Comment   |   Volume 161, Issue 5

Confusing the Means for the Ends: How a Pro-Settlement Policy Risks Undermining the Aims of Title VII

By
Robert D. Friedman
161 U. Pa. L. Rev. 1361 (2013)

April 2013










When analyzing cases arising from disputes over Title VII settlements, courts often begin with the proposition that Congress intended to encourage voluntary settlement of employment discrimination claims. As a result, courts resolve many issues attendant to the settlement process with the aim of furthering this policy but without proper consideration of the policy’s effect on the underlying goals of the statute. Although Title VII suits are not settled significantly more than are other claims, approximately seventy percent of all employment discrimination claims end in settlement, creating a potential for the settlement scheme to undermine or, if properly executed, enhance Title VII’s substantive aims. In addition, even before employees bring their claims to court, a significant number of Title VII complaints lodged with the Equal Employment Opportunity Commission (EEOC) are resolved through the EEOC’s mandatory “conciliation” process. In this respect, the pro-settlement policy has yielded its intended result. However, simply counting the number of settlements masks the more complicated (and meaningful) question of whether the pro-settlement policy is truly facilitating compliance with the substantive goals of Title VII.

The frequency of employment discrimination settlements has spawned a growing and scattered body of case law on the enforcement of settlement agreements. Courts have long split on whether to apply federal or state law when considering the validity of a settlement, but their analyses tend to address the issue of a settlement’s validity somewhat narrowly. Courts rarely acknowledge the systemic impact of the push to settle. Similarly, their analyses frequently fail to take account of the considerable substantive and procedural obstacles facing employees who seek to enforce or, in some cases, avoid allegedly invalid settlements.

This Comment attempts to connect these two distinct but related problems—the frequency of settlements on the one hand, and the failure of the law governing settlements to account for Title VII’s policy aims on the other—and argues that the adoption of federal common law would provide a mechanism for mitigating the current flaws in the administration of Title VII and connected settlements.

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