdiction, and have often devised systems that oscillate, somewhat predictably, between formal systems such as litigation and informal systems such as conciliation. Through examining ten aspects of employment discrimination claims that are common to all three jurisdictions, the Article then offers several key prescriptive insights. First, because it is highly unlikely that any single dispute resolution process will be able to serve all of our public and private interests in resolving employment discrimination claims, it is instead desirable that a jurisdiction offer multiple processes. Second, in designing each of these processes policy makers should focus explicitly on the public and private interests that have been identified, and try to design each process to serve certain of the interests. Whereas public interests are often best served by litigation, private interests are instead often best served by mediation or conciliation. Third, policy makers need to focus on how the selection is made among processes, and by whom, to protect as many of the identified interests as is possible. Finally, this Article contends that while these insights have been drawn from the context of employment discrimination, they will also have applicability to disputes arising in other substantive contexts.

Publication Citation

78 Tul. L. Rev. 1401 (2004).