UCLA School of Law

This brief essay introduces four articles on Title VII’s systemic disparate treatment theory in the wake of Wal-Mart v. Dukes. I argue that the core difficulty is to combine a robust account of systemic discrimination with a clear connection to the paradigm of disparate treatment in individual cases. Two intuitive, yet quite different, concepts that do so are what I call “connective” and “dispersed” disparate treatment. Connective disparate treatment occurs when employees’ race or sex affects the employer’s company-wide decisionmaking about organizational practices; those practices - at the extreme, a policy requiring disparate treatment - connect together individual employment decisions into a systemic pattern. In contrast, dispersed disparate treatment occurs whenever there is disparate treatment in large numbers of individual employment decisions, regardless of whether there is any company-wide connective practice. Wal-Mart erects a formidable procedural barrier to dispersed disparate treatment claims, yet limiting systemic claims to connective disparate seems unduly narrow and contradicts the Court’s prior jurisprudence.

The way forward lies in a theory that grounds liability in an employer’s connective practices, yet does not require that those practices themselves constitute disparate treatment. Instead, employers must be held responsible for connective practices when they enable individual disparate treatment to take root and proliferate. Doing so requires developing accounts of negligence or strict liability that conceptualize discrimination more broadly, as we recently have seen in the hostile work environment context.