Effective Deterrence v Accessible Remedies: What Not to Borrow from US Discrimination Law

Abstract

At a time when the UK consults on the appropriate powers and mission of a new single equality commission, the fight against discrimination must avoid unintentionally eroding the ability of the employment tribunals to deliver accessible dispute resolution to individual victims of discrimination. This article analyses the US system for resolving employment discrimination disputes to demonstrate that dispute resolution mechanisms can be and are used in pursuit of two different and potentially conflicting projects: the project of forcing social change by eliminating structures of discrimination in society as a whole (the ‘social change’ project), and the project of providing a forum for the individual victim of discrimination to seek a quick, cheap, accessible and satisfying remedy (the ‘dispute resolution’ project). In the US, the social change project has appropriated the formal system for employment discrimination dispute resolution by emphasizing punitive (exemplary) damages, class action lawsuits, and government funded strategic litigation to send strong deterrent messages, with the result that that system has become essentially inaccessible to almost all individual victims with small claims. This negative example is offered as a warning that the fight against discrimination in the UK must carefully consider the effects of introducing ‘modern’ enforcement tools and strategic equality commission litigation to the employment tribunals on the ability of this forum to deliver the accessible individual remedies for which it was designed.