Marcia L. McCormick

The Truth is Out There: Revamping Federal Antidiscrimination Enforcement for the Twenty-First Century

Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nations workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting as prosecutor occasionally, is not working. Instead, we need an agency to investigate broadly, issue fact-finding about the state of the nations workplaces, adjudicate discrimination claims, and promote good practices and voluntary compliance, through something of a hybrid between a truth commission, legislative hearing, and adjudicative agency.

It's About the Relationship: Collaborative Law in the Employment Context

Work is central to American life and drives us in fundamental ways. And the workplace, as a result, dominates our lives. We are spending ever greater amounts of time in the workplace and less time in civic and social engagements. As a consequence, our relationships at work have become so significant that they are nearly as important to us as our family relationships. In fact, the employment relationship is similar to the family relationship in the emotional support from coworkers it can provide and in the financial support it provides. Because the employment relationship is so common and psychologically so important to us, employment disputes are especially difficult and sensitive for both employers and employees. Moreover, disruptions in employment wreak real financial havoc in peoples lives and can significantly disrupt the operations of a business as well. Given these factors, trials, with their delays, uncertainties, and expenses look less attractive as a method dispute resolution than they otherwise might. From the perspective of the courts, the potential caseload posed by employment disputes also makes trials an unattractive choice for resolution. Accordingly, alternative forms of dispute resolution (ADR) play a dominant role in resolving and avoiding labor and employment conflicts. This paper, building on the comparison of the employment relationship to the family relationship, focuses on one newer form of ADR, the collaborative law process, and explores its application in the employment context. Collaborative law, as the name implies, is not adversarial and has been used in family law where continuing relationships are an important outcome of the resolution process. Part two of this paper outlines the various forms of ADR, part three details the specific features of the collaborative law process, and part four suggests some possibilities and limitations of using that process in the employment setting. Although collaborative law will probably not transform labor and employment conflicts the way it has some family law matters, there is, nonetheless, significant value to be gained by adapting it.