Title VII, Mediation, and Collective Action
Michael J. Yelnosky | 1999 U. Ill. L. Rev.
Many commentators have noted that existing Title VII doctrine and its enforcement mechanisms fall short of adequately addressing the concerns of employees experiencing employment discrimination. While most of these commentators suggest legislative changes to Title VII or changes within the legislative system, in this article Professor Michael Yelnosky proposes a different approach. Yelnosky proposes a mediation-centered approach to resolving problems of workplace discrimination, and he demonstrates how that approach responds to many of the inadequacies of the Title VII status quo. Yelnosky recognizes that power imbalances between the employer and employee may have a greater effect on mediated outcomes due to the absence of safeguards available in litigation. He proposes that this power imbalance problem might be minimized by involving employee caucuses--employee groups organized around identity lines--in the mediation process. This article considers the benefits and costs related to caucus participation in workplace governance and, particularly, in mediation of discrimination claims. Finding that the benefits exceed the costs, Yelnosky suggests that changes to Title VII antiretaliation law may be necessary to facilitate the development of such groups.
* Associate Professor, Roger Williams University School of Law. Visiting Scholar, New York University School of Law, Center for Labor and Employment Law (1997-1998). B.S. 1982, University of Vermont; J.D. 1987, University of Pennsylvania. Thanks to Laurie Barron, James Boskey, Samuel Estreicher, Diana Hassel, Alan Hyde, and Jonathan Mintz for their comments on drafts of this article. Several students assisted my research: Kate Backes, David Bagus, Donna Dumas, Linda Mathewson, and Richard Morris. Many thanks to them. I am grateful to Dean John Sexton of the New York University School of Law and Professor Samuel Estreicher, Director of the Center for Labor and Employment Law at NYU, for sharing the law school's resources with me. For Barrie.