Respondents Brief — General Telephone Co. of Northwest v. EEOC

Supreme Court brief1980

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FOR ARGUMENT

No. 79-488

Supreme Court, U.S.

FILED

MAR 4 1980

ICHAEL RODAK, JR., CLERK

In the Supreme Cont of the United States

OCTOBER TERM, 1979

GENERAL TELEPHONE COMPANY OF THE NORTHWEST,

INC., ET AL., PETITIONERS

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

WADE H. MCCREE, JR.

Solicitor General

LAWRENCE G. WALLACE

Deputy Solicitor General

KENT L. JONES

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

LEROY D. CLARK

General Counsel

JOSEPH T. EDDINS

Associate General Counsel

LuTz ALEXANDER PRAGER

VINCENT BLACKWOOD

Attorneys

Equal Employment Opportunity Commission

Washington, D.C. 20506

I RIE ersicsic terrence eceaenae 1

PI icincienitsctiniseccecomanindeaan akieioee 1

QUOBEION TOTOROTIOG aoc cecevecicncnsicnsseieenicreencssoninns ae

Statute involved 2... Wetantee e aee cae #

I i cisccrcshccccnsevipnintedananiatcnetaaniiinad 2 |

Summary of argument OR RO ETC

Argument:

Enforcement actions brought by the

government under Section 706(f)(1) of

Title VII of the Civil Rights Act of 1964

are not “class actions” subject to the re-

quirements of Rule 23 of the Federal

Rules of Civil Procedure ....................-------- bbe

A. Enforcement actions brought by the

KEOC under Section 706(f)(1) are

not class actions even though relief

may be sought for a discrete group

of affected private citizens ................. 8

tion 706, the Commission acts to

promote the public interest in

equal employment opportunity

and not merely to advance the

private interests of affected citi-

—

1. In initiating litigation under Sec- ;

Argument—Continued

2. A public agency that Congress

has authorized to bring litigation

to enforce federal law need not

be certified as a “class represent-

ative” of the affected members of

RRR: ASOD REUAE Siren

3. The legislative history of the 1972

amendments to Title VII does not

indicate that Congress intended

Rule 23 to apply to Commission

enforcement litigation -.................

B. District courts possess ample power

under Section 706(g) to ensure pro-

cedural fairness to all persons con-

cerned in the Commission’s litiga-

GIRDER... -.sesscsacssnecnisnateovedeeaesemnecininnsia

IT ac ncncscnsnsivnnincsonianiadiabiacscacmabcamaiies

CITATIONS

Cases:

Air Line Stewards and Stewardesses As-

sociation v. American Airlines, Inc.,

ID TE TN ovikiiccnsicninccccebarieuancae

Albemarle Paper Co. v. Moody, 422 U.S.

__UREIRC UMUNMN meee sce ne PT Ree di) ORS

Alexander v. Gardner-Denver Co., 415

Chala, SOME. Cadi idbi debra mcalaoiliceeh eben atetimaatetaeds

Atlantis Development Corp. v. United

OUOG, TO Wee Oe pk eto

Blue Bell Boots, Inc. v. EEOC, 418 F.2d

OUI isiicditnennkt coicstilolag eaaeacmioumasem bene iates

Donaldson v. Pillsbury Co., 554 F.2d 825,

cert. denied, 434 U.S. 856 -.....................

Page

34, 36

Cases—-Continued Page

Doninger v. Pacific Northwest Bell, Inc.,

Ne SIRE ST aR eC 34, 35

East Texas Motor Freight v. Rodriguez,

SE eG TIE sacaistiniccssisonaidaleindabedaaibateniedamebees 22

EEOC v. Akron National Bank & Trust

A Fr Ey MI ciccrttctnecngsnonancs . 22, 23

EEOC v. D.H. Holmes Co., 556 F.2d 787,

cert. denied, 436 U.S. 962 -.........000...... 14

EEOC v. Detroit Edison Co., 515 F.2d

REIS IES EEN More AN 28

EEOC vy. EI. duPont de Nemours and

ae a fA | gee Ore 11

EEOC v. General Electric Co., 532 F.2d

SSE IAL AI SA aR SCRE 10-11, 12, 13

EEOC v. Hearst Corp., 553 F.2d 579........ 13

EEOC v. Huttig Sash & Door Co., 511 |

EK Pee ene eon 13

EEOC vy. Kimberly-Clark Corp., 511 F.2d

1352, cert. denied, 423 U.S. 994 _....... 11,138

EEOC v. Louisville & Nashville R.R., 505

gf SBRIEASS 2. “Seg eles 13

EEOC v. McLean Trucking Co., 525 F.2d

RD ideals dedtbacpebinieletidigsiniaicandsvsneveniapioaccnecses 13

EEOC v. Occidental Life Insurance Co.,

535 F.2d 538, aff’d, 482 U.S. 355.0... 12

EEOC vy. Pinkerton’s, Inc., 14 Fair Empl.

I NS ccc ia 19

EEOC vy. Raymond Metal Products Co.,

17 Fair Empl. Prac. Cas. 206 ................ 19

EEOC vy. Schlueter Mfg. Co., 17 Fair

ee, OO, CO Oe en 19

EEOC v. The Bailey Co., 563 F.2d 439,

cert. denied, 435 U.S. 915 ...................... 11

EEOC vy. Whirlpool Corp., 80 F.R.D. 10.. 22

Cases—Continued Page

Graniteville Co. v. EEOC, 488 F.2d 32.... 11

Hansberry v. Lee, 311 U.S. 32 ................-- 20

Johnson v. Nekoosa-Edwards Paper Co.,

558 F.2d 841, cert. denied, 434 U.S.

ARG a MEER Nip econ ET er 11-12, 13

Katz v. Carte Blanche Corp. 496 F.2d

747, cert. denied, 419 U.S. 885 ............. 35

McClain v. Wagner Electric Corp., 550

I Te ria ectahaneinemineabes 23, 34

NLRB vy. Fant Milling Co., 360 U.S. 301.. 11

NLRB vy. Rutter-Rex Manufacturing Co.,

I I icpsicncrcssedsiaeergnealenbacdntenbnntericcns 16, 17

National Licorice Co. v. NLRB, 309 U.S.

I -Sasncidssiaibhiinalioneesdieaiata tailed laecdaaslgsblamcnnesiciaioe 11

Porter v. Warner Holding Co., 328 U.S.

a 14, 15, 16, 17, 19, 25, 28, 83, 34

Sam Fox Publishing Co. v. United States,

St IIE sccatecscsdestesetedicbiaitshcnseammsincinanatansioniona 14

Trbovich vy. United Mine Workers, 404

Mii ET ai dedcincdiciesommaeeabocdiiianinassaintiadihes 24

United States v. Allegheny-Ludlum In-

dustries, Inc., 517 F.2d 826, cert. de-

ge Re | eee eee 20, 34, 35

United States v. Chesapeake & Ohio Ry,.,

471 F.2d 582, cert. denied, 411 U.S.

SE ERT Oe OR BNET oe EEO EO 28

United States v. Ironworkers Local 86,

443 F.2d 544, cert. denied, 404 U.S.

SRNR ES Shean ne Sin NET 28

United States v. N.L. Industries, Inc., 479

og LARA onne see moe Ie 28

United States v. St. Louis-San Francisco

Ry., 464 F.2d 301, cert. denied, 409

ge ENA NRT rene CRE ee 28

Cases—Continued Page

United States v. Trucking Employers,

is Fre ee I hie eis 35

Wetzel v. Liberty Mutual Insurance Co.,

508 F.2d 239, cert. denied, 421 U.S.

PE sabia eeniliad cn ticketdaeiiaaanale bine bisticenciccihaasinset 20

Williamson v. Bethlehem Steel Corp., 468

F.2d 1201, cert. denied, 411 U.S. 931-... 20, 28

Wirtz v. Jones, 340 F.2d 901 .........2.. 18

| Statutes and rules: Page

Age Discrimination in Employment Act

of 1967, 29 U.S.C. 621, et seg. .............. 11

Be EE TU rset teciccessecsces 18

Civil Rights Act of 1964, Title VII, 42

U.S.C. 2000e, et seq.:

Section 706, 42 U.S.C. 2000e-5 ........... passim

Section 706(a), 42 U.S.C. 2000e-5

IN silasiatinsanshitatas iniasveiatiandibdiasbiamdaticmende 4,7,9

Section 706(f) (1), 42 U.S.C. 2000¢-

Ef Ce eee See passim

Section 706(g), 42 U.S.C. 2000e-5

RAS TR ee 5, 6, 10, 16, 19, 25, 32, 35

Section 707, 42 U.S.C. 2000e-6 .....27, 28, 29,

30, 31, 32

Section 707(a), 42 U.S.C. 2000e-6

Ean ee ne SAAR NAC So ROOT OF Tee ae 27

Equal Pay Act of 1963, 29 U.S.C. 206

LS ED RRA RE TOES heer ond ode a Meer eel LNW aE 18, 34

Fair Labor Standards Act of 19388, 29

U.S.C. 201, et seq.:

pe, Ree eRe 34

Bs TI Seine sccceindesminaccacitiin 18

Statutes and rules—Continued Page

National Labor Relations Act, 29 U.S.C.

BT I oils cciosablantniduonsllnetinalicnes 11

Occupational Safety and Health Act of

1970, 29 U.S.C. 651, é€ seg. ...................- 11

a I ai cdaneeitnsiesslstidieetnensentsnmntnence 14

Fe I oo issaieihine esistnievciiniserareciceenie 3

PL 2 a: Ee 18

Federal Rules of Civil Procedure:

Rule 23 peieineeibaliubsiasicibaipiadaasescnsal passim

I 21

EE RERR TSR Rene 6, 23

I io isiiniheehanncidccnccinnscbenien 6, 23

I isi at caangualinseshersoansiae 20

I 20

SN III © sic iaieatict sa cnamtenacuesicios 20

Local Rule 23, United States District

Court for the Western District of

EITC PIG NCT SOBER NID ie TEEN 3

Miscellaneous:

Comment, Certification of EEOC Class

Suits Under Rule 23, 46 U. Chi. L. Rev.

IEE ileheevicstinsmdpoasmviccion 14, 20, 22, 31

118 Cong. Rec. (1972) :

EGR SAE ehap nent ae aseonee oe RA 30

ge eirenier Miri on Naser ee LER TC 26

Wiis MIME ice scinsbusiplatesiocalubwiediatieaaaeiabea meas 27

Oi I 7 kaisildleicblieseceinbianaiacan DietecteNataatie ack 30, 31

is SIE | iiscsheslucectaphadndalecel csieetiiclael 21, 30, 31

Ss FREE * scncrnnioussacasissiliubidanonsiibagisinadnamaaet 26

Oi > stdcciiecunieas 5, 9, 10, 16, 24, 25, 29, 32

vil

Miscellaneous—Continued Page

oA escent Coase capsiscenoinsnnsoaeininenunpiichenais 8

i AID. acca ieaninienleisuldanedabeaeliansigineanines 10

H.R. 7152, 88th Cong., 1st Sess. (1963)... 27

Legislative History of the Equal Employ-

ment Opportunity Act of 1972, 92d

Comm. Int Gome. (297%). «.......—.............. 29

3B Moore’s Federal Practice (1979).. 18, 20, 21,

Reiter, The Applicability of Rule 23 to

EEOC Suits: An Examination of

EEOC vy. D.H. Holmes Co., 28 Syracuse

Bi Se DE eee ves 30, 32

S. Conf. Rep. No. 92-681, 92d Cong., 2d

CTD icsicesiinhienriaieencrevneneoninesiownie 29

S. Rep. No. 92-415, 92d Cong., 1st Sess. |

€ cg: } Reem enecananscnaconnme re Nenenr nnn rer vere 8, 29

TN a St ES Be a es Eh sin!

Iu the Supreme Cowt of the United States

OCTOBER TERM, 1979

| No. 79-488

GENERAL TELEPHONE COMPANY OF THE NORTHWEST, —

INC., ET AL., PETITIONERS

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A-1

to A-24) is reported at 599 F.2d 322. The report

and recommendation of the magistrate (Pet. App.

A-25 to A-32), which was approved and adopted by

the district court (Pet. App. A-33), is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on June 27, 1979. The petition for a writ of certio-

rari was filed on September 22, 1979, and was

granted on December 10, 1979. This Court’s juris-

diction is invoked under 28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether the Equal Employment Opportunity Com-

mission has authority under Section 706(f)(1) of

Title VII of the Civil Rights Act of 1964 to seek re-

lief from discriminatory practices affecting a class

of individuals without being certified as class repre-

sentative under Rule 23 of the Federal Rules of Civil

Procedure.

STATUTE INVOLVED

Section 706 of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e-5, is reproduced in the

Appendix to the petition (Pet. App. A-34 to A-40).

STATEMENT

The Equal Employment Opportunity Commission

brought this suit under Section 706(f)(1) of Title

VII, 42 U.S.C. 2000e-5(f) (1), against General Tele-

phone Company of the Northwest, Inc., its subsidiary,

West Coast Telephone Company, Inc., and Local

Union No. 89, International Brotherhood of Electri-

cal Workers. The complaint, as amended, alleges that

General Telephone and West Coast Telephone discrim-

inate against female employees with respect to their

maternity leave policies and assignments to craft

jobs and managerial positions (A. 9, 10). The com-

plaint further alleges that the defendant Union par-

ticipated in those unlawful practices in its represen-

tation of General Telephone employees (A. 10). The

Commission seeks injunctive relief, as well as back

pay for individuals affected by these practices (A.

11).

The allegations in the complaint are based on in-

formation obtained by the Commission in the in-

vestigation of charges of discrimination filed by four

individuals against General Telephone and the union

(see Pet. App. A-7). As a result of these investiga-

tions, the Commission found reasonable cause to be-

lieve that General Telephone was discriminating

against female employees in the manner alleged in

the complaint (Pet. App. A-7 n.1). After efforts at

conciliation proved unsucessful, the Commission insti-

tuted this lawsuit.

The district court referred the case to a magistrate

for trial (A. 22). On the same date, the Commission

moved for an order bifurcating the issue of liability

from the issue of individual damages and backpay

(A. 12). General Telephone thereafter filed a motion

asking the court to dismiss the “class action aspects”

of the complaint on the ground that the Commission

had not moved for certification as a “class representa-

tive” pursuant to Fed. R. Civ. P. 23 within the time

limit set by local Rule 23 of the Western District of

Washington (A. 24). The magistrate recommended

that General Telephone’s motion be denied, and the

district court adopted the magistrate’s recommenda-

tion (Pet. App. A-25 to A-32, A-33).

An interlocutory appeal from this ruling was certi-

fied pursuant to 28 U.S.C. 1292(b). The court of

appeals affirmed the judgment of the district court,

holding that the Commission could obtain relief under

Section 706 of Title VII for a class of individuals

harmed by discrimination without being certified as

a class representative under Rule 23 of the Federal

Rules of Civil Procedure (Pet. App. A-1 to A-24).

The court of appeals concluded that neither Rule 23

nor Title VII requires class certification of Commis-

sion enforcement actions and that, for such lawsuits,

the class certification process would be time consum-

ing and costly and would serve no useful purpose

(Pet. App. A-12 to A-23).

SUMMARY OF ARGUMENT

The question presented in this case is not, as pe-

titioners argue, whether the Federal Rules of Civil

Procedure apply to a “class action” brought by the

EEOC under Title VII of the Civil Rights Act of

1964. Rather, the questior in this case is whether an

enforcement action under Section 706(f)(1) of the

Act filed by the Commission in its own name and

pursuant to its authority “to prevent any person

from engaging in any unlawful employment practice”

(42 U.S.C. 2000e-5(a)) is a “class action” subject

to the requirements of Rule 23.

The traditional and correct answer to this question

is that a public agency, such as the Commission, that

is empowered to bring litigation to enforce federal

law is not acting as—and need not be certified as—

a “class representative.” This is because, even though

the government may seek relief that will directly

benefit a discrete group of private citizens, suits by

the United States and its agencies are brought on

behaif of the public to promote the public interest

in enforcing the requirements of federal laws. The

legislative history of the 1972 amendments to Title

VII, in particular, reflects that Congress authorized

the Commission to bring suit under Section 706(f)

(1) in order to promote “the overriding public in-

terest in equal employment opportunity * * * through

direct Federal enforcement.” 118 Cong. Rec. 4941

(1972). Accordingly, courts of appeals have specifi-

cally rejected the contention that, in exercising its

discretionary enforcement authority under Title VII,

the Commission serves merely as a proxy for in-

dividual complainants.

As is the case with suits brought by the United

States and its agencies to enforce other federal stat-

utes, it is the statute, rather than Rule 23, that au-

thorizes the government to sue in its own behalf and

seek comprehensive relief for persons affected by vio-

lations of federal law. 42 U.S.C. 2000e-5(f) (1),

(g). Furthermore, because absent plaintiffs are not

bound by the judgment entered in the Commission’s

enforcement actions, the procedural protections af-

forded these parties under Rule 23 are inapposite

in the government’s litigation.

It is significant, moreover, that the government en-

forcement suits authorized under Section 706(f) (1)

do not fit within the terms of Rule 23 as they are

commonly understood. It is, for example, difficult to

suggest meaningful criteria under which the Com-

mission would satisfy the threshold requirement of

Rule 23 that it be a member of the class that it

purportedly represents in enforcement actions under

Title VII. Similarly, because the Commission’s en-

forcement responsibilities should be exercised in the

public interest and therefore may not entirely coin-

cide with the interests of particular employee classes,

the Commission should not be required to establish

that its claims are “typical of the claims * * * of the

class” and that it would “adequately protect the in-

terests of the class” within the meaning of Rule 23

(a) (3), (4). To the extent that government actions

under Section 706 would fail to satisfy the prerequi-

sites of Rule 23, application of the Rule to limit the

scope of EEOC enforcement litigation would frus-

trate Congress’s intent that the Commission serve as

the primary enforcement agent under the Act and

that comprehensive relief be available in government

enforcement actions.

Petitioners argue that Rule 23 should be applied

to government enforcement actions under Section 706

in order to provide an early, clear definition to the

action and to protect defendants from duplicative

litigation and conflicting decrees. But Rule 23 is

not a substitute for discovery; if a defendant wishes

to determine in more detail the precise contours of

the Commission’s claims, the discovery procedures of

the Federal Rules provide the appropriate means for

obtaining that information. And the possibility that

separate private and government actions may be

brought under Section 706 exists precisely because

Congress provided for both public and private reme-

dies under Title VII. Moreover, as the court of ap-

peals emphasized in this case, the risk of duplicative

or conflicting litigation can be minimized by the

exercise of the district court’s equitable powers un-

der Section 706(g).

ARGUMENT

ENFORCEMENT ACTIONS BROUGHT BY THE

GOVERNMENT UNDER SECTION 706(f)(1) OF

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 ARE

NOT “CLASS ACTIONS” SUBJECT TO THE RE-

QUIREMENTS OF RULE 23 OF THE FEDERAL

RULES OF CIVIL PROCEDURE

Petitioners argue that when the EEOC files an

enforcement action under Section 706(f)(1) of the

Civil Rights Act of 1964, 42 U.S.C. 2000e-5(f) (1),

the Commission “is bound by the Federal Rules of

Civil Procedure as is any other litigant” (Br. 6).

Petitioners therefore claim that, if the Commission

seeks to bring a “class action” under Section 706(f)

(1), the class certification requirements of Rule 23

must first be satisfied." Although these propositions

are essentially unobjectionable, they do not answer

the question that this case presents.

The question here is not whether the Federal

Rules of Civil Procedure apply to a “class action”

brought by the Commission under Title VII; rather,

the question in this case is whether an enforcement

action under Section 706 that is brought by the Com-

mission in its own name (A. 2, 7) and pursuant to

its authority “to prevent any person from engaging

in any unlawful employment practice” (42 U.S.C.

2000e-5(a)) is a “class action” subject to the re-

quirements of Rule 23. We will show that the tra-

ditional and correct answer to this question is that

a government enforcement action is not a “class ac-

1 These requirements are discussed at pages 20-25, infra.

tion” under Rule 23 even when (as here) the action

seeks relief that will directly benefit a discrete group

of affected private citizens. We will further show

that this result is consistent with the language and

history of Title VII and does not frustrate the ob-

jectives that Rule 23 is designed to accomplish.

A. Enforcement Actions Brought By The EEOC Under

Section 706(f)(1) Are Not Class Actions Even Though

Relief May Be Sought For A Discrete Group Of

Affected Private Citizens

1. In initiating litigation under Section 706, the Com-

mission acts to promote the public interest in equal

employment opportunity and not merely to ad-

vance the private interests of affected citizens

Prior to 1972, the Commission’s responsibilities

under Title VII had been limited by Congress to the

investigation and conciliation of private complaints.

In 1972, however, in order to provide “the Commis-

sion with effective power to enforce title VII’ (S.

Rep. No. 92-415, 92d Cong., Ist Sess. 28 (1971)),”

2 The initial Senate Report on the 1972 amendments noted

that the “failure to grant the EEOC meaningful enforcement

powers has proven to be a major flaw in the operation of

title VII.” S. Rep. No. 92-415, supra, at 4. The Senate

version of the amendments proposed that the Commission be

given administrative authority to issue cease and desist orders

in adjudicative proceedings. Jd. at 1. The bill ultimately

adopted in Conference and enacted by Congress provides for

court enforcement in suits filed either by private plaintiffs

or the Commission or the Attorney General under Section

706. The purpose of the legislation remained that of enhanc-

ing federal enforcement capability. See 118 Cong. Rec. 7167

(1972).

Congress amended Section 706 of the Civil Rights

Act of 1964 to authorize the Commission “to pre-

vent any person from engaging in any unlawful em-

ployment practice [in violation of that title].” 42

U.S.C. 2000e-5(a). In particular, Congress added

Section 706(f)(1) to Title VII to enable the Com-

mission to bring suit in its own name in federal

district court against private employers alleged to

have violated the Act. 42 U.S.C. 2000e-5(f) (1). At

the same time, Congress granted a parallel authority

to the Attorney General to bring suit on behalf of the

United States in cases involving employment dis-

crimination by state and local governments, agencies

and political subdivisions. Jbid. Senator Williams,

the sponsor and floor manager of the Senate bill,

Stated that these amendments were designed to per-

mit the Commission and the Attorney General to

achieve “the overriding public interest in equal em-

ployment opportunity * * * through direct Federal

enforcement.” 118 Cong. Rec. 4941 (1972).

An action may be filed by the Commission under

Section 706 only after the Commission has received

a charge from either a private individual or a Com-

missioner alleging that an employer is engaged in

.unlawful employment discrimination. 42 U.S.C.

2000e-5(f£)(1). After the charge is received, the

Commission must determine whether there is reason-

able cause to believe the charge is true and, if there

is, attempt to eliminate the discrimination (if any)

uncovered during the Commission’s investigation by

conciliation. If the discrimination cannot be elimi-

nated by these informul means, ‘the Commission then

determines whether to initiate a civil action in fed-

eral court.*

In bringing litigation pursuant to Section 706,

the Commission (or the Attorney General) acts to

advance “the overriding public interest in equal em-

ployment opportunity * * *.” 118 Cong. Rec. 4941

(1972). Courts are broadly empowered by Section

706(g) to grant equitable relief (such as hiring or

reinstatement or restitution in the form of backpay)

in favor of employees affected by any unlawful em-

ployment practices that are proven as part of the

Commission’s suit. It is well recognized, however,

that the Commission’s role is primarily to vindicate

the public interest and not simply to advance the pri

vate rights of the victims of discrimination. See,

e.g., EEOC v. General Electric Co., 582 F.2d 359,

3 The statute provides that the Commission “may” initiate

litigation in these circumstances. 42 U.S.C. 2000e-5 (f) (1).

The Commission thus retains discretion to not file an action

when, although reasonable cause may exist to believe that a

violation has occurred, litigation is deemed not likely to

advance the enforcement objectives of the statute. Congress

contemplated that direct federal enforcement, rather than

actions brought by private litigants, would become the

primary enforcement mechanism for Title VII following the

1972 amendments (118 Cong. Rec. 7168 (1972) (Section-

By-Section Analysis of Senators Williams and Javits) ; Con-

gress also, however, retained the right of private litigants

to bring actions under Section 706, so “that an individual

aggrieved by a violation of Title VII should not be forced

to abandon the claim merely because of a decision by the

Commission or the Attorney General as the case may be,

that there are insufficient grounds for the Government to

file a complaint.” 118 Cong. Rec. 7168 (1972).

373 (4th Cir. 1976); EEOC v. E.I. duPont de

Nemours and Co., 516 F.2d 1297, 1299 (8d Cir.

1975); EEOC v. Kimberly-Clark Corp., 511 F.2d

1352, 1859 (6th Cir.), cert. denied, 423 U.S. 994

(1975).* Indeed, the courts of appeals have specifi-

cally repudiated the suggestion that, in exercising

the litigating responsibility conferred on it in 1972,

the Commission serves merely as a proxy for indi-

vidual complainants under Section 706.° For example,°

* See also Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358

(6th Cir. 1969) (“[T]he Commission may, in the public

interest, provide relief which goes beyond the limited interests

of the charging parties.’’)

5 The fact that a charge by either a Commissioner or a

private citizen must precede the filing of a complaint does not

distinguish the role of the Commission under Title VII from

that of other federal agencies in the enforcement of other

federal statutes. The charge-initiated proceedings under Title

VII are analogous to proceedings under the Age Discrimina-

tion in Employment Act of 1967, 29 U.S.C. 621, et seq., and

the Occupational Safety and Health Act of 1970, 20 U.S.C.

651, et seq., and were patterned after the National Labor Re-

lations Act, 29 U.S.C. 151, et seg. See Graniteville Co. v.

EEOC, 488 F.2d 32, 39 (4th Cir. 1971). In NLRB v. Fant

Milling Co., 360 U.S. 301 (1959), this Court concluded that the

NLRB’s authority under that Act is not limited to enforcing

the claims of named charging parties (id. at 307-308) :

To confine the Board in its inquiry and in framing

the complaint to the specific matters alleged in the charge

would reduce the statutory machinery to a vehicle for

the vindication of private rights. * * * The Board was

created not to adjudicate private controversies but to

advance the public interest * * *.”

See also National Licorice Co. v. NLRB, 309 U.S. 350, 367-

369 (1940).

iy See also EEOC v. The Bailey Co., 563 F.2d 439, 454 (6th

Cir. 1977), cert. denied, 485 U.S. 915 (1978); Johnson Vv.

in EEOC v. General Electric Co., supra, 582 F.2d at

373, the court stated:

[T]he standing of the EEOC to sue under Title

VII cannot be controlled or determined by the

standing of the charging party to sue, limited as

he is in rights to the vindication of his own in-

dividual rights. To hold otherwise * * * would

be to continue treating the sole purpose of the

Title to be the correction of individual wrongs

rather than of public or “societal” wrongs as

well as to deny to the EEOC the right to be

any more than a mere proxy for the charging

party rather than what Congress by the Amend-

ments of 1972 intended, i.e., the public avenger

by civil suit of any discrimination uncovered in

a valid investigation and subjected to concilia-

tion under the Act.

Because the Commission does not simply stand in the

shoes of private complainants in bringing litigation

under Section 706, the Commission is not limited in

Nekoosa-Edwards Paper Co., 558 F.2d 841, 846-847 (8th

Cir.), cert. denied, 434 U.S. 920 (1977) ; EEOC v. Occidental

Life Insurance Co., 535 F.2d 533, 542 (9th Cir. 1976) (“the

EEOC is charged with the vindication of public policy, not

merely with the enforcement of private rights’), aff’d, 432

U.S. 355 (1977).

In its decision affirming the judgment of the court of ap-

peals in EEOC v. Occidental Life Insurance Co., supra, this

Court recognized a distinction between government-initiated

and private-initiated litigation under Title VII, noting that

the Commission may challenge practices not challenged in

any private charge by giving “[p]rompt notice of a reason-

able-cause determination also serves to cure any deficiencies

in the 10-day notice that may result from EEOC amendment

of the claimed violation [uncovered] after investigation.” 432

U.S. at 372-3738 n.32.

a Section 706 suit to the issues raised by the charging

party, but may include all forms of discrimination

discovered in its investigation of the charge and sub-

jected to its conciliation efforts. Johnson v. Nekoosa-

Edwards Paper Co., 558 F.2d 841, 846-847 (8th Cir.),

cert. denied, 434 U.S. 920 (1977); EEOC v. Hearst

Corp., 553 F.2d 579, 580 (9th Cir. 1977); EEOC v.

General Electric Co., supra, 582 F.2d at 366; EEOC

v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th

Cir. 1975). Indeed, the Commission may bring a

Section 706 suit even though the charging party is

no longer entitled to relief if, in the investigation of

the charge, the Commission finds reasonable cause to

believe that the employer is engaged in unlawful em-

ployment practices. See, e.g., Kimberly-Clark Corp.,

supra, 511 F.2d at 13861; EEOC v. Huttig Sash &

Door Co., 511 F.2d 458, 455 (5th Cir. 1975); EEOC

v. Louisville & Nashville R.R., 505 F.2d 610, 617

(5th Cir. 1974).

2. A public agency that Congress has authorized to

bring litigation to enforce federal law need not

be certified as a “class representative’ of the

affected members of the public

A public agency, such as the Commission, that is

empowered by Congress to bring litigation to enforce

federal law need not be certified as a “class repre-

sentative” of the members of the public directly af-

fected by the claimed unlawful conduct. Outside the

context of Title VII, no court has ever held that a

suit by the United States or any of its agencies to

enforce federal law must proceed as a class action on

behalf of the affected public.’ This is so even where

the public litigation will—under either common law

or statute—operate as a basis for collateral estoppel

in subsequent suits brought by private plaintiffs.* And

this is so even where, as here, the United States or

its agencies seek equitable relief, including restitu-

tion, for private citizens as part of the remedy in the

government action.

For example, in Porter v. Warner Holding Co.,

828 U.S. 395 (1946), the Administrator of the Office

7 The Fifth Circuit concluded in EEOC v. D. H. Holmes Co.,

556 F.2d 787 (1977), cert. denied, 436 U.S. 962 (1978), that

the EEOC must be certified as a class representative to ob-

tain relief for persons other than the named charging party

in a suit under Section 706. The Holmes decision was pre-

mised on the court’s view that the EEOC’s role under Section

706 was merely that of promoting the grievances of indi-

vidual private employers. 556 F.2d at 794. That conclusion

was incorrect for reasons discussed above. The Holmes de-

cision has, however, spawned much controversy in the dis-

trict courts, which have differed sharply on the question

that this case presents. These decisions are collected in Com-

ment, Certification of EEOC Class Suits Under Rule 23, 46

U. Chi. L. Rev. 690, 691 nn.14, 15 (1979), and in Petitioners’

Brief at 9 n.3.

815 U.S.C. 16(a) provides that any judgment obtained by

the United States in contested public criminal or civil liti-

gation under the antitrust laws shall be prima facie evidence

of that violation in subsequent private treble damage actions.

No court has suggested that the United States must be certified

as a class representative in its suits to enforce the antitrust

laws. And this is so even though, unlike under 42 U.S.C.

2000e-5 (f) (1), private plaintiffs have no right to intervene

in the government’s antitrust enforcement action. Compare

Sam Fox Publishing Co. v. United States, 366 U.S. 683,

688-690 (1961), with Pet. App. A-24. See Comment, supra,

46 U. Chi. L. Rev. at 693 n.30.

of Price Administration brought suit in federal dis-

trict court under Section 205(a) of the Emergency

Price Control Act of 1942, ch. 26, 56 Stat. 33, to

restrain a landlord from collecting rents in excess of

the then-applicable federal rent ceiling.’ The Admin-

istrator also sought a decree requiring the landlord

“to tender to such persons as are entitled thereto a

refund of all amounts collected by defendant from

tenants as rent * * * in excess of the [federal rent

ceiling] * * *.”*° 328 U.S. at 396-397. This Court

held “that a decree compelling one to disgorge profits,

rents or property acquired in violation of the Emer-

gency Price Control Act” was one properly within

the jurisdiction of the district court “as an equitable

adjunct to an injunction decree” in the Administra-

tor’s suit. Id. at 398-399. Even though an aggrieved

tenant was authorized “to sue for damages in his own

® Section 205(a) provided (56 Stat. 53; see 328 U.S. at

397):

Whenever in the judgment of the Administrator any

person has engaged or is about to engage in any acts

or practices which constitute or will constitute a viola-

tion of any provision of section 4 of this Act, he may

make application to the appropriate court for an order

enjoining such acts or practices, or for an order en-

forcing compliance with such provision, and upon a

showing by the Administrator that such person has en-

gaged or is about to engage in any such acts or practices

a permanent or temporary injunction, restraining order,

or other order shall be granted without bond.

10 The Administrator excepted from his request for relief

the claims of any tenant who previously had commenced

a direct private action against the landlord for the return of

excessive rents under Section 205(e) of the Act. 328 U.S. at

397.

behalf” under Section 205(e) of the Act (328 U.S.

at 401; see note 10, supra), the Court held that res-

titution of excessive rents to private tenants in the

Administrator’s suit was authorized under Section

205(a) as an equitable order ‘necessary to vindicate

the public interest, [and] to compel compliance with

the Act * * *.” 328 U.S. at 402.

The situation here closely parallels that in Porter

v. Warner Holding Co. When the EEOC or the At-

torney General exercises their discretion to bring suit

under Section 706(f) (1),” they do so to promote “the

overriding public interest in equal employment oppor-

tunity * * * through direct Federal enforcement.”

118 Cong. Rec. 4941 (1972). And, as under the

Emergency Price Control Act in Porter, if a viola-

_ tion is established in the government’s suit, the court

may exercise its ample equitable power under the

Civil Rights Acts to remedy the harm caused by each

unlawful practice. See 328 U.S. at 398. Thus, Sec-

tion 706(g) specifies that, once a violation is found,

“the court may enjoin the respondent * * * and order

such affirmative action as may be appropriate, which

may include * * * reinstatement or hiring of employ-

ees, with or without backpay * * * or any other

equitable relief as the court deems appropriate.”

Ibid. As under the Emergency Price Control Act in

Porter, and under the National Labor Relations Act

in NLRB v. Rutter-Rex Manufacturing Co., 396 U.S.

258 (1969), an equitable award of reparation or

11 See note 3, supra.

backpay to private citizens affected by the illegality

is an “order designed to vindicate the public policy

of the statute by making the employees whole for

losses suffered on account of [unlawful conduct].”

Id. at 263."* Moreover, it has been recognized in the

present case (Pet. App. A-24), as it was in Porter

(828 U.S. at 403), that the district courts possess

inherent equitable power in appropriate cases to no-

tify private parties who may benefit from a repara-

tion or backpay order and to condition any award of

relief on the waiver of their independent personal

right of action. See also page 35, infra.

Petitioners note (Br. 16-17), however, that repre-

sentative actions by private parties under Section 706

must proceed as class actions under Rule 23. They

argue that actions filed by the Commission (and,

12 Indeed, this Court has specifically recognized that the

availability of backpay as a remedy for violations of the

Act established in the Commission’s suit is an equitable

adjunct of the Commission’s request for relief that serves

primarily a public function as a calatyst for compliance with

the Act (cf. Porter v. Warner Holding Co., supra, 328 U.S.

at 402). As this Court explained in Albemarle Paper Co. V.

Moody, 422 U.S. 405, 417-418 (1975):

If employers faced only the prospect of an injunctive

order, they would have little incentive to shun practices

of dubious legality. It is the reasonably certain prospect

of a backpay award that “provide[s] the spur or catalyst

which causes employers and unions to self-examine and

to self-evaluate their employment practices and to en-

deavor to eliminate, so far as possible, the last vestiges

of an unfortunate and ignominious page in this country’s

history.” United States v. N.L. Industries, Inc., 479 F.2d

854, 379 (CA8 1973).

presumably, the Attorney General) seeking equitable

relief for affected employees under Section 706 there-

fore also must proceed as class actions. But this con-

tention is no more apt under Title VII than it would

be in other contexts involving government enforce-

ment litigation that affects the interests of private

parties." The private class action is a procedural

device that authorizes individuals who have been per-

sonally affected by an alleged illegality to serve as

the litigation representative of others similarly situ-

ated. See, e.g., 3B Moore’s Federal Practice {| 23.02

[1], at 23-35 to 23-44 (1979). Suits brought by the

United States and its agencies to enforce federal

statutes—including Title VII—stand on a completely

different footing. Under Section 706(f) (1), for ex-

ample, the Commission and the Attorney General have

standing not because they have suffered any particu-

larized harm from any conduct but because Congress

has granted them authority to enforce this law. The

Commission and the Attorney General do not depend

18 Government actions to prevent statutory or constitutional

violations often directly benefit private individuals. Some-

times individuals benefit from injunctive relief (e.g., 42

U.S.C. 1971) ; often they receive restitution for losses suffered

as a result of the violations of law. See the Fair Labor Stand-

ards Act of 1938, 29 U.S.C. 217; the Age Discrimination in

Employment Act of 1967, 29 U.S.C. 621-634; the Equal Pay

Act of 1963, 29 U.S.C. 206(d). Under such statutes, when the

government obtains monetary relief for individuals, it does so

not as a mere proxy for those individuals, but under its au-

thority to enforce the law. Such broad-scale relief is available

in government actions in large part because of its importance

in deterring violations and securing compliance with federal

law. See Wirtz v. Jones, 340 F.2d 901, 904 (5th Cir. 1965).

on Rule 23 as a source of authority to sue to remedy

widespread illegality; rather, Section 706(f) (1) it-

self authorizes the government’s enforcement suit and

Section 706(g) authorizes district courts to grant

equitable relief, including backpay, for employees af-

fected by any violations established in the govern-

ment’s litigation. Thus, under Section 706(f) (1), as

under the Emergency Price Control Act in Porter,

it is the statute, rather than Rule 23, that empowers

the government to sue in its own behalf and seek

broad relief for persons affected by proven violation

of federal law. See, e.g., EEOC v. Raymond Metal

Products Co., 17 Fair Empl. Prac. Cas. 206, 207 (D.

Md. 1978); EEOC v. Schlueter Mfg. Co., 17 Fair

Empl. Prac. Cas. 53, 54 (E.D. Mo. 1978) ; EEOC v.

Pinkerton’s, Inc., 14-Fair Empl. Prac. Cas. 1481,

1433 (W.D. Pa. 1977).

The historical objectives that the cla: ; certification

procedure is designed to achieve further indicate that

Rule 23 is inapplicable to government enforcement

actions under Section 706(f) (1). Under prior prac-

tice as well as under the current Rule, a private liti-

gant seeking to proceed on behalf of a class has been

required to demonstrate that his “personal interest

is sufficiently parallel to the interests of other class

members to assure a vigorous representation of the

class.” Donaldson v. Pillsbury Co., 554 F.2d 825, 831

(8th Cir.), cert. denied, 484 U.S. 856 (1977). The

purpose of this requirement has been to ensure that

absent class members—who ordinarily have no choice

as to whether to be represented in a private class

suit seeking equitable relief and who will thus be

bound without their consent by the result “— are not

denied due process of law. See Hansberry v. Lee, 311

U.S. 32 (1940); 8B Moore’s Federal Practice, supra, ,

{| 23.07[1], at 23-199. As petitioners recognize (Br.

26 n.35), however, absent employees are not bound by

the judgment entered in government enforcement ac-

tions under Section 706(f) (1). Cf. United States v.

Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 845

(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976);

Williamson v. Bethlehem Steel Corp., 468 F.2d 1201,

1203-1204 (2d Cir. 1972), cert. denied, 411 U.S. 931

(1973). The procedural protections afforded to ab-

sent plaintiffs under Rule 23 are therefore inapposite

in the government’s enforcement litigation.”

It is significant, moreover, that the government

enforcement suits authorized under Section 706 (f) (1)

simply do not fit the terms of Rule 23 as they are

14 Private class actions under Title VII almost without

exception seek injunctive relief as at least part of the re

quested relief and are therefore certified under Rule 23 (b) (2).

Formal notice to class members and an opportunity to opt

out of the class action under Rule 23(c) (2) is therefore not

required in private Title VII litigation, even though claims

for backpay or other restitutionary relief are also included.

Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d

Cir.) (notice under Rule 23(c) (2) not required in com-

bined 23(b) (2) and 23(b) (3) class action), cert. denied, 421

U.S. 972 (1975). See Comment, supra, 46 U. Chi. L. Rev.

at 714 n.189.

1 The effect of enforcement litigation under Section 706

(f) (1) on the defendant’s inigrest in avoiding duplicative

litigation and conflicting judgments is discussed at pages

34-36, infra.

commonly understood. In the first place, it is not

meaningful to think of the Commission (or the United

States in suits brought by the Attorney General) as

a member of the class that it purportedly represents

in actions under Section 706(f) (1). If Rule 23 were

applicable to government enforcement litigation, this

would, of course, be a threshold requirement.** See

3B Moore’s Federal Practice, supra, {| 23.04[2], at

23-120 to 23-128.

Petitioners argue (Br. 19-20) that, because Con-

gress intended the Commission to be “a properly

suing party” under Section 706 (118 Cong. Rec. 4082

(1972) (Senator Javits) ), the Commission should be

considered to be a member of the class of affected

employees for purposes of Rule 23(a). But, although

Congress has given the Commission standing as “a

properly suing party” to bring an enforcement ac-

tion in its own name under Section 706, it does not

follow that Congress has made the Commission a

member of any employee class. Nor, as petitioners

contend (Br. 18-19), does the fact that unions and

private associations may, in some circumstances, sue

16 Fed. R. Civ. P. 23(a) provides:

One or more members of a class may sue or be sued as

representative parties on behalf of all only if (1) the

class is so numerous that joinder of all members is im-

practicable, (2) there are questions of law or fact com-

mon to the class, (3) the claims or defenses of the repre-

sentative parties are typical of the claims or defenses of

the class, and (4) the representative parties will fairly

and adequately protect the interests of the class.

as a class representative for their members ”. demon-

strate that the EEOC is a class representative in

government enforcement litigation. Private member-

ship organizations may represent their members in

class actions because the organizations are subject to

membership control and supervision and, indeed, ordi-

narily are chartered to represent the collective inter-

ests of their membership as their alter ego.** Indeed,

they have no other interest in the litigation—unlike

the EEOC or the United States which bring suit

under Section 706 to vindicate the public interest,

and neither of which is composed of, or subject to the

control or supervision of, the affected employees who

constitute the putative class. Accordingly, the United

States and the Commission do not share the charac-

teristics of private associations as alter egos of their

members that permit meaningful application of the

eriteria of Rule 23."° See EEOC v. Whirlpool Corp.,

80 F.R.D. 10, 14 (N.D. Ind. 1978); EEOC v. Akron

National Bank & Trust Co., 78 F.R.D. 684, 687

(N.D. Ohio 1978).

17 See cases collected in Comment, supra, 46 U. Chi. L. Rev.

-at 711-712 nn.119-124.

18 When private associations contain conflicting member-

ship interests they may lose their ability to serve as class rep-

resentative for the entire membership. See Air Line Stew-

ards and Stewardesses Association Vv. American Airlines, Inc.,

490 F.2d 636, 642 & n.5 (7th Cir. 1973).

19 In East Texas Motor Freight v. Rodriguez, 431 U.S. 395,

403 (1977), the Court stated that a class representative must

“ ‘possess the same interest and suffer the same injury’ as

the class members.”

Ne oe i ee

ain a itt nt CPOE NC a “

Ae Asi a ah

Nor do the Commission’s enforcement responsibili-

ties suggest that it should be required to establish

that its claims are “typical of the claims * * * of

the class” and that it would “adequately protect the

interests of the class” within the meaning of Rule

23(a)(3), (4). See note 16, supra; EEOC v.

Akron National Bank, supra.” Because government

enforcement actions under Section 706(f) (1) seek to

remove the effects of all unlawful discriminatory

practices discovered in its investigation of private or

Commissioner charges (see page 13, supra), the

government’s claims for relief may not coincide en-

tirely with those of any employee class. In particu-

lar, as the court of appeals noted in McClain v.

Wagner Electric Corp., 550 F.2d 1115 (8th Cir.

1977), the Commission’s request for relief may em-

phasize prospective affirmative action while the class

of current employees may desire retroactive relief in

the form of backpay (id. at 1121-1122):

[T]he interests of [the EEOC] in filing, prose-

cuting or settling a § 706 case are not necessarily

identical with the interests of individual employ-

ees who have been the victims of invidious dis-

crimination in employment. In achieving the

broad social and economic objectives of the Act,

the Commission may be more concerned with

future compliance with the Act by employers

than with redressing employee grievances that

20 Petitioners also acknowledge (Br. 21) that the numer-

osity requirement of Rule 23 (see 8B Moore’s Federal Prac-

tice, supra, {| 28.05[1]) could impede the Commission’s ability

to obtain relief for small groups of aggrieved individuals.

have accrued already. And on the other hand,

individual employees may well be more interested

in being compensated for the wrongs that they

may have suffered individually than in future

compliance with the Act on the part of employ-

ers.

Congress recognized this potential conflict between

private interests and the Commission’s responsibility

to achieve the “overriding public interest in equal

employment opportunity” (118 Cong. Rec. 4941

(1972) ) by providing that an aggrieved person may

intervene as of right in the Commission’s enforce-

ment action. 42 U.S.C. 2000e-5(f) (1). If Congress

had regarded the Commission as the alter ego, and

necessarily adequate representative, of private em-

ployee classes, this provision would have been un-

necessary.”

To the extent that government actions under Sec-

tion 706 would fail to satisfy the prerequisites of

Rule 23, application of the Rule to limit the scope of

EEOC enforcement litigation would frustrate Con-

gress’s intent that the Commission serve as the pri-

2 Cf. Trbovich v. United Mine Workers, 404 U.S. 528

(1972), where this Court held that an aggrieved individual

could intervene in a government enforcement action under the

Labor-Management Reporting and Disclosure Act of 1959, 29

U.S.C. 482(b), because of the possibility that the govern-

ment might not adequately represent the individual’s inter-

est. 404 U.S. at 538-539. It is unnecessary in the present case

to consider the extent to which a prospective intervenor’s

right to participate in a suit by the Commission may be

circumscribed by his failure to file a timely charge with the

Commission.

a ae

mary enforcement agent under the Act and that

broad-based equitable relief be available in federal

enforcement actions under Section 706(¢).” If this

Court were to conclude that Rule 23 is applicable to

government enforcement actions under Section 706

(f) (1), the Commission would, of course, attempt to

overcome the several analytical barriers to its status

as class representative. Otherwise, Congress’s intent

that the Commission, rather than private litigants,

serve as the primary enforcement agent for Title

VII would be thwarted. But we submit that the

proper course for achieving Congress’s clear intent

is not to strain or redefine the generally-applicable

terms of Rule 23. Instead, the Court should apply to

Commission actions under Section 706(f)(1) the

traditional rule that an agency litigating in its own

name to enforce a federal statute is not suing as a

“class representative” even though—in order to “do

complete rather than truncated justice” (Porter v.

Warner Holding Co., supra, 328 U.S. at 398)—the

federal courts are empowered to grant relief on be-

half of a discrete group of the affected public in gov-

ernment enforcement actions. |

22 In adopting the 1972 amendments to Title VII, Congress

intended that “direct Federal enforcement” (118 Cong. Rec.

4941 (1972)), rather than private litigation, would serve

as the primary means of achieving compliance. See note 3,

supra. If the EEOC were disabled from seeking relief under

Section 706(g) for all employees affected by an unlawful

practice, the congressional scheme would be seriously com-

promised.

ee eee

3. The legislative history of the 1972 amendments to

Title VII does not indicate that Congress intended

Rule 23 to apply to Commission enforcement

litigation

Nothing in the legislative history suggests that

Congress intended Commission enforcement actions

under Section 706(f) (1) to be subject to the require-

ments of Rule 23. Petitioners argue (Br. 13-15)

that, because the legislative history does not ex-

plicitly demonstrate an intention to “exempt” gov-

ernment enforcement actions from Rule 23, this Court

should infer that Congress intended Rule 23 to apply.

But, in view of the traditional rule that government

enforcement actions are not representative suits, there

is no reason why Congress would have thought that

the Commission needed an exemption from Rule 23

to enable it to sue in its own name to enforce Title

VII. Accordingly, legislative silence on this issue

would, if anything, support the conclusion that Con-

gress did not intend government enforcement actions

under Section 706(f)(1)—any more than govern-

ment enforcement actions under other statutes—to be

subject to Rule 23.”

The history of Title VII demonstrates that Con-

gress intended to retain the basic distinction between

23 Similarly, petitioners err in relying (Br. 12-13) on state-

ments by Senators who supported court enforcement of Title

VII because court actions would be subject to “established

rules of procedure” (118 Cong. Rec. 3810 (1972) (Sen.

Dominick) ; see id. at 4607 (Senator Ervin)), for the rule

established by lengthy practice is that government «aforce-

ment actions are not representative actions of the type that

are subject to Rule 23.

suits by the government, suing in its own right to

enforce federal law, and suits by private individuals

to obtain relief from unlawful practices. When Title

VII was first considered by the House of Representa-

tives in 1964, the House bill provided that enforce-

ment of Title VII would be located in a quasi-judicial

administrative agency patterned after the National

Labor Relations Board. H.R. 7152, 88th Cong., 1st

Sess. (1963). Congress rejected this proposed ad-

ministrative enforcement scheme, however, and placed

enforcement of Title VII in the courts. The bill that

Congress enacted established the EEOC as a public

investigatory agency with conciliation responsibility

and authorized individuals to bring private actions

in federal district court. The Attorney General,

either on his own or on the recommendation of the

EEOC, was empowered under Section 707 of the Act

to bring suit if he was satisfied that a “pattern or

practice” of discrimination existed. 42 U.S.C. 2000e-

6(a). The Attorney General also was authorized to

intervene in any private Title VII action brought

under Section 706.

Between 1964 and 1972, the United States filed

69 pattern or practice suits under Section 707 of the

Act. 118 Cong. Rec. 4078 (1972). In none of the

decisions in these cases did any court conclude, or

even suggest, that the Attorney General was suing

simply as a class “representative” of the persons who

were likely to benefit from the litigation. To the con-

trary, the courts recognized that suits brought by the

United States for enforcement purposes were distinct

from class actions by private litigants and that judg-

ments in government enforcement actions would not

bind private citizens who were not made parties to

the action. E.g., Williamson v. Bethlehem Steel

Corp., 468 F.2d 1201 (2d Cir. 1972), cert. denied,

411 U.S. 981 (1973). And this was so even though,

in a number of cases decided prior to 1972, courts

had awarded specific relief (such as preferential hir-

ing order and constructive seniority) in pattern-or-

practice suits to specific individuals. See, e.g., United

States v. Chesapeake & Ohio Ry., 471 F.2d 582 (4th

Cir. 1972), cert. denied, 411 U.S. 939 (1973) ; United

States v. St. Louis-San Francisco Ry., 464 F.2d 301

(8th Cir. 1972), cert. denied, 409 U.S. 1107, 1116

(1973); and United States v. Ironworkers Local 86,

443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984

(1971).% No court suggested before the Act was

amended in 1972 that the availability of private relief

in the government action converted the enforcement

suits into “class actions.” Any such contention would

seem to have been plainly defective in view of this

Court’s decision in Porter v. Warner Holding Co.,

supra. See pages 14-16, supra.

When Congress considered alternative means of

improving enforcement of Title VII in 1972, it was

presumably aware of this history. The purpose of

the 1972 amendments was to improve enforcement

2% In decisions announced since 1972, courts have held that

the government may seek awards of backpay for individual

employees as proper relief in pattern-or-practice suits under

Section 707. See EEOC v. Detroit Edison Co., 515 F.2d 301,

$14-815 (6th Cir. 1975); United States v. N.L. Industries,

Inc., 479 F.2d 854 (8th Cir. 1973).

by greatly expanding the government’s enforcement

role. S. Conf. Rep. No. 92-681, 92d Cong. 2d Sess.

16-17 (1972); 118 Cong. Rec. 4941 (1972). In en-

acting the amendments, however, Congress again re-

jected proposals that would have made the EEOC a

quasi-adjudicative body empowered to issue cease and

desist orders in administrative hearings. Instead,

while retaining a private right of action in defined

circumstances under Section 706, the amendments

authorized the EEOC (with respect to private em-

ployers) and the Attorney General (with respect to

government employers) to bring government enforce-

ment actions under Title VII and to intervene in any

independent private action. 42 U.S.C. 2000e-5(f)

(1), 2000e-6. The Commission was authorized to ini-

tiate litigation not only in pattern and practice suits

under Section 707 but also with respect to all other

complaints of discriminatory employment action under

Section 706.*% Ibid.

25 The bill reported out of the Senate committee authorized

the EEOC to receive, investigate and conciliate charges

against both public and private employers. It also would have

authorized the Commission to adjudicate charges against

private employers, but not against government employers. If

conciliation of any charges against public employers was

unsuccessful, the charges were to be referred to the Attorney

General for enforcement by civil action. See Legislative

History of the Equal Employment Opportunity Act of 1972,

92d Cong., Ist Sess. 381-882 (1971). The Senate Report states

that this distinction was adopted to avoid “the needless fric-

tion that might be created by a Federal executive agency is-

suing orders to sovereign states and their localities.” S. Rep.

No, 92-415, supa at 25. At no time was it suggested that the

Attorney General would be limited in bringing suits against

The debates on these amendments indicate that, in

altering and expanding the government’s enforcement

role under Title VII, Congress did not intend to limit

the government to the status of a “class representa-

tive” subject to Rule 23.%° Rather, Senators Javits

and Williams stated that the EEOC’s authority to

initiate litigation under Section 706(f)(1) would

altow it to bring “exactly the same actions that the

Department of Justice does under pattern and prac-

tice’ (118 Cong. Rec. 4081 (1972)), and that

“Tt]here will be no difference between the cases that

the Attorney General can bring under section 707

as a ‘pattern and practice’ charge and those which

the Commission will be able to bring as a result of

[the] decision to give EEOC court enforcement

public employers to the role of a “class representative” bound

by the restrictions of Rule 23.

When the Senate bill was amended to withhold administra-

tive adjudicative authority from the EEOC, the Senate gave

the Commission the same prosecutorial power with regard

to private employers that it had previously determined to give

the Attorney General with respect to public employers. In

_ referring to the difference between the enforcement schemes

in the original bill, and the bill adopted, Senator Dominick

indicated that the amendment would result in similar treat-

ment of claims by all employees. 118 Cong. Rec. 943 (1972).

26 Statements in the legislative history indicating that the

1972 amendments were not intended to change “the present

use of class action lawsuits under Title VII in conjunction

with Rule 23” (118 Cong. Rec. 4081-4082 (1972)) meant

only that the amendments were not to alter the prevailing

use of class actions under Section 706 by private litigants.

Reiter, The Applicability of Rule 28 to EEOC Suits: An

Examination of EEOC v. D. H. Holmes Co., 28 Syracuse L.

Rev. 741, 758 (1977).

powers [under Section 706]” (118 Cong. Rec. 4081

(1972) ). As petitioners point out (Br. 14), Senator

Javits elaborated by stating that (118 Cong. Ree.

4081-4082 (1972) ):

[If the Commission] proceeds by suit [under

Section 706(f) (1)], then it can proceed by class

suit. If it proceeds by class suit, it is in the posi-

tion of doing exactly what the Department of

Justice does in pattern and practice suits.

* * * * a

I have referred to the rules of civil procedure.

I now refer specifically to rule 23 of those rules,

which is entitled “Class Actions” and which give

the opportunity to engage in the Federal courts

in class actions by properly suing parties. We

ourselves have given permission to the EEOC to

be a properly suing party.

In context, it is clear that these remarks were

made simply to demonstrate that, because a Com-

mission suit under Section 706 may be just as

broad as a pattern and practice suit under Section

707, “the pattern and practice section becomes a re-

dundancy in the law.” 118 Cong. Rec, 4081 (1972)

(Senator Williams). Senator Javits did not state

that the EEOC must be certified as a class repre-

sentative when it brings an enforcement action seek-

ing broad relief under Section 706; nor did he indi-

cate that he had given specific attention to that ques-

tion.” Rather, he stressed that the government en-

27 See Comment, supra, 46 Chi. L. Rev. at 698. Although

this Comment concludes that the legislative history is am-

biguous (ibid.), it notes that Senator Javits might have

“meant that Congress had made the EEOC a properly suing

party in class suits without regard to rule 28.” Ibid.

forcement authority created under Section 706 and

Section 707 was essentially the same and should there-

fore be placed in a single agency. Reiter, The Appli-

cability of Rule 23 to EEOC Suits: An Examination

of EEOC v. D. H. Holmes Co., 28 Syracuse L. Rev.

741, 753 n.72 (1977).

The legislative history thus contemplates that en-

forcement actions brought by the Commission under

Section 706 would not differ in nature from govern-

ment enforcement actions under Section 707 or under

any other analogous law. When the Commission

brings suit under Section 706 to enforce the “over-

riding public interest in equal employment opportu-

nity” (118 Cong. Rec. 4941 (1972)), it thus should

not, under traditional principles, be subject to the

representational requirements of a class action under

Rule 23.

B. District Courts Possess Ample Power Under Section

- 706(¢) To Ensure Procedural Fairness To All Per-

sons Concerned In The Commission’s Litigation

Petitioners claim (Br. 22-28) that Rule 23 should

be applied to government enforcement actions under

Section 706 in order to achieve essentially two pur-

poses: to provide an early, clear definition to the

action and to protect defendants from duplicative

litigation and potentially conflicting decrees.” The

28 Petitioners also suggest (Br, 26-27) that class certifica-

tion would protect employees as well. But, as is discussed in

more detail at page 20, supra, may intervene in the Commis-

sion’s action and if they do not choose to do so they are not

bound by the judgment in that action (although in some cir-

court of appeals correctly rejected petitioners’ pro-

posed rationale for extending Rule 23 to government

enforcement litigation (Pet. App. A-21 to A-24).”

The argument that Rule 23 is necessary to define

the scope of the government’s suit plainly lacks merit.

Rule 23 is not a substitute for discovery. If a de-

fendant wishes to determine in more detail the pre-

cise contours of the Commission’s claim, the discovery

procedures of the Federal Rules provide ample, ap-

propriate means for obtaining that information. As

in all other civil litigation, responses made during

discovery will often be provisional; discovery is in-

tended to shape litigation, not prevent it. But class

definition and certification under Rule 23 also is pro-

visional. The definition of a class may be modified

at any time before the case is decided on the merits.

Fed. R. Civ. P. 23(c) (1). District courts have suffi-

cient means under the discovery rules to ensure that

the Commission’s claims in an enforcement action

are developed in a fair and timely manner.

The principal policy reason advanced by petitioners

for extending the certification requirement of Rule

23 to Commission enforcement actions is that it would

cumstances Title VII’s time limitations for filing a charge

with the Commission may, as a practical matter, eliminate

their alternatives) .

2° Petitioners’ proposed reasoning does not distinguish the

Commission’s Title VII litigation from any other government

enforcement action. Their arguments, though incorrect for

the reasons discussed in the text, would have been equally

applicable in Porter v. Warner Holding Co. or in other cases

involving government litigation affecting the interests of non-

party citizens. ‘

avoid duplicative or inconsistent adjudication for de-

fendants. But the possibility that separate private

and government actions may be brought under Sec-

tion 706 exists precisely because Congress provided

for both public and private remedies under Title VII.

Cf. Porter v. Warner Holding Co., supra, 328 U.S.

at 401-403. It is because of the separate private and

public enforcement procedures that courts have held

that a private plaintiff other than the charging party

named in the complaint (if any) is not bound by the

decree in a government enforcement action under

Title VII. Doninger v. Pacific Northwest Bell, Inc.,

564 F.2d 1304, 1807 (9th Cir. 1977); McClain v.

Wagner Electric Corp., supra, 550 F.2d at 1122;

United States v. Allegheny-Ludlum Industries, Inc.,

supra, 517 F.2d at 836-837, 840; Williamson v. Beth-

lehem Steel Corp., supra, 468 F.2d at 1203.” As this

Court pointed out with particular reference to Title

VII in Alexander v. Gardner-Denver Co., 415 U.S. 36,

47 (1974), “legislative enactments in this area have

long evinced a general intent to accord parallel or

overlapping remedies against discrimination.”

While we agree with petitioner that there is no

necessary bar to subsequent suits by individuals after

government enforcement actions are completed, as a

practical matter such suits are highly unlikely. More-

Congress was aware of the provisions of the Equal Pay Act

of 1963, 29 U.S.C. 206(d) and the Fair Labor Standards Act

of 1938, 29 U.S.C. 216(c), under which litigation by the

United States expressly precludes further private litigation,

Congress did not adopt similar provisions in Title VII.

over, the risk of duplicative litigation can be mini-

mized by the exercise of the district court’s equitable

powers under Section 706(g).

In the first place, if the government prevails in

its litigation, the district court may include a provi-

sion in its decree to condition the receipt of backpay

by any individual on the waiver of an his or her

personal right of action. Doninger v. Pacific North-

west Bell, Inc., supra, 564 F.2d at 1309; United

States v. Trucking Employers, Inc., 561 F.2d 318,

318 (D.C. Cir. 1977); United States v. Allegheny-

Ludlum Industries, Inc., supra, 517 F.2d at 853-862.

Because all relief under Title VII is equitable in

nature (42 U.S.C. 2000e-5(g)), double recovery for

any employee should not be permitted in the court’s

decree in any subsequent litigation.

If, on the other hand, the employer obtains a favor-

able judgment in the Commission’s action, the stare

decisis effect of such a decision can be expected to

deter any duplicative private litigation. See Katz v.

Carte Blanche Corp., 496 F.2d 747, 758-760 (3d

Cir.) (en banc), cert. denied, 419 U.S. 885 (1974);

Atlantis Development Corp. v. United States, 379

F.2d 818, 828 (5th Cir. 1967).

The danger of conflicting or duplicative litigation

under Title VII is thus sub::antially less than peti-

tioner asserts. As the court +’ appeals concluded in

this case, “courts may fashion appropriate orders to

insure that defendants are not subjected to double

payment or unnecessarily duplicative litigation. Un-

der their broad equitable powers the courts may

prescribe procedures and remedies which are fair

and equitable to all parties” (Pet. App. A-24). Cf.

Alexander v. Gardner-Denver Co., supra, 415 U.S. at

60 n. 21.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.