Title

A Modern Theory of Direct Corporate Liability for Title VII

Document Type

Article

Publication Date

2010

Abstract

Something is missing from Title VII - a modern and fully functional theory of direct employer liability for individual discrimination claims. Courts largely focus on finding employers indirectly liable for discrimination through the acts of their agents, rather than viewing the employer as the culpable actor in appropriate circumstances. This Article posits that five major problems with Title VII can be eliminated or reduced by once again recognizing the importance of direct employer liability and by re-theorizing direct liability using modern conceptions of corporate character.

Borrowing the emerging concept of corporate character from criminal law and corporate law scholarship, this Article attempts to demonstrate how employment discrimination law can benefit from a fuller conception of direct liability. Undergirded by a realist view of the corporation, the concept of corporate character posits that the corporation has a life and intent of its own, separate from the individual actions of its agents. This Article combines current scholarship regarding corporate intent in the corporate and criminal contexts with a fair interpretation of Title VII's text, case law, and theoretical underpinnings to demonstrate that direct corporate liability-as retheorized in this Article-can be a viable, and powerful, tool in employment discrimination cases.

In Part I, this Article provides the first, comprehensive historical account of agency developments under Title VII, which helps to explain the statute's present overreliance on indirect liability. Part II continues by reviewing the employment discrimination literature to outline the major difficulties caused by overreliance on derivative liability. Part III outlines the corporate character doctrine being developed outside the employment discrimination context. Part IV demonstrates how this concept can be imported into the Title VII context, consistent with Title VII's statutory text and case law.

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