Recommended Citation

Brooke D. Coleman and Elizabeth G. Porter, Reinvigorating Commonality: Gender and Class Actions, 92 N.Y.U. L. Rev. 895 (2017), https://digitalcommons.law.uw.edu/faculty-articles/101

Authors

Brooke D. Coleman
Elizabeth G. Porter, University of Washington School of LawFollow

Reinvigorating Commonality: Gender and Class Actions

Publication Title

New York University Law Review

Document Type

Article

Abstract

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time, however, feminism’s influence waned as critics from within and without the movement attacked fundamental tensions inherent in the feminist project and as so-called identity politics fell out of fashion. [para] This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits—whether brought by individuals of any gender or by physicians—have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a critique of the technology sector, “Class action lawsuits can force industry-wide change, even in the most entrenched, male-dominated industries.”