Addressing Race Discrimination under Title VII after Forty Years: The Promise of ADR as Interest-Convergence
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The thesis of this Essay is that litigation and legal enforcement strategies, including any new legislation that would force employers to address discrimination in the workplace, should no longer be the focus of civil rights activists. Instead, those seeking to root out race discrimination in the workplace must focus on including non-legal options such as alternative dispute resolution (ADR) activities. Any new strategies must address the concerns of workplace discrimination and the use of ADR in a way that merges those issues with the interests and incentives of employers. Derrick Bell has referred to the merger that forms when the interests of the majority match those of the minority as involving an interest-convergence principle. This Essay will explore measures where ADR can be used as a mechanism to focus on racial justice in the workplace while also acting as a tool to accomplish employer incentives as interest-convergence. Part I of this Essay addresses the enforcement of Title VII from its promise-filled origins up to its currently grim results in the courts. It also highlights recent approaches that embrace ADR as a viable option in response to the 1991 amendments to Title VII, which allowed a right to a jury trial along with compensatory and punitive damages in certain cases. Part II explores the opportunity for interest-convergence as a means of dealing with the significant problems of race in our society that infect the workplace; the opportunity for interest-convergence arises out of strong interests in diversity, espoused by a number of leading Fortune 1000 companies. Part III proposes certain areas of focus to merge the interests of employees seeking racial justice in the workplace under Title VII and through the use of ADR with incentives that many corporate employers have shown that they are ready to accept by embracing diversity. Finally, this Essay concludes that future enforcement under Title VII must focus on a balance of allowing various procedures (courts and ADR) to resolve discrimination claims as part of an overall creative approach in designing workplace conflict resolution systems. These systems can function according to the underlying principle of interest-convergence through dispute resolution processes that allow for the betterment of Black workers and society as a whole while matching these goals with incentives for employers to pursue these matters as well.
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