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"Equal Opportunity Employment Restoration Act"

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S. 3317, introduced by Al Franken, is intended to undo Wal-Mart v. Dukes, but is largely an incoherent mess that strips both plaintiffs and defendants of important constitutional protections through a "group action" process replacing Rule 23; it is of dubious constitutionality. As Andrew Trask points out in a similar critique,

it appears that the primary benefit of this bill is rhetorical: it allows Democratic legislators to claim that they are standing up for civil rights, while not really standing a chance of amending Rule 23 in any significant way. Instead, they can claim that they tried to address the primary talking points of Dukes critics, and were stymied.

So Senator Franken's proposal is a competent political tactic, but would make for a lousy solution to civil rights problems.

The bill does effectively create a substantive right to quotas by essentially prohibiting any other defense to an employment discrimination claim in front of the wrong judge.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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