What are the potential disadvantages of entering into a consent decree?
It is important to note that consent decrees have some potential disadvantages.
Involves Compromises. Entering into any settlement involves compromises. Regardless of whether it is a private settlement or a consent decree, it is unlikely that you or your company will get all you want. However, it is as unlikely that neither of you will give up as much as you are afraid to lose through litigation. Even if your employer is blameworthy, it will probably do better by settling than through litigation. As for you, it might afford you more or less monetary and/or non-monetary relief than litigation might afford. Thus, in avoiding litigation, you and your employer might have to meet somewhere between where the court would place you.
Risk of Ambiguities. There is also the risk that your desire to reach a compromise may conflict with your desire to minimize court costs. In order to finalize negotiations as soon as possible, you might be tempted to leave in ambiguous language that you think you would be able to easily resolve later, if disputes over them come up. However, by doing this, you create the danger of additional litigation costs for yourself because unless the ambiguities can be resolved informally, court intervention will be necessary. This problem is avoidable by carefully considering every provision of your consent decree with your employer so that the whole decree is clear to both of you, as well as to the court. Furthermore, because the court is likely to be interested in avoiding additional implementation expenses for itself, it may step in to help avoid ambiguities that may cause later disputes between you and your company.
May be Less of a Deterrent. Some people think that an order from the court after litigation is more effective in deterring future sex discrimination than when parties settle by consent decree. This is because an employer does not have to admit guilt and the court does not have to decide guilt before parties enter into a consent decree. However, it is definitely conceivable that other businesses in similar social or business community as your employer may be influenced to alter their behavior to conform to your consent decree.
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