This paper is the second in a series of two papers addressing the influence of priors in antidiscrimination law. The first paper, Hidden Priors, argued that Bayesian probability theory could harmonize two divergent strands of scholarship on the systemic disparate treatment theory of discrimination. This Bayesian approach challenges the conventional use of statistical evidence in systemic discrimination cases. Critically, the Bayesian approach acknowledges the operation of prior information about the likelihood of unlawful discrimination when evaluating statistical evidence. While a handful of scholars have contemplated a transition to a Bayesian antidiscrimination law, there has been no scholarly treatment of the second-order questions raised by the recognition of Bayesian priors. These second-order questions were highlighted at the conclusion of Hidden Priors. They include hard, but not intractable, questions such as: Whose priors matter? How should priors be incorporated into civil litigation procedures? And, what are legitimate sources of priors? The lack of attention to these questions may explain the stubborn refusal of courts, litigants, and employment law scholars to acknowledge the role of priors in systemic discrimination cases. This second article in the series is meant to spur a healthy scholarly discussion of the second-order questions, even if it cannot provide definitive answers to them. This article argues that the procedural devices of our civil litigation system – though imperfect – are actually well-suited to properly allocate responsibility among legislatures, appellate judges, trial judges, and fact-finders for estimating the prior likelihood of discrimination. This article demonstrates that, once acknowledged, priors can be transparently managed by thoughtful implementation of these procedural devices.

Did the Court’s procedural decision in Wal-Mart Stores, Inc. v. Dukes undermine the substance of the systemic disparate treatment theory of employment discrimination? The answer to that question hinges on understanding the theoretical foundation for what one scholar calls the “most potent and least understood of the various Title VII causes of action.” The current scholarly efforts to understand systemic disparate treatment law can be sorted into two distinct strands – methodological and contextualist. Scholars in the methodological strand question whether statistical techniques currently used by courts are sufficient to support an inference of discrimination. In the contextualist strand, scholars urge a conceptual expansion of the systemic disparate treatment theory that would impose liability on employers for wrongdoing located at the organizational level, rather than simply aggregating individual-level claims. These two strands have advanced independently, with scholars in each strand often overlooking the implications of progression in the other. This Article is the first attempt to unify these two scholarly strands. It does so by exposing the inescapable role of hidden Bayesian priors – preconceptions about background rates of discrimination – in the interpretation of statistical evidence. Taking a Bayesian view, the shortcomings of traditional statistical evidence identified by methodologists are not fatal. Yet, the Bayesian view also provides the conceptual space needed for further development of the organizational approach advanced by contextualists. The Wal-Mart decision presents an opportunity to radically rethink this misunderstood area of antidiscrimination law, and this Article takes the first step in developing of a coherent theory of systemic disparate treatment that embraces Bayesian priors.

The United States’ system for regulating employee exposures to hazardous chemicals is broken. Absent regulation, the labor market fails to produce efficient levels of precaution against chemical exposures. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures thwart the market’s ability to produce efficient risk/wage tradeoffs. These same characteristics permit employers and chemical manufacturers to externalize the costs of injuries caused by chemical exposures. The current U.S. regulatory system, including a combination of OSHA regulations and state workers’ compensation programs, is not correcting the labor market’s failure. The result is a level of workplace chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low. The reforms proposed in the literature to date do not harness the financial incentives of the least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This Article takes the search for a solution in a new direction by using state workers’ compensation laws to capitalize on the incentives of chemical manufacturers and employers. The Article argues that state workers’ compensation laws should be amended in two ways: (1) shift the default burden of proof on causation to the respondents, but only in cases where there is no applicable OSHA exposure limit, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation proceedings for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. The result would be a new push for OSHA chemical exposure limits by chemical manufacturers and employers – the entities in the best position to provide the toxicity and precaution information necessary to support OSHA regulations.

The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International B’hood of Teamsters, 431 U.S. 324, 360-61 (1977), the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a “pattern or practice” of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about whether the systemic disparate treatment theory can be utilized by plaintiffs in (1) ADEA cases, (2) ADA cases, (3) hostile work environment cases, and (4) private individual (non-class) discrimination cases brought under any of the antidiscrimination statutes. The development of a coherent approach to systemic disparate treatment law is becoming increasingly important. Since 2006, the EEOC has made pursuit of its “Systemic Initiative” a top priority in its enforcement strategy. Thus, difficult questions about the application of the systemic disparate treatment theory will continue to surface.

In this paper, I take a first step toward bringing order to the systemic disparate treatment theory. I return to the foundations of the systemic disparate treatment theory in order to formulate a set of guiding principles for resolving the issues listed above. Drawing upon economic models of optimal allocation of burdens of proof in civil litigation and an application of Bayesian probability analysis, I argue that the proper extent of the systemic disparate treatment theory depends on three critical considerations: (1) the background prevalence (or prior probability) of the type of discrimination alleged; (2) the relative strength of the evidentiary signal provided by the proffered statistical evidence; and (3) the parties’ relative access to evidence on the element of discriminatory intent. Applying the principles I develop in this article, I conclude that the Teamsters systemic disparate treatment theory should be available to plaintiffs in ADEA, ADA, and individual (non-class) cases, but not in hostile work environment cases.

Systemic employment discrimination cases, including private class actions and EEOC "pattern or practice" actions, have been used since the 1960s to redress overt forms of discrimination in the workplace. Today, however, there is an emerging area of systemic employment litigation that holds the potential to play an important role in combating the sources of structural or "second generation" discrimination: systemic harassment litigation. Unfortunately, litigants and courts are generally confused about how systemic harassment claims should be pursued and litigated. Harassment cases do not fit the mold for "pattern or practice" cases outlined by the Supreme Court in International Brotherhood of Teamsters v. United States, leaving the federal courts divided over key substantive and procedural issues in systemic harassment cases.

In this Article, I propose a litigation framework and enforcement strategy for systemic harassment cases that is founded upon the statutory language of Title VII. By carefully observing the distinction between those provisions of Title VII aimed at protecting the interests of individual "aggrieved persons" and the separate provisions aimed at protecting the public interest, a sensible litigation framework can be formulated for systemic harassment cases. Failing to observe this statutory distinction has led the EEOC to pursue an ineffective enforcement strategy. The EEOC's focus in systemic harassment cases has been to obtain monetary damages for individual victims under an increasingly outdated rules-enforcement paradigm, rather than to obtain meaningful prospective relief. As a result, the EEOC has missed an important opportunity to begin addressing structural forms of discrimination. I propose an alternative public enforcement strategy for systemic harassment cases that focuses on obtaining effective consent orders that will usher in structural reform and will result in a more efficient allocation of enforcement resources.

The Lilly Ledbetter Fair Pay Act clarified the application of the EEOC charge filing period for purposes of determining whether a claim of compensation discrimination is timely. But a number of timeliness questions remain unanswered for claimants alleging discrimination on grounds other than compensation discrimination. This Essay examines one question left open after the enactment of the Ledbetter Act, specifically: When, if ever, does the EEOC charge filing period begin to run in cases where the plaintiff alleges that defendant engaged in a "pattern or practice" of unlawful "discrete acts" of discrimination? In this Essay, I consider the difficulties that arise when attempting to apply the seemingly straightforward timely-filed charge requirement to pattern or practice cases. I evaluate the policy arguments supporting the competing interpretations of the timely-filed charge requirement as applied to pattern or practice cases, and I suggest a number of possible legislative solutions that could provide certainty to employers and potential claimants.