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32 Berkeley J. Emp. & Lab. L. 395 (2011)
The Future of Systemic Disparate Treatment Law

handle is hein.journals/berkjemp32 and id is 399 raw text is: The Future of Systemic Disparate Treatment Law Tristin K. Greent At the same time that it becomes increasingly clear that organizational change is crucial to reducing workplace discrimination, longstanding theories of systemic discrimination are under attack. This Article exposes the threat posed to the mainstay of systemic theories-systemic disparate treatment theory-under which plaintiffs frequently use statistics (along with other evidence) to establish that discrimination is widespread within the defendant organization. The threat to private enforcement of Title VII against systemic disparate treatment was starkly evident in the recent battle over class certification, a battle largely lost by plaintiffs in Wal-Mart v. Dukes, but the current threat to systemic disparate treatment law goes much deeper than whether private plaintiffs will be able to obtain class certification-it goes to the shape of the substantive law. This Article uncovers the policy-required view of entity responsibility that underlies the majority opinion in Wal-Mart v. Dukes and exposes the implications of that view for the future of systemic disparate treatment law. It also shows how an individualistic model of organizational wrongdoing more broadly has led to under-theorizing, even mis-theorizing, of entity responsibility for systemic disparate treatment. Drawing on developments in other areas of organizational wrongdoing, the Article advances a context model as theoretical grounding for existing systemic t Professor of Law, University of San Francisco School of Law. This article was the subject of the Working Group on The Future of Systemic Disparate Treatment Law, which met at the University of San Francisco School of Law on March 18, 2011. Members of the working group include me and Noah Zatz (co-organizing), Richard Ford, Melissa Hart, and Michael Selmi. Papers from the working group are published together in this issue of the Berkeley Journal of Employment and Labor Law. In addition to the working group members, especially Noah Zatz, I owe thanks to many people for conversations and comments on drafts, including Catherine Albiston, Carl Coleman, Joshua Davis, Rachel Godsil, Tim Iglesias, Solangel Maldonado, Stephen Rich, Sandra Sperino, Charles Sullivan, Michelle Travis, and Michael Waterstone. The article also benefited from feedback at the Colloquium on Recent Labor and Employment Law Scholarship, faculty workshops at the University of North Carolina School of Law, Loyola Law School, Los Angeles, and the University of San Francisco School of Law, and from conversations with Jocelyn Larkin, Executive Director of the Impact Fund, and David Offen-Brown, Supervisory Trial Attorney for the EEOC. The project was generously supported by the University of San Francisco School of Law. 395

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