Congress passed the Civil Rights Act of 1964 to provide a comprehensive scheme to battle discrimination. Title VII of the Act was enacted to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. This same Act established the Equal Employment Opportunity Commission (EEOC) to oversee the administration of title VII. While the EEOC has substantial powers, enforcement of the Act is generally through private civil action. A complementary scheme developed among the states with the implementation of state discrimination laws and the creation of state agencies to administer these laws. Thus, title VII was implemented with the intent to supplement rather than supplant state employment discrimination provisions and remedies. This intention is demonstrated by the deferral provisions of title VII, which require the EEOC to defer processing a complaint and to afford the aggrieved party an opportunity to bring her action under state proceedings. Under this scheme, it is possible that each employment discrimination claim will be heard by four separate forums: a state administrative agency, a state court, the EEOC, and finally a federal court. In 1982, the Supreme Court attempted to settle some of the remaining issues in Kremer v. Chemical Construction Corp. In Kremer, the Court held that a charging party loses the right to sue under title VII in federal court by pursuing a state court review of an adverse deferral agency determination. This decision raises a number of new issues as well as results that seem antithetical to the purposes and intentions behind title VII. It also has far-reaching implications for lawyers who pursue employment discrimination claims and try to ensure aggrieved parties an opportunity for a de novo judicial hearing on the merits of their discrimination claims. This Note addresses the issues raised by the Court in Kremer as well as outline the effect Kremer will have on legal strategy. It also states a proper rule the Court should have adopted to avoid some of the problems inherent in its decision.
Douglas R. Hart,
Res Judicata, Collateral Estoppel, and Title VII: Tool or Trap for the Unwary? Kremer v. Chemical Construction Corp., 102 S. Ct. 1883 (1982),
62 Neb. L. Rev.
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