Continuing Violations, Disparate Impact in Compensation, and Other Title VII Issues

The article by Brooks, McGinn, and Caryl demonstrates strong advocacy skills and careful case analysis. But with all respect, two-thirds of that paper is simply obstructionist. Procedural and jurisdictional rules should be implemented to secure just and inexpensive determinations on the merits. Their proposals concerning pendent state claims and attorneys' fees are designed to get rid of impecunious plaintiffs without reaching the merits. The consequence of restricting pendent jurisdiction is that most pendent state claims will never be filed. Many plaintiffs cannot afford to try two lawsuits instead of one; Dan McGinn acknowledged as much when he presented the article orally. Plaintiffs who can afford two suits will often decide that it is not worth their effort to file the second claim in a state court