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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 318

## Text

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 |
4

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- ;
f

It
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

13

26

32
36

22
17
34, 36
35
11

19

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

IV

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

Vv
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

34
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

VI

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,
23

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)

2

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).

3

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

4

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

5

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

6

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).

7
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.

8

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).

9

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-

10

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).

11

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.

12

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.

13

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

14

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.

15

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.

16

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.

|
|
|

17

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).

18

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).

19

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

20

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.

21

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.

22

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

23

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.

24

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

25

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

26

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.

27

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-

28

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).

29

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

30

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).

31

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.

82

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-

33

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. ‘

34

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-

© Thus, in the 1972 amendments to Title VII, although
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.

35

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

36

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.

WADE H. MCCREE, JR.
Solicitor General

LAWRENCE G. WALLACE
Deputy Solicitor General

KENT L. JONES
Assistant to the Solicitor General
LEROY D. CLARK
General Counsel

JOSEPH T. EDDINS
Associate General Counsel

Lutz ALEXANDER PRAGER
VINCENT BLACKWOOD

Attorneys
Equal Employment Opportunity Commission

MARCH 1980

3 U.S. GOVERNMENT PRINTING OFFICE; 1960 314777 239

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0974%3A05. Public record. Not legal advice.