Vanderbilt Law Review


Susan E. Powley

First Page



In April 1990 in Yellow Freight System, Inc. v. Donnelly, the United States Supreme Court resolved a split among the circuit courts and held that state and federal courts have concurrent jurisdiction over Title VII claims." This decision strengthens a presumption that state courts, as a whole, can be equal to their federal counterparts in adjudicating federal employment discrimination claims. It also further complicates the process of forum selection for employment discrimination litigants. Because plaintiffs now may present Title VII claims in state court, the doctrine of res judicata will bar any subsequent presentation of Title VII claims in federal court that the plaintiff could have raised in a prior state court action. Plaintiffs who wish to pursue related state claims in state court without risking removal may have to abandon their Title VII claims to protect their choice of forum.' Consequently, the informed use of the forum selection process in making that choice is increasingly important. Now more than ever, litigants need an analytical framework to guide them in the forum selection process.

Scholars and commentators consistently have debated the proper role of the state and federal courts in the adjudication of federal claims. One can trace the origins of this debate to the Framers of the Constitution In recent years this debate often has focused on the issue of parity: whether or not the state courts, as a whole, provide adequate and trustworthy forums for litigants seeking protection of federal rights.' The parity debate raises issues significant to the determination of the proper roles of the federal and state courts in enforcing federal rights. Although no consensus has emerged, the continuing debate is likely to influence the allocation of judicial resources by judges and legislators alike.

The Yellow Freight decision forces employment discrimination litigants and their attorneys engaging in the process of forum selection to confront many of the same issues raised by the parity debate. These issues, however, have a different significance for individual litigants confronted with a choice between state and federal forums. For litigants, the important inquiry is not whether state courts as a whole are as capable as their federal counterparts in protecting federal rights, but whether, in a given case, a particular state court or a particular federal court is more amenable to the claims or defenses litigants may raise. Thus, to be of value to individuals in developing a framework for forum selection, the parity debate must move to another level. Although the central question remains whether one forum is better than another, a pragmatic approach to forum selection requires an individualization of the parity debate.