Elon Law scholar: Time to rethink how courts handle workplace discrimination

In a newly published article, Professor Catherine Dunham argues that a “win at all cost” approach to gender discrimination lawsuits in the United States does a disservice to employees and employers alike.

Professor Catherine Ross Dunham

Who would have thought that Major League Baseball’s approach to salary disputes might be an ideal model to follow for resolving claims of gender discrimination in other workplaces?

When a player and a team can’t reach an agreement on compensation, both sides go before a panel of three arbitrators with relevant expertise. The player proposes a salary. The team proposes a salary. Both use data to make their case. The panel decides between the two options – and there is no compromise or third possibility.

The process usually takes half a day. The decision is final, and both the player and team understand the process. The team culture remains intact.

As Elon Law Professor Catherine Dunham writes in a new journal article, similar processes – which remove “win at all cost” mentalities and help preserve reputations – would benefit other professions as “workplace litigation should value the equitable function of the workplace over the individual worker, thus reducing the need for workplace litigation focused on individual harm and litigation success.”

And that provides a better outcome for everyone involved in a dispute, she concludes in “Social Truths in the Workplace: How Adversarialism Undermines Discrimination Litigation,” published in the latest issue of the University of Maryland Journal of Race, Religion, Gender and Class.

Dunham explains how the current system, where discrimination claims go before a jury or are funneled into mediation in an adversarial process, disincentivizes improvements to workplace culture. Why would the defendant in a workplace gender discrimination lawsuit want to change a system where the improvement itself lends credence to the plaintiff’s claim?

The social truth in most discrimination claims often lies in the eye of the beholder: what might be viewed by corporate leadership as a fair or equitable environment might not be perceived the same way by employees who come from different lived experiences.

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It wasn’t always this way. Dunham’s article traces the history of civil litigation in the United States and its genesis in the quasi-inquisitorial model of Chancery court. The early years of the Republic saw esteemed figures in many communities probe two sides of a dispute before issuing a decision. Attorneys played no role.

As lawyers took more prominent positions in public life toward the mid 19th century, private parties retained their services to prevail in the court, often risking both fortune and reputation to secure legal victories.

Yet victories in the courtroom don’t often lead to changes in the conditions that led to litigation. For Dunham, progress in the workplace – where different people, with different backgrounds, might not perceive conditions with the same values – will almost certainly require a shift in dispute resolution.

“If workplace social truths are challenged in a case-by-case adversarial manner the underlying sources of those workplace truths are ignored, thus not improved,” Dunham writes. “Furthermore, if the employer prevails, the workplace culture is validated by the litigation process, thus obviating any need for culture change.

“Civil litigation is, at its core, shortsighted.”

Dunham, a member of Elon Law’s charter faculty, is an expert in civil procedure and civil litigation, having authored articles on procedural doctrine and contributing to the annual Survey of Federal Class Action Law: A U.S. Supreme Court and Circuit-by-Circuit Analysis.

Her scholarship has also explored topics related to gender equity and implicit gender bias litigation, analyzing implicit bias-based claims specifically in the context of Title VII class action litigation.

Dunham’s article “Reputation Evidence in the Age of Instagram” was awarded the 2021 Edward D. Ohlbaum Paper in Advocacy by the Temple Law Review. She has served as a trial analyst for several major news outlets, including NBC and CNN, and she is a prior recipient of the ABA Smyth-Gambrell Award for Teaching Professionalism.