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

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Meioine Court, U, & Ee

No. 79-488

GENERAL TELEPHONE COMPANY OF THE

NORTHWEST, INC., et al.,

Petitioners,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

Of Counsel: AVRUM M. GOLDBERG

WILLIAM R. WEISSMAN

DEBORAH A. CALLOWAY

WALD, HARKRADER & Ross

ROBERT E. WILLIAMS

DouGLAs S. MCDOWELL

McGuINEss & WILLIAMS ;

1015 Fifteenth Street, N.W. a see

Washington, D.C. 20005 ashington, D.C.

(202) 828-1200

PHILIP ELMAN

1300 Nineteenth Street, N.W.

Washington, D.C. 20036

January 1980

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

NEST SET oN EST os IES OEMERNE ORES ~

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ......................

FACTS AND DECISION BELOW ......... 2...

SUMMARY OF ARGUMENT 200... ceeteeeeeee

PERT TSS SEINE a

I. THE 1972 AMENDMENTS TO SECTION 706

IT.

OF THE CIVIL RIGHTS ACT OF 1964 AU-

THORIZE THE EEOC TO SEEK CLASS-

WIDE RELIEF AGAINST EMPLOYMENT

DISCRIMINATION IN ACCORDANCE WITH

THE SAME PROCEDURES APPLICABLE TO

IDENTICAL PRIVATE SUITS ......0000200.......

A. Congress Did Not Change The Scope Of Sec-

tion 706 Actions When It Authorized The

EEOC To File Civil Actions Under That

I a ce

B. Congress Has Determined That The EEOC

Is A Suitable Rule 23 Class Representative

In Section 706 Actions ....................................

Ei EE

2. Adequacy of Representation and Typi-

RNS SE EERE

I a

EEOC COMPLIANCE WITH RULE 23 WILL

PROTECT THE INTERESTS OF AG-

GRIEVED PARTIES AND DEFENDANTS

WITHOUT UNDULY BURDENING EEOC’S

ENFORCEMENT ACTIVITY ...........20202020.0......

A. EEOC Compliance With Rule 283 Will Protect

Defendants’ Interests By Promoting Con-

gress’ Aim In Achieving Finality Of Litiga-

tion And Avoiding Unnecessary Duplication

iSO

ii iii:

TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page CASES: Page

B. EEOC Compliance With Rule 28 Will Protect Albemarle Paper Co. v. Moody, 422 U.S. 405

The Interests Of Aggrieved Individuals By | C19TB) nnn nsannsannnnverennvsenonneennnsecsnnseccnnsessonsecsennscces 10

Clarifying The Scope Of The Suit And By | Alexander v. Gardner-Denver Co., 415 U.S. 36

Imposing Court Supervision On The Action.. 30 | CRIED: iernescneneneeneten --20, 27, 28

American Pipe & Construction Co. V. Utah, ‘414

C. Application Of Rule 28 To EEOC Class Ac- RN a ars 27

tions Will Promote Title VII Enforcement Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th

By Encouraging Settlement And Improving i chk 20, 27

The Quality Of Relief Obtained _.......... 32 Butera v. Mountain States Telephone & Telegraph

D. The Fact That Rule 28 Has Not Been Applied Co., 18 FEP Cas. 1779 (D. Colo. 1977) ce... 26

To Section 707 Pattern Or Practice Suits Christiansburg Garment Co. v. EEOC, 484 U.S.

Does Not Justify The Same Result In EEOC GE CERT) kets acaneinntcaa attic nateaaesonntcones 2,3

Dethin Cee Cie eee 833 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ....... 2

Civil Service Commission v. National Association

CONCLUSION .... senccncseseeeees, BG of Letter Carriers, 418 U.S. 548 (1978) ............ 17

East Texas Motor Freight System, Inc. v. Rod-

rigues, 431 U.S. 806 (1977): 8, 16

EEOC v. AT&T, Civ. No. 78-149 (E.D. Pa., filed

I I a i rn te 26

EEOC v. Bumble Bee Seafoods Co.,19 EPD (CCH)

7 9160 (D. Ore. 1979) 0.02.2... 6

EEOC v. Continental Oil Co., 18 FEP Cas. 785

(D. Colo. 1975), aff’d, 548 F.2d 884 (10th Cir.

| RR a AE AOR a 6

EEOC v. Continental Oil Co., 548 F. 2d 884 (10th

Cir. 1977) . PE ee EME SRO Tose ea EE 21, 28

EEOC v. CTS of Asheville, Inc., 18 FEP Cas. 852

(Ope Logs | RR nee ee eee Ae 6

EEOC v. D. H. Holmes Co., 556 F.2d 787 (5th Cir.

1977), cert. denied, 486 US. 962 (1978) ...:......... passim

EEOC v. Datapoint Corp., 570 F.2d 1264 (5th

| ly FE. Seek is aes ts 2, 5, 24, 26, 27

EEOC v. Delaware Trust Co., 81 F.R.D. 448 (D.

Ng, en Es: See Re ORS ae 6, 26, 29

EEOC v. Delaware Trust Co., Civ. A. No. 75-157

CD. Dek Apes BE, A070) sc 24

EEOC v. E. 1. duPont de Nemours & Co., 516 F.2d

Fe Rae 20

TABLE OF AUTHORITIES—Continued

Page

EEOC v. Federal Reserve Bank, 21 FEP Cas. 742

CO Ts: Wet: DD Sieben ea ess 6

EEOC v. General Electric Co., 582 F.2d 359 (4th

Ce IIE viii iccceseciiee hictentnigeeeiensanedniaeaionaiinitie 20

EEOC v. Huttig Sash & Door Co., 511 F.2d 453

CER. GC, ROO aa neisctceniisitinsitintenninticiniidisateeeatabadiioes 28, 29

EEOC v. Kimberly-Clark Corp., 511 F.2d 1352

(6th Cir.), cert. denied, 423 U.S. 994 (1975) .... 20, 21,

EEOC v. Lutheran Hospital, 10 FEP Cas. 1177

6 8 RS emits Ornate coon Ser ol 6

EEOC v. Mid-City Care Center, 20 EPD (CCH)

T3020 (ww. cee, 1090) 6

EEOC v. Missouri Pacific Railroad, 498 F.2d 71

Cie ARI BID Sania cctacein thin pied teins actuals 28

EEOC v. Mobil Oil Corp., 362 F. Supp. 786 (W.D.

Be SII a haccdaciedcninninnctiariadeptishitcbtedes ease 6

EEOC v. Occidental Life Insurance Co., 535 F.2d

533 (9th Cir. 1976), aff’d, 482 U.S. 355 (1977).. 20

EEOC v. Pacific Press Publishing Association,

585 F.2d 1182 (9th Cir. 1976) .......20.. 12

EEOC v. Page Engineering Co., 17 FEP Cas. 1638

ok 9 RRR aN ar eet ns ee 6

EEOC v. Pinkerton’s, Inc., 14 FEP Cas. 1481

SU UI I ib nin ch nig tna cancneithsoncinamigine hens 6

EEOC v. Raymond Metal Products Co., 17 FEP

ae Se Ge: Te ee 6

EEOC v. Rexene Polymers Co., 10 FEP Cas. 61

Fal RP et ey HA 6

EEOC v. Schlueter Manufacturing Co., 17 FEP

Ce i Sa es SP es 6

EEOC v. Singer Controls Co. of America, 80

PBT. FE CRUD. Gino 1G TB) anion cncceen sets 6

EEOC v. Spector Freight Systems, Inc., 15 EPD

(CCH) 9 7967 (N.D. Miss. 1977) ........00.-000000..... 24

EEOC v. Stroh Brewery Co., 88 F.R.D. 17 (E.D.

SS TY intestate Se ee ee ees 6

TABLE OF AUTHORITIES—Continued

Page

EEOC v. United Air Lines, Inc., 515 F.2d 946

NR TRARSERITE BORE ARERR tan Ome 33

EEOC v. Vinnell-Dravo-Lockheed-Manniz, 417 F.

Supp. 5765 (E.D. Wash. 1976) -......0000......... oo. 6

EEOC v. Western Electric Co., 882 F.2d 793 (D.

ON GS ECE EAE SRG Ce a ie Fre a 29

EEOC v. Westinghouse Electric Corp., 81 F.R.D.

eS RED.) EAR RE Da Regt a 5, 6, 24, 25

EEOC v. Whirlpool Corp., 80 F.R.D. 10 (N.D.

UU iA i 6, 23

Franklin v. General Electric Co., 15 FEP Cas.

RS . ) RE Cs ee 30

Franks v. Bowman Transportation Co., 424 U.S.

ok gaa STC TE EERE NY ce Op 10, 19

Garner Vv. Teamsters Local No. 776, 346 U.S. 485

SII cca icin he a ea oar i 21, 22

Garnett v. Mountain States Telephone & Tele-

graph Co., 18 FEP Cas. 1773 (D. Colo. 1977).... 26, 30

Great American Federal Savings & Loan Associa-

tion Vv. Novotny, 442 U.S. 366 (1979) .......... 2

Gregory V. Litton Systems, Inc., 472 F.2d 631 (9th

Re ONES ao a ee 9

Hansberry v. Lee, 311 U.S. 82 (1940)... 27

Harris v. Anaconda Aluminum Co., 17 FEP Cas.

See Cras SD i ns 22, 24

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972). 18

Hunt v. Washington State Apple Advertising Com-

mission, 482 U.S. 888 (1977) ................................ 18

Hutchings v. United States Industries, Inc., 428

oe ee ee OE 22

IUinois Vv. Bristol-Myers Co., 470 F.2d 1276 (D.C.

SR PAREN) SEINE ATS RO A Ss OC 18

International Brotherhood of Teamsters v. United

Saat, Gan Gi Bae Cat T) os 8, 34

Jenkins v. United Gas Corp., 400 F.2d 28 (5th

PACE CUR I RI Bee SEE CR 9, 20

Johnson v. Georgia Highway Express, Inc., 417

F.2d 1122 (5th Cir. 1969)

TABLE OF AUTHORITIES—Continued

Page

Johnson V. Nekoosa-Edwards Paper Co., 558 F.2d

841 (8th Cir.), cert. denied, 484 U.S. 920

ep SEESIR BN SEB GEIR cnc PRUE Te Gee ISO ORT SATE 20

LaCombe v. Mountain States Telephone & Tele-

graph Co., 18 FEP Cas. 1774 (D. Colo. 1977).. 26

Leisner v. New York Telephone Co., 358 F. Supp.

ee Ee: SED ha hae a 31

McClain v. Wagner Electric Corp., 550 F.2d 1115

(8th Cir. 1977) 28, 29

McDonnell Douglas Corp. v. Green, 411 U.S. 792

RE Se ae ROE EY Re aR oe 28

National Motor Freight Traffic Association Vv.

United States, 372 U.S. .246 (1968) 0. 17

Norwalk CORE v. Norwalk Redevelopment

Agency, 395 F.2d 920 (2d Cir. 1968) .........--- 17

Occidental Life Insurance Co. v. EEOC, 482 U.S.

I I iN er 9, 18, 21, 22

Peals v. Southwestern Bell Telephone Co., 18 FEP

Sec epee: COs ROMO Sik sree a 26, 30

Rodriguez v. East Texas Motor Freight, 505 F.2d

40 (5th Cir. 1974), vacated, 481 U.S. 395

Of RR ERC A LEC AEE 6 ORT REE 25

Schlesinger v. Reservists Committee to Stop the

ar; See ek ee LATO? ce 16

Smith v. Board of Education, 365 F.2d 770 (8th

8 TESS aE oe OC 17

Stevenson v. International Paper Co., 516 F.2d 108

SS 29

Stuart v. Hewlett-Packard Co., 66 F.R.D. 73 (E.D.

| A | SEM BR Pe Creer sch 6, 30

Undergraduate Student Association v. Peltason,

859 F. Supp. 320 (N.D. Ill. 1978) .........0-000.. 17

UAW Local 288 v. Scofield, 882 U.S. 205 (1965)... 21

United States v. Allegheny-Ludlum Industries,

Inc., 517 F.2d 826 (5th Cir. 1975), cert. denied,

Ge Write Ne CRT anise Me. 25, 33

United States v. Borden Co., 847 U.S. 514 (1954). 20

- Vii

TABLE OF AUTHORITIES—Continued

Page

United States v. City of Jackson, 519 F.2d 1147

CRRA TRerS PTD ci ee Fe 31

United States v. Proctor & Gamble Co., 356 U.S.

eb PURER eh CAO. Ai WARE eh ee OE LHe ere 11

Walker v. Southwestern Bell Telephone Co., 18

FEP Cas. 1784 (N.D. Tex. 1978) .............000........ 26, 30

Warth Vv. Seldin, 422 U.S. 490 (1975) ......00000 17

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

(2d Cir. 1972), cert. denied, 411 U.S. 981

CDOTS eincniinn PRES Fae ae 25

STATUTES AND RULES:

ee Se I icccdatinscnccteAtccdentcclck adbieandatand ca ee 12

Civil Rights Act of 1870:

Section 16, 42 U.S.C. § 19811 .............................. 2

Civil Rights Act of 1964, as amended:

Title VII, 42 U.S.C. § 2000e et seq. anccmaisindogpins 2

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

Section 706(a), 42 U.S.C. § 2000e-5(a) _...... 9,11

Section 706(b), 42 U.S.C. § 2000e-5(b) _...... 11

Section 706(e), 42 U.S.C. § 2000e-5(e) _....... 11, 30

Section 706(f), 42 U.S.C. § 2000e-5(f) _....... 30

Section 706(f)(1), 42 U.S.C. § 2000e-5(f)

RIN scincnsainets Sueateichccekcociniaataemaaieseian samara 7,10, 11, 28, 34

Section 706(f) (2), 42 U.S.C. § 2000e-5(f)

) | TEE SAAR aes eee BOL eA OS Cw Aes On 12

Section 706(g), 42 U.S.C. § 2000e-5(g) _...... 5, 38

Section 707, 42 U.S.C. § 2000e-6 ____.. 5, 9, 10, 14, 38, 34

Section 707 (a), 42 U.S.C. § 2000e-6 (a) _......... 7

Section 707 (e), 42 U.S.C. § 2000°> 6(e) _......... 34

Federal Rules of Civil Procedure:

| eee 11

| Rea a 14

> Noa he na heey adhd Canes La aE Seal ot 7

viii

TABLE OF AUTHORITIES—Continued

Page

I i ee passim

EE We Re eee > HST 4, 5, 16,17, 18

Rule 23 (a) (3) it sili 22

i ee 27,31

I a le 81

EEE RETORTED 31

I 22, 31

ENA AS RP ee SR CO EN SERGI 9S: 14

8 SES a eee, Se MON, © OO. 12

Se IE Ne Rae ehay free ew 12

EIR Ne ORAS, IEA ER 12

RS _” SRESIRSRRRED Nan ONE Seca E MO a/R 12

Local Rules of the Western District of Washington

te RRR ER pets oe! eaheaies, RlaE ohs e te 3

MISCELLANEOUS:

Advisory Committee Notes, 39 F.R.D. 69 (1966).... 26, 27

Bumpass, The Application of Rule 23 of the Fed-

eral Rules of Civil Procedure to Actions Brought

by the Equal Employment Opportunity Commis-

sion, 29 CASE W. REs. L. REV. 348 (1979) ........ 6, 15, 22,

23, 34

Comment, Certification of Class Suits Under Rule

23, 46 U. CuI. L. REv. 690 (1979).......... 6, 11, 17, 19, 21,

22, 25, 31, 32, 34

Developments in the Law—Employment Discrimi-

nation and Title VII of the Civil Rights Act of

1964, 84 Harv. L. REv. 1109 (1971) ......000020000.... 9

Holtzoff, Procedural Rules When Government Is A

Litigant, 26 A.B.A.J. 891 (1940) Fh 11

3B Moore’s FEDERAL PRACTICE, {| 23.04[3] (2d ed.

SMEAR Rae eR Rare aon jt PLANS ANG, Saks LINE 17

Reiter, The Applicability of Rule 23 to EEOC

Suits: An Examination of EEOC v. D. H.

Holmes Co., 28 SYRACUSE L. REV. 741 (1977)... 6

SCHLEI AND GROSSMAN, EMPLOYMENT DISCRIMI-

NATION LAW (1976) .................. ane 82

TABLE OF AUTHORITIES—Continued

Page

SENATE COMM. ON LABOR AND PUBLIC WELFARE,

92D CONG., 2D SESS., LEGISLATIVE HISTORY OF

THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF

UOTe CEGTAE mccicnses 9, 10, 18, 14, 15, 18, 19, 24, 27, 28, 34

4 WRIGHT & MILLER, FEDERAL PRACTICE & PROCED-

5 E.R nee. IN 11

7 WRIGHT & MILLER, FEDERAL PRACTICE & PROCED-

I a sc ecitaduwmeaiion 30

7 WRIGHT & MILLER, FEDERAL PRACTICE & PROCED-

ee 17

7 WRIGHT & MILLER, FEDERAL PRACTICE & PROCED-

sR IRIE ener eb aeh oee 23

7A WRIGHT & MILLER, FEDERAL PRACTICE & PRO-

rs 27

Zimmer & Sullivan, Consent Decree Settlements by

Administrative Agencies in Antitrust and Em-

ployment Discrimination: Optimizing Public and

Private Interests, 1976 DUKE L.J. 163 (1976)... 26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-488

GENERAL TELEPHONE COMPANY OF THE

NORTHWEST, INC., e¢ al.,

Petitioners,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

INTEREST OF THE AMICUS CURIAE

This brief of the Equal Employment Advisory Council

(““EHAC”) as amicus curiae in support of petitioners is

submitted with the written consent of all parties.’

EEAC is a voluntary, nonprofit association organized as

a corporation under the laws of the District of Columbia.

1 Their consents have been filed with the Clerk of the Court.

—

EEAC was founded to represent and promote the com-

mon interest of employers and the general public in

developing and implementing sound government policies,

procedures and requirements pertaining to nondiscrimina-

tory employment practices. Its membership comprises

a broad segment of the employer community in the

United States, including both individual employers as

well as trade and industry associations whose employer-

members have a common interest in the foregoing pur-

poses. Its governing body is a Board of Directors com-

posed primarily of experts and specialists in the field of

equal employment opportunity, whose combined experi-

ence gives the Council a unique competence and under-

standing of the practical and legal aspects of equal em-

ployment opportunity policies.

Substantially all of EEAC’s members, or their con-

stituents, are employers subject to the provisions of Title

VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seg., Section 16 of the Civil Rights Act

of 1870, 42 U.S.C. § 1981, and various other federal or-

ders and regulations pertaining to nondiscriminatory em-

pleyment practices. As such, they have a direct interest

in the issue presented by the instant case, 7.e., whether

the certification procedures of FED. R. Civ. P. 23 apply

to a civil action filed by the EEOC under Section 706 of »

Title VII seeking class relief. Because of this interest,

EEAC has been permitted to participate as amicus curiae

- in the court below and in other courts of appeals involv-

ing the same or similar issues. See EEOC v. D. H. Holmes

Co., 556 F.2d 787 (5th Cir. 1977), cert. denied, 436 U.S.

962 (1978); EEOC v. Datapoint Corp., 570 F.2d 1264

(5th Cir. 1978). The EEAC has also filed briefs as

amicus curiae in cases in this Court involving important

equal opportunity issues. See, e.g., Great American Fed-

eral Savings & Loan Association v. Novotny, 442 US.

366 (1979); Chrysler Corp. v. Brown, 441 U.S. 281

(1979) ; Christiansburg Garment Co. v. EEOC, 434 US.

412 (1978); Hast Texas Motor Freight System, Inc. Vv.

Rodriguez, 431 U.S. 395 (1977) ; International Brother-

hood of Teamsters v. United States, 431 U.S. 324

(1977).

FACTS AND DECISION BELOW

The proceedings below arose out of a suit filed in the

United States District Court for the Western District

of Washington by the EEOC pursuant to Section 706 of

Title VII of the Civil Rights Act of 1964, as amended

by the Equal Employment Opportunity Act of 1972, 42

U.S.C. § 2000e-5. In its amended complaint, the EEOC

alleged that defendants, General Telephone, one of its

subsidiaries, and a local union of the International

Brotherhood of Electrical Workers, had discriminated

against women employees. The complaint sought, inter

alia, a permanent injunction and an order requiring the

defendants to provide back pay to a class of individuals

allegedly affected by the challenged practices. Pet. App.

A7.2, The EEOC identified the class as “ ‘all female em-

ployees, female applicants for employment and women

who would have applied but for the alleged unlawful

discrimination.’” Pet. App. A7 n.1. Defendants moved

to dismiss the class action aspects of the complaint on

the grounds that the EEOC failed to comply with Rule

23 of the Federal Rules of Civil Procedure and the dis-

trict court’s Local Rule 23.* Pet. App. A26.

2“Pet. App.” refers to the appendix of the Petition for Certiorari

filed in this case.

3 Fep. R. Civ. P. 23 permits the consolidation of a large number

of individual claims in a single lawsuit. It sets forth procedures

to determine the adequacy of the class representative and the

appropriateness of maintaining the suit as a class action. The

principal effect of applying Rule 23 to Section 706 suits brought by

the EEOC is to assure finality to a litigated judgment, thereby

avoiding a multiplicity of suits involving the same claim of dis-

crimination and the same defendant. Local Rule 23 of the Western

District of Washington prescribes the procedural steps for securing

district court certification of the proposed class.

A United States Magistrate, acting as a Special Master,

determined in a Report and Recommendation, later

adopted by the district court, that the EEOC could pro-

ceed with the class action aspects without satisfying the

requirements of Rule 23, and denied the motion to dismiss.

Pet. App. A25-A32.* The district court expressly declined

to follow the Fifth Circuit’s contrary decision in EEOC

v. D. H. Holmes Co., 556 F.2d 787 (5th Cir. 1977), cert.

dented, 436 U.S. 962 (1978). Pet. App. A26, A832.

On June 27, 1979, the Court of Appeals for the Ninth

Circuit, affirmed the order in an opinion written by

Senior District Judge Jameson.’ The court recognized

that by virtue of the 1972 amendments to Title VII,

Congress had authorized the EEOC to file class action

suits seeking to redress the grievances of others, but con-

cluded that Congress had failed to specify whether such

EEOC class action suits are subject to the certification

requirement of Rule 23. Pet. App. A8-A16. The court

also concluded that application of Rule 23 to individual

Section 706 class suits does not mandate EEOC compli-

ance with Rule 23 because of a dichotomy that the

court perceived between EEOC’s litigation role under

Section 706, which is to vindicate the public interest,

and that of private plaintiffs who seek to redress their

private injury. Pet. App. A16-Al8. The court ex-

amined the principal Rule 23 prerequisites for class

certification to determine whether EEOC could satisfy

those requirements consistent with its statutory man-

date under Section 706, and concluded that the EEOC

would have no difficulty qualifying under the member-

ship and adequacy of representation requirements of

Rule 23(a), by virtue of the congressional determination

that “the EEOC is a ‘properly suing party’... [and]

*The district court’s opinion is reported at 16 FEP Cas. 476

(W.D. Wash. 1977).

5 The opinion is reported at 599 F.2d 322 (9th Cir. 1979).

an adequate representative of victims of employment dis-

crimination.” Pet. App. All-A12, A21. The court, how-

ever, perceived an obstacle to qualification under the typi-

cality of claims or defenses requirement because of the

dichotomy of interests it believed existed between the

interests of private individuals and the EEOC’s public

interest duty under Section 706. Pet. A12. Nonetheless,

in an about-face, the court held that the EEOC satisfies

the Rule 23(a) certification requirements. Pet. App. A21.

Despite this conclusion, the court still refused to apply

Rule 23 to EEOC suits under Section 706. First it com-

pared the EEOC suits authorized by Sections 706 and 707,

and found little practical difference between the two

actions. Since Rule 28 had not been made applicable to

Section 707 pattern or practice cases, the court could

find no reason to distinguish between the two types of

actions insofar as the applicability of Rule 23 was con-

cerned. Pet. App. Al8-A21. Second, the court was con-

cerned that the class certification process would be “time

consuming and costly,” and “serve no useful purpose in

the final disposition of the case.” Pet. App. A23. Fi-

nally, although acknowledging the necessity of providing

Title VII litigants the procedural safeguards embodied in

Rule 23, the court believed that the authority of district

courts under Section 706(g), 42 U.S.C. § 2000e-5(g), to

fashion broad, equitable, substantive relief also permits

trial judges to adopt Rule 23’s procedural safeguards

without actually certifying the case under that rule. Pet.

App. A21-A23.

The Ninth Circuit’s decision in this case conflicts with

the Fifth Circuit’s holding in Holmes that Rule 23 ap-

plies to EEOC suits for class relief under Section 706.

See also EEOC v. Datapoint Corp., supra, 570 F.2d at

1268. The district courts are also in conflict over

this issue. Not unexpectedly, this spreading conflict

® Cases holding Rule 23 applicable to EEOC suits include: EEOC

v. Westinghouse Electric Corp., 81 F.R.D. 528, 529 (M.D.N.C.

in the courts has spawned a similar debate among

commentators.”

SUMMARY OF ARGUMENT

The 1972 amendments to Title VII of the Civil Rights

Act of 1964 made two major changes respecting judicial

enforcement of the statute, one of which is directly rele-

vant to the instant case. In the relevant change, an

amendment to Section 706, Congress granted authority

1979) ; EEOC v. Delaware Trust Co., 81 F.R.D. 448 (D. Del. 1979) ;

EEOC v. Page Eng’r Co., 17 FEP Cas. 1688 (N.D. Ill. 1978);

EEOC v. Continental Oil Co. 13 FEP Cas. 785 (D. Colo. 1975),

aff'd on other grounds, 548 F.2d 884 (10th Cir. 1977).

Decisions holding to the contrary include: EEOC v. Federal Re-

serve Bank, 21 FEP Cas. 742 (W.D. Tenn. 1979) ; EEOC v. Bumble

Bee Seafoods Co., 19 EPD {9160 (D. Ore. 1979) ; EEOC v. Mid-

City Care Center, 20 EPD (CCH) { 30,275 (W.D. Tenn. 1979);

EEOC v. Stroh Brewery Co., 83 F.R.D. 17 (E.D. Mich. 1979);

EEOC v. Singer Controls Co. of America, 80 F.R.D. 76 (N.D. Ohio

1978) ; EEOC v. Raymond Metai Prod. Co., 17 FEP Cas. 206 (D.

Md. 1978); EEOC v. Schlueter Mfg. Co., 17 FEP Cas. 53 (E.D.

Mo. 1978); EEOC v. Whirlpool Corp., 80 F.R.D. 10 (N.D. Ind.

1978); EEOC v. Pinkerton’s, Inc., 14 FEP Cas. 1431 (W.D.

Pa. 1977) ; EEOC v. Vinnell-Dravo-Lockheed-Mannix, 417 F. Supp.

575, 577 (E.D. Wash. 1976) ; EEOC v. CTS of Asheville, Inc., 13

FEP Cas. 852 (W.D.N.C. 1976); EEOC v. Rexene Polymers Co.,

10 FEP Cas. 61 (W.D. Tex. 1975); Stuart v. Hewlett-Packard Co.,

66 F.R.D. 73 (E.D. Mich. 1975) ; EEOC v. Lutheran Hosp., 10 FEP

Cas. 1177 (E.D. Mo. 1974) ; and EEOC v. Mobil Oil Corp, 362 F.

Supp 786, 792 (W.D. Mo. 1973).

7 Two commentators have supported the position that Rule 23

applies to EEOC suits. See Comment, Certification of Class Suits

Under Rule 23, 46 U. Cut. L. REv. 690 (1979) (hereinafter “Com-

ment”); Bumpass, The Application of Rule 23 of the Federal

Rules of Civil Procedure to Actions Brought by the Equal Em-

ployment Opportunity Commission, 29 CASE W. RES. L. REV. 343

( 1979) (hereinafter “Bumpass’”). One commehtator has taken the

opposite view. See Reiter, The Applicability of Rule 23 to EEOC

Suits: .An Examination of EEOC v. D.H. Holmes Co., 28 SYRACUSE

L. REV. 741 (1977).

to the EEOC to institute suits in federal district court

based upon a charge filed with the Commission by an

individual alleging a violation of the Act.* The second

major change, not directly relevant here, was an amend-

ment to Section 707 whereby Congress transferred to the

EEOC from the Attorney General authority to institute

pattern or practice suits in the federal courts.’

Prior to the amendments, only an individual charging

that he or she had been injured by a violation of the Act

was permitted to initiate a Section 706 suit. The courts

had determined that such actions, although grounded in

an individual charge, could qualify for class treatment,

provided that the provisions of Rule 23 of the Federal

Rules of Civil Procedure were satisfied.

The authority granted by the 1972 amendments to the

EEOC to sue on behalf of aggrieved individuals does not

otherwise alter the nature of a Section 706 suit. There

is no basis—either in the statutory language, legislative

history, or considerations of policy—for construing the

1972 amendments as creating two different procedures in

Section 706 cases—one applicable to suits brought by

private litigants, the other applicable to cases brought

by the EEOC on behalf of aggrieved private individuals—

when the scope of available remedies and the standards

of proof and liability are the same regardless of the

plaintiff’s identity. The legislative history of the amend-

ments, in fact, provides affirmative support for the posi-

tion that EEOC class-wide suits, like identical private

suits, are subject to the procedural requirements of Rule

23.

II.

Application of Rule 23 to suits brought by the EEOC

in no way impairs the ability of the agency to carry out

8 § 706(f) (1), 42 U.S.C. § 2000e-5(f) (1).

®§ 707(a), 42 U.S.C. § 2000e-6(a).

its enforcement responsibility. The rule simply provides

a procedural framework for discharging that respon-

sibility and assuring fairness to all parties, including the

individuals for whose benefit the EEOC has filed suit.

The purposes served by Rule 23 apply uniformly to all

Section 706 class actions, regardless of the identity of

the representative plaintiff. Rule 23 aids in early defini-

tion of the class, thereby permitting aggrieved individuals

to determine whether their interests are being repre-

sented by the named plaintiff. It also provides notice to

defendants of the scope of the charges against them.

The rule provides for increased judicial control of the

litigation to assure that the interests of absent class

members are adequately protected, particularly if the

litigation is to be settled. And lastly, the rule advances

the congressional interest in finality of proceedings and

avoidance of duplicative litigation, a major concern un-

der Section 706 because of the existence of parallel EEOC

and private litigation remedies. These interests are no

less important when the EEOC brings a class action un-

der Section 706 than when a private plaintiff initiates

the identical suit under the same statute.

ARGUMENT

I, THE 1972 AMENDMENTS TO SECTION 706 OF THE

CIVIL RIGHTS ACT OF 1964 AUTHORIZE THE

EEOC TO SEEK CLASS-WIDE RELIEF AGAINST

EMPLOYMENT DISCRIMINATION IN ACCORD-

ANCE WITH THE SAME PROCEDURES APPLI-

CABLE TO IDENTICAL PRIVATE SUITS

A. Congress Did Not Change The Scope Of Section

706 Actions When It Authorized The EEOC To

File Civil Actions Under That Section

The class action procedures of Rule 23 apply when a

private party claimant brings a class suit under Section

706 of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e-5, for redress of unlawful employment

discrimination. The question is whether these Rule 23

procedures do not apply whenever, and merely because,

the class suit is brought by the EEOC.

Before 1972, only an aggrieved private party had au-

thority to institute such litigation,’® and where the relief

sought extended to a class against whom discrimination

was directed, the class action procedures of Rule 23 ap-

plied". The government’s litigation role during this

period was limited to suits challenging a “pattern or

practice” of discrimination, which only the Attorney Gen-

eral (pursuant to Section 707 of the Act) could file.”

The EEOC’s enforcement authority was restricted to

seeking voluntary compliance through “informal methods

of conference, conciliation and persuasion.” * Originally,

in 1964, Congress expected that the majority of discrimi-

nation cases would be resolved outside of court,“ but where

litigation became necessary, two wholly different remedies

were provided—the public’s broad interest in combatting

patterns of discriminatory conduct was assigned by Sec-

tion 707 to the Attorney General for enforcement, while

10 See, e.g., Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359

(1977).

11 See, e.g., Gregory v. Litton Sys., Inc., 472 F.2d 631, 633 (9th

Cir. 1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d

1122, 1123-25 (5th Cir. 1969); Jenkins v. United Gas Corp., 400

F.2d 28, 33-35 (5th Cir. 1968). See generally Developments in the

Law—Employment Discrimination and Title VII of the Civil

Rights Act of 1964, 84 Harv. L. REv. 1109, 1219 (1971).

12 Section 707 contained no provision for a private right of ac-

tion.

18 Civil Rights Act of 1964, § 706(a), Pub. L. No. 88-352, 78 Stat.

259 (1964) ; see SENATE COMM. ON LABOR & PUBLIC WELFARE, 92d

ConG., 2d SESS., LEGISLATIVE HISTORY OF THE EQUAL EMPLOYMENT

OPPORTUNITY ACT OF 1972, at 413 (1972) (hereinafter “LEGISLA-

TIVE HISTORY’’).

14 Td, at 414.

Section 706(f) (1) granted the private victim of dis-

crimination remedies to redress individual and class

discrimination.

The primary purpose of the 1972 amendments was to

grant some form of enforcement authority to EEOC to

increase the effectiveness of its conciliation process. Al-

though alternative methods of enforcement were actively

considered,'* the amendments, as finally adopted by Con-

gress, did not change the fundamental nature of the two

different judicial remedies created by Sections 706 and

707; rather they gave to the EEOC standing to initiate

actions under Section 706 to redress discrimination by

non-government employers against private victims, and

substituted the EEOC for the Attorney General in Sec-

tion 707 pattern or practice actions. Sections 706 & 707,

42 U.S.C. §$§ 2000e-5, 2000e-6. By so doing, Congress in

no way changed the essential character and purpose of

Section 706, 7.e., to redress private discriminations. The

amendments left intact the basic nature of a Section 706

suit, whether the plaintiff be a private individual or the

EEOC suing as representative and on behalf of private

individuals. In either event, a suit under Section 706 is

the vehicle by which Congress sought to implement the

goal at the heart of Title VII, “to make persons whole for

injuries suffered on account of unlawful employment dis-

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

405, 418 (1975). See Franks v. Bowman Transportation

Co., 424 U.S. 747, 763-64 (1976).

The court below held that, when the EEOC brings a

Section 706 action seeking class relief, it need not comply

with the requirements of Rule 23 even though the reme-

dies sought are identical to those available to a private

party plaintiff in an identical class action suit. The

15 See, e.g., id. at 63-64, 413-14.

16 See note 20 infra.

decision rests on an incorrect construction of Title VII,

supported neither by the language nor the legislative

history of the 1972 amendments, and is reminiscent of

the long-discredited notion that government agencies are

not subject to the same procedural rules that apply to

other litigants."

Consider first the statutory language. In the 1972

amendments, Congress first added an introductory sub-

section to Section 706 declaring that the EEOC “is em-

powered, as hereinafter provided, to prevent any person

from engaging in any unlawful employment practice.”

Section 706(a), 42 U.S.C. § 2000e-5(a). It then amended

relettered subsection (f) to provide that, if the Com-

mission cannot secure a satisfactory conciliation agree-

ment through its internal procedures, “the Commission

may bring a civil action against any respondent not a

government, governmental agency, or political subdivision

.... Section 706(f) (1), 42 U.S.C. § 2000e-5(f) (1). It

went on to make certain changes in procedures before the

EEOC. Sections 706(b) and (e), 42 U.S.C. §§ 2000e-5

(b) & (e). Before the 1972 amendments, only a private

and injured party could bring such a civil action. See

note 10 supra and accompanying text.

Implicit in the 1972 amendments is the premise of the

general applicability of the Federal Rules of Civil Proce-

dure, and conspicuous by its absence is any evidence what-

soever that Congress intended to alter the procedural re-

quirements otherwise applicable to Section 706 civil

actions in federal district courts.’* Rule 1 of the Federal

17 See United States v. Procter & Gamble Co., 356 U.S. 677, 681

(1958); 4 WriGHT & MILLER, FEDERAL PRACTICE & PROCEDURE

§ 1027, at 118-19 (1969); Holtzoff, Procedural Rules When Gov-

ernment Is a Litigant, 26 A.B.A.J. 391 (1940) ; Comment, supra note

7, 46 U. Cui. L. REv. at 699 n.63.

18 Although the statutory language contains no express require-

ment that EEOC comply with Rule 23, it is apparent that Congress

assumed the general applicability of the Federal Rules, see note 21,

Rules of Civil Procedure, which declares them applicable

“in all suits of a civil nature,” refers to Rule 81 for a

list of exceptions, and EEOC actions under Section 706

are not included in the long list of exceptions.’® The

importance and weight of the procedural requirements

embodied in the Federal Rules are reflected in the pre-

cise and complex manner Congress deliberately chose for

promulgating and amending those Rules. See 28 U.S.C.

§ 2072. A departure from the Rules, especially one com-

pletely abrogating an entire rule for an entire class of

lawsuits, is not lightly to be inferred from an Act of Con-

gress that does not explicitly amend the Federal Rules or,

indeed, even mention Rule 23.

Just as the language of the 1972 amendments to Sec-

tion 706 does not justify the view that Rule 23 has been

abrogated for Section 706 actions brought by the EEOC,

so too the legislative history provides not even a prop

infra, and only made explicit reference to specific rules when the

statutory language appeared to render a rule inapposite. Section

706(f)(2), 42 U.S.C. § 2000e-5(f) (2), is an example of a provision

added to Title VII by the 1972 amendments where it was necessary

to refer to a particular Federal Rule that otherwise would not have

been applicable. This section permits the EEOC to file an action in

district court for “temporary or preliminary relief,” not as an

initial step in a suit ultimately seeking a permanent injunction,

but to aid the agency in discharging its role as conciliator. See

EEOC v. Pacific Press Publishing Ass’n, 535 F.2d 1182, 1185 (9th

Cir. 1976). Without a specific reference, Rule 65, which is directed

to interlocutory preliminary injunctions and temporary restraining

orders, would have been inapplicable to actions under Section 706

(f) (2) where “temporary or preliminary relief” constitutes a final

judgment. Furthermore, the rule may otherwise also have been

inapplicable to Section 706(f)(2) suits because, by its terms, it does

not apply where it would modify a federal statute “relating to

temporary restraining orders and preliminary injunctions in actions

affecting employer and employee.” FED. R. Civ. P. 65(e).

19 In contrast to the omission of EEOC Section 706 suits, Rule 81

expressly exempts proceedings to enforce orders of the National

Labor Relations Board, including back pay orders. See FEb. R. Civ. P.

81(a) (5); EEOC v. D. H. Holmes Co., supra, 556 F.2d at 795.

for the decision below. On the contrary, the legislative

history confirms that Congress intended full application

of the Federal Rules to EEOC actions under Section 706

and, more specifically, that Congress understood the class

action nature of Section 706 actions when it granted the

EEOC standing to bring such actions, and assumed that

Rule 23 would apply whether the suit was brought by

private individuals or by the EEOC in its own name on

their behalf.

Indeed, the Senate and House floor debates *° indicate

that one principal reason Congress chose to strengthen

the EEOC’s hand by permitting it to file court suits rather

than issuing cease and desist orders was a strong desire,

clearly expressed again and again throughout the debates,”

20 The Congressional purpose behind the enforcement provisions

of the 1972 amendments must be derived from the floor debates

rather than from committee reports because in both the House and

the Senate, the bills reported out of Committee providing for EEOC

cease and desist authority were rejected on the floor after lengthy

debate and replaced by language authorizing the EEOC to file suit

in Federal District Court. See Occidental Life Ins. Co. v. EEOC,

482 U.S. 855, 361-64 (1977). Thus, the Committee Reports discuss

only the rejected cease and desist provisions and the Conference

Report merely states that both the House and Senate authorized

EEOC to bring civil actions. See LEGISLATIVE HISTORY at 68-71,

426-431, 1815.

21 See, e.g., LEGISLATIVE HISTORY at 201 (Statement of Rep. Quie:

“(T]he procedural . . . safeguards for all the parties involved would

be far more adequately assured under the direct court approach”’) ;

id. at 221 (Statement of Rep. Railsback expressing concern that “the

procedural rules governing administrative hearings are virtually

nonexistent”); id. at 226 (Statement of Rep. Mazzoli, co-sponsor

of amendments ultimately adopted in the House, referring to the

Committee Report statement that “[a]dministrative tribunals are

better suited to rapid resolution . . . [because they] are less subject

to technical rules,” wherein the Congressman stated, “I am wonder-

ing if perhaps in trying to avoid overburdening the Federal Court

system, we will overburden alleged defendants’’) ; id. at 278 (State-

ment of Rep. Mazzoli emphasizing the importance of “granting each

party his day in court and the fullest protection of all rules, proce-

dural and evidentiary”) ; id. at 807 (Statement of Sen. Allen arguing

in favor of court enforcement so that defendants have the protections

to assure all parties the procedural protections of the Fed-

eral Rules of Civil Procedure and the traditional judicial

rules of evidence. It therefore was no more necessary for

Congress to specify Rule 23 in a statute authorizing the

EEOC to file class action suits than it was to specify Rule

8 because such suits are commenced by the filing of a com-

plaint or Rule 26 because the EEOC would be subject to

discovery. It is quite common that the obvious does not

have to be spelled out; no significance can attach to the

fact that Congress saw no need to do so in this statute.

More specifically, Senator Javits, a floor manager of the

1972 legislation and the ranking minority member of the

Committee that reported it, pointed out to the Senate

that it was by virtue of Rule 23 that EEOC would have

authority to secure class relief when suing under Section

706. Thus, during debate on a proposed amendment to

Section 707, Senator Javits, referring to the Senate’s

vote of the previous day to authorize EEOC suits under

Section 706, explained that if EEOC “can sue for an

individual claimant, then . . . [it] can sue for a group of

claimants,” since “this is provided for by the rules of civil

procedures in the Federal courts.” ** Senator Javits went

on to state:

“of the customary and time-honored rules of evidence and pro-

cedure’) ; id. at 1003 (Statement of Sen. Ervin asserting that the

court enforcement amendment “affords an adequate procedure by

which the EEOC .. . can have a right of vindication in the court

according to the established rules of procedure and the established

rules of evidence’’); id. at 1429 (Statement of Sen. Javits: “The

last item, which I think bears repetition . .. is that ... [u]nder

our [court enforcement] amendment, not only the rules of evidence,

but the rules of civil procedure . . . will be applicable”) ; id. at 1485

(Statement of Sen. Dominick: “[Y]ou can do far better in a court

proceeding which is impartial, organized, and ruled by precedent

and established rules of procedure than you can from an adminis-

trative proceeding’).

22 Id. at 1589.

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[s] the op-

portunity to engage in the Federal court in class ac-

tions by properly suing parties. We ourselves have

given permission to the EEOC to be a properly suing

party.”

Senator Williams, the Committee Chairman and floor

manager of the bill, also demonstrated his awareness that

Title VII litigation generally takes the form of class ac-

tions and sought to assure that the availability of such

actions and the procedural rules governing them would

not be disturbed by authorizing the EEOC to bring such

actions. Thus, Senator Williams stated in a section-by-

section analysis:

In -stablishing the enforcement provisions under

this subsection [706(f) (1)] and subsection 706(f)

generally, it is not intended that any of the provisions

contained therein are designed to affect the present

use of class action lawsuits under Title VII in con-

junction with Rule 23 of the Federal Rules of Civil

Procedure. ... [T]he leading cases in this area to

date have recognized that Title VII claims are neces-

sarily class action complaints... .*

There is nothing in the Senator’s statement that even in-

timates that EEOC class actions are to be treated dif-

ferently from private class actions from the standpoint

of Rule 23.

Plainly, these statements by the leading members of

Congress responsible for the 1972 amendments squarely

contradict the conclusion below that Congress did not

28 Jd. at 1590. The import of Senator Javits’ remarks is analyzed

in detail in Bumpass, supra note 7, 29 CASE W. REs. L. REV. at

354-57.

24 LEGISLATIVE HISTORY at 1773. See id. at 1847.

intend Rule 23 to apply to Section 706 actions brought by

the EEOC.

B. Congress Has Determined That The EEOC Is A

Suitable Rule 23 Class — In Section

706 Actions

A major thrust in the EEOC’s argument below and in

other courts where the applicability of Rule 23 to EEOC

suits has been raised is its claim that it is incapable of

satisfying the Rule 23 prerequisites for class certification.

Rule 23(a) provides that a party may sue as a class

representative if it is a member of the class and if:

(1) the class is so numerous that joinder of all mem-

bers is impracticable, (2) there are questions of law

or fact common to the class, (3) the claims or de-

fenses of the representative parties are typical of

the claims or defenses of the class, and (4) the repre-

sentative parties will fairly and adequately protect

the interests of the class.

The court below seemed to agree with many of the

EEOC’s arguments that it was incapable of satisfying

the Rule 23 requirements, although at another point in

its opinion it reached the opposite conclusion. Compare

Pet. App. All-A12 with id. A21. A canvass of these

requirements will reveal that the EEOC should have no

difficulty qualifying for class certification.

1. Membership.

It is generally true that the plaintiff in a class action

must be a member of the class he seeks to represent. See,

e.g., East Texas Motor Freight System, Inc. v. Rodriguez,

431 U.S. 395, 403 (1977), quoting Schlesinger v. Reserv-

ists Committee to Stop the War, 418 U.S. 208, 216 (1974).

The courts have also recognized that an organization or

association established to represent the interests of a class

may satisfy the membership requirement of Rule 23(a).*

See, e.g., Smith v. Board of Education, 365 F.2d 770, 777-

78 (8th Cir. 1966) (Blackmun, J.) ; Undergraduate Stu-

dent Association v. Peltason, 359 F. Supp. 320, 323 (N.D.

Ill. 1973) (three-judge court) ; cf. Civil Service Commis-

sion V. National Association of Letter Carriers, 413 U.S.

548, 551 n.2 (1973). See also Norwalk CORE v. Nor-

walk Redevelopment Agency, 395 F.2d 920, 937-88 (2d

Cir. 1968) ; 3B MOORE’S FEDERAL PRACTICE, { 23.04[3],

at 23-142 to 23-146 (2d ed. 1979). These cases, as Judge

(now Mr. Justice) Blackmun has pointed out, turn on

whether the organizational plaintiff has standing to bring

the action as “a real party in interest.” Smith v. Board

of Education, supra, 365 F.2d at 777; see 7 WRIGHT &

MILLER, FEDERAL PRACTICE AND PROCEDURE § 1761, at 591-

92 (1972). There is no longer any doubt that an organi-

zational plaintiff has standing to sue in a representative

capacity on behalf of its members. See, e.g., Warth v.

Seldin, 422 U.S. 490, 511, 515 (1975); National Motor

Freight Traffic Association v. United States, 372 U.S.

246, 247 (1963) (per curiam).

Although, to be sure, the EEOC is not a voluntary

membership association and has suffered no injury to it-

self, this has not been a barrier to establishing the stand-

ing of a public agency to sue in a representational ca-

pacity on behalf of a class where the agency’s purpose is to

25 As one commentator recently noted:

Rule 23 class actions have, for example, been brought by asso-

ciations, unions, the next friend of a minor, trustees, execu-

tors, and bankruptcy trustees. State attorneys general, with

the requisite standing under local law, have been allowed to

represent rule 23 classes in federal courts in cases in which

the state is not technically a member of the class—for example,

in cases in which the class is the school districts in the state.

Comment, supra note 7, 46 U. Cui. L. REv. at 711-12 (footnotes

omitted) .

represent the interests of that class.** See Hunt v. Wash-

ington State ‘Apple Advertising Commission, 432 U.S.

333, 343-45 (1977). In the context of Section 706 liti-

gation, Congress has defined the EEOC’s mission as

seeking redress for victims of unlawful employment dis-

crimination.“7 The Fifth Circuit was therefore correct in

stating:

To hold that EEOC is not a “member of the class” as

that term is used in Rule 23 would be contrary to

Congress’ purpose. Especially when EEOC seeks to

recover back pay for individuals, it would seem to be

Congress’ clear intent that EEOC stand in the shoes

of those individuals and represent them in a suit the

individuals would otherwise be entitled to bring.

Where individuals can institute Title VII suits under

Rule 23, it would be anomalous in the extreme to

hold that EEOC, an enforcement agency expressly

authorized by Congress to sue, may never do so under

Rule 23 solely because it runs afoul of. the member-

ship requirement.

EEOC v. D.H. Holmes Co., supra, 556 F.2d at 796-97

(footnotes omitted) .?*

2. Adequacy of Representation and T ypicality.

The Court of Appeals in this case was also incorrect,

in our view, in finding a conflict between the representa-

tional duties of a class action plaintiff under Rule 23

26 Governmental entities, as such, are not per se ineligible to

bring class actions. See Hawaii v. Standard Oil Co., 405 U.S. 251,

266 (1972); Illinois v. Bristol-Myers Co., 470 F.2d 1276, 1277-78

(D.C. Cir. 1972).

27 LEGISLATIVE HISTORY at 1589.

28 The Ninth Circuit also concluded that the EEOC satisfied the

membership requirement of Rule 23(a) by virtue of Congress’

decision to grant the EEOC standing to assert the rights of others.

Pet. App. A21.

and the EEOC’s statutory role under Title VII as “a pub-

lic agency ‘charged with the vindication of public policy,

not merely with the enforcement of private rights.’ ”’

Pet. App. A16-A18. The court believed that when Con-

gress authorized the EEOC, as well as private individuals, -

to bring suits under Section 706, Congress had created

a dichotomy of roles in which the government protects

solely the public interest and the individual plaintiff pur-

sues strictly his private interest. The EEOC urged below

and in other courts that this dichotomy precluded it from

adequately representing the interests of a class of private

individuals.

But all suits under Title VII “ ‘involve the vindication

of a major public interest.’” *® Even a private action un-

der Section 706 vindicates that public interest by re-

dressing the private injury to individual victims of dis-

crimination.*®° When Congress amended Section 706 in

1972, it assigned to EEOC the major burden of such liti-

gation in hopes of strengthening Title VII enforcement,

not by creating a new remedy, but by authorizing suits to

be brought by a more effective litigator using the exist-

ing remedy. In other words, Congress preserved the pre-

existing Section 706 remedial mechanism which integrates

both public and private interests, but established dual

enforcement through government and private litigation.

See text at 9-10 supra. See also Comment, supra note

7, 46 U. Cui. L. REv. at 705 n.91. The mechanism re-

mained essentially the same; Congress merely provided

a new trigger—the EEOC.

29 Franks vy. Bowman Transp. Co., 424 U.S. ‘747, 778 n.40 (1976),

quoting Section-By-Section analysis of H.R. 1746, accompanying

the Equal Employment Opportunity Act of 1972—Conference Re-

port, 188 ConG. REc. 7166, 7168 (1972).

30 Thus, in a section-by-section analysis of the 1972 amendments,

Senator Williams, the floor manager of the bill, explained: “[T]he

individual’s rights to redress are paramount under the provisions

of Title VII.” LEGISLATIVE HISTORY at 1772.

ee ee

The Ninth Circuit’s attempt to find a dichotomy of

roles between public and private Section 706 suits also

overlooks the fact that the private litigant redresses more

than his private interests when he sues under Title VII.

As this Court has stated:

In [private actions] . . ., the private litigant not only

redresses his own injury but also vindicates the im-

portant congressional policy against discrirhinatory

employment practices.

Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974).

The role is akin to that of a “private attorney general who

‘takes on the mantel [sic] of the sovereign.’” Bowe v.

Colgate-Palmolive Co., 416 F.2d 711, 715 (7th Cir. 1969),

quoting Jenkins v. United Gas Corp., 400 F.2d 28, 32

(5th Cir. 1968). Thus, whether EEOC or a private liti-

gant sues under Section 706, the nature of the suit is

identical and the interests served are identical *\—the

public policy goals of Title VII are promoted by compen-

sating individuals victimized by discrimination and by

awarding injunctive relief to ensure against repetition of

the same wrongs. |

A number of lower courts have sought to separate pri-

vate and public interests in construing various aspects of

Title VII enforcement.” It may be significant, however,

81 This identity in the nature of the public and private action

and the interests served contrasts with other legislative schemes,

which involve dual public and private remedies, such as the Sher-

man Act, where the nature of the actions and the interests served

are not identical. See United States v. Borden Co., 347 U.S. 514,

518-19 (1954).

32 See, e.g., Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d

841, 846 (8th Cir.), cert. denied, 484 U.S. 920 (1977); EEOC v.

Occidental Life Ins. Co., 585 F.2d 633, 537-40 (9th Cir. 1976), aff’d

on other grounds, 432 U.S. 355 (1977) ; EEOC v. Genéral Electric

Co., 532 F.2d 359, 373 (4th Cir. 1976); EEOC v. EI. duPont de

Nemours & Co., 516 F.2d 1297, 1299-1300 (3d Cir. 1975); EEOC

v. Kimberly-Clark Corp., 511 F.2d 1352, 1859 (6th Cir.), cert. denied,

that in the one case that reached this Court in which the

lower court’s judgment rested on such an argument, two

Justices pointedly rejected the argument and the majority

affirmed the judgment on an entirely different rationale.

Compare Occidental Life Insurance Co. v. EEOC, 4382

U.S. 355, 358-73 (1977), with id. at 381-84 (Rehnquist,

J., dissenting in part). The majority in Occidental Life

correctly pointed to the EEOC’s investigative and concili-

ation functions as indicating that the agency’s mission

goes beyond “conducting litigation on behalf of private

parties.” Id. at 368. But the majority expressed no opin-

ion on the nature of the EEOC’s role as litigator, and the

dissent affirmatively declared that the EEOC’s primary

function as litigator under Section 706 is to seek re-

dress for discrimination complaints on behalf of individ-

uals that could have brought their own suits. Id. at 383.

In UAW Local 283 v. Scofield, 382 U.S. 205, 217-22

(1965), the NLRB took a position similar to that of the

EEOC and the Ninth Circuit in this case. The Board

claimed to be the “custodian of the ‘public interest,’ to

the exclusion of the so-called ‘private interests’ at stake.”

Id. at 218. See Comment, supra note 7, 46 U. CuI. L.

REv. at 705 n.91. Unanimously rejecting the argument,

this Court held that

the statutory pattern of the Labor Act does not

dichotomize “public” as opposed to “private” in-

terests. Rather, the two interblend in the intricate

statutory scheme.

Id. at 220.%* Cf. Garner v. Teamsters Local No. 776, 346

423 U.S. 994 (1975). Contra, EEOC v. D.H. Holmes Co., 556 F.2d

787, 794 (5th Cir. 1977), cert. denied, 436 U.S. 962 (1978); EEOC

v. Continental Oil Co., 548 F.2d 884, 887 (10th Cir. 1977).

33 The issue in Scofield involved the Labor Board’s opposition to

intervention of the charging party in judicial review of an unfair

labor practice decision upholding the charge. Scofield, supra, 382

USS. at 217.

U.S. 485, 492-501 (1953). The EEOC’s claim that its

duty is to further public policy goals and not to promote

the rights of individual aggrieved parties is even weaker

than that of the Labor Board, for unlike the Board which

adjudicates unfair labor practice charges in an adminis-

trative proceeding, the EEOC was expressly denied such

powers in the 1972 amendments and authorized, instead,

to sue as an advocate of private litigants. See Occidental

Life Insurance Co. v. EEOC, supra, 432 U.S. at 361-64.

There is no clash, we submit, between Rule 23 and the

public goals of Title VII.“ Rule 23 harmonizes well with

the congressional purposes of Section 706.*° In essence,

Congress decided to assign the EEOC the task of repre-

84 The Ninth Circuit’s perception of a dichotomy of roles be-

tween the EEOC and private claimants led it to conclude that the

EEOC

does not satisfy the requirement of Rule 23 (a)(3) that the

“claims or defenses of the representative parties” be “typical

of the claims or defenses of the class.”

Pet. App. A1l1-A12. The same reasoning supported the court’s re-

jection of the Holmes conclusion that EEOC must comply with

Rule 23 because, when it sues, it stands in place of a private liti-

gant who, had he sued on his own, would be subject to the rule.

Pet. App. A17-A18. Since the court’s premise is in error, its con-

clusion does not follow. Indeed, if the EEOC is to discharge its

statutory mission of asserting the claims of aggrieved individuals,

its claims not only will be typical of the claims of those individuals,

they will be identical. See Comment, supra note 7, 46 U. Cut. L.

REv. at 716 n.144; Bumpass, supra note 7, 29 CASE W. Res. L. REV.

at 380-82; Harris v. Anaconda Aluminum Co., 17 FEP Cas. 181

(N.D. Ga. 1978).

%5 As noted below, see text at 31-32 infra, by recognizing that

Rule 23 applies to all Section 706 class actions and not merely to

those initiated by private individuals, the ability of federal district

judges to protect the interests of class members and thereby fur-

ther the public policy goals of Title VII will be enhanced by certify-

ing these actions under the rule. See Fep. R. Civ. P. 23(e); Com-

ment, supra note 7, 46 U. CuI. L. REv. at 730-34; cf. Hutchings v.

United States Industries, Inc., 428 F.2d 308, 310 (5th Cir. 1970).

senting private interests in order to further the public

interest. EEOC’s view that it is not an adequate repre-

sentative of private interests would, if accepted by the

courts, defeat the legislative purpose.

3. Numerosity.

Finally, Rule 23’s numerosity requirement—the only

other precondition for class certification that has given

concern to a lower court—will have no impact on EEOC’s

ability to discharge its statutory mission. In EEOC v.

Whirlpool Corp., 80 F.R.D. 10, 19 (N.D. Ind. 1978), the

court believed that the numerosity requirement might pre-

clude the EEOC from seeking relief for small classes of

employees. This concern, we submit, is unfounded.

Classes consisting of relatively few members have been

certified.** Existing lower court precedent accordingly

should cover the vast majority of cases which the EEOC

may file. But even in the isolated case of a small class

not covered by existing precedent, no aggrieved party will

be denied the opportunity for judicial redress of his griev-

ances. The determination of when a class is too numerous

to make joinder impracticable is not based solely on num-

bers, but may also be determined by the nature of the

action and the underlying congressional policy of the regu-

latory scheme.** Here, since Congress has determined

that the litigation burden should fall primarily on the

EEOC as a representative plaintiff and that private re-

medial efforts should be the exception,®* we think Con-

36 See Bumpass, supra note 7, 29 CASE W. RES. L. REV. at 378-79

and cases cited at 379 nn.166 & 167.

87 See generally 7 WRIGHT & MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1762, at 600-03 (1972).

38In a_ section-by-section analysis of the 1972 amendments,

Senator Williams, the floor manager of the bill, explained:

[Footnote continued on page 24]

Ment pet re —

gress has made the legislative judgment that joinder, if not

impracticable in a technical sense, certainly is undesirable

from a policy standpoint. So long as the EEOC has reason

to believe that the Act was violated and identifies on whose

behalf it is suing, no further showing of numerosity would

be needed for certification.

II. EEOC COMPLIANCE WITH RULE 23 WILL PRO-

TECT THE INTERESTS OF AGGRIEVED PARTIES

AND DEFENDANTS WITHOUT UNDULY BUR-

DENING EEOC’S ENFORCEMENT ACTIVITY

The court below expressed concern that application of

the rule would be “time consuming and costly” and

“would serve no useful purpose.” Pet. App. A23. This

view has no support either in experience or logic. The

cases in which the district courts have applied Rule 23 to

EEOC Section 706 suits demonstrate no time-consuming,

costly, or other impediments to certifying the agency as a

class representative.*® Since the EEOC, before filing suit,

38 [ Continued ]

In providing this remedy, it is intended that recourse to this

form of remedy will be the exception and not the rule, and

that the vast majority of complaints will be handled through

the offices of the EEOC.

LEGISLATIVE HISTORY at 1772.

39 See, e.g., EEOC v. Datapoint Corp., supra, 570 F.2d at 1268;

Harris v. Anaconda Aluminum Co., 17 FEP Cas. 181, 182-85 (N.D.

Ga. 1978); EEOC v. Delaware Trust Co., Civ. A. No. 75-157 (D.

Del. Apr. 24, 1979) (order certifying EEOC as class representa-

tive). Two cases in which certification was denied over the EEOC’s

objection represent unusual circumstances unlikely to influence

future cases. In EEOC v. Spector Freight Sys., Inc., 15 EPD

(CCH) § 7967 (N.D. Miss. 1977), the court declined to certify the

EEOC as class representative after trial because there had been

no showing that there were any aggrieved parties other than two

individuals who were also named plaintiffs in the suit. Jd. at 6811.

EEOC v. Westinghouse Electric Corp., 81 F.R.D. 528 (M.D.N.C.

1979), turns on the court’s conclusion that the EEOC made an in-

sufficient showing that an across-the-board class of discrimination

must conduct an investigation of the charge and find reason

to believe that Title VII has been violated, it should have

no difficulty making the showing required for class certi-

fication, particularly in light of the firm congressional

policy favoring EEOC class suits as the primary vehicle

for redressing unlawful employment discrimination.“

Furthermore, far from serving “no useful purpose,”

one commentator has recently noted that “[r]ule 23 cer-

tification plays a central protective role in representative

actions” in that it “provides a framework designed to

ensure procedural fairness to both class members .. .

and defendants.” * It is both a necessary and an entirely

reasonable measure for the orderly processing of Section

706 litigation.

A. EEOC Compliance With Rule 23 Will Protect De-

fendants’ Interests By Promoting Congress’ Aim In

Achieving Finality Of Litigation And Avoiding Un-

necessary Duplication Of Proceedings

Class certification is required to assure that once the

issues raised by the EEOC have been adjudicated, they

will not be litigated again in suits by individual em-

ployees. Absent certification, aggrieved class members

(other than the charging party) would not be bound by an

EEOC action.*? They would be free to await the outcome

victims existed. The court pointed out that the EEOC did not even

contest the defendant’s principal evidence that refuted an inference

of discrimination in hiring. Jd. at 529-31.

40 See note 47 infra.

41 Comment, supra note 7, 46 U. Cui. L. REv.. at 717-18.

42 See, e.g., United States v. Allegheny-Ludlum Indus., Inc., 517

F.2d 826, 845 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976) ;

Rodriguez v. East Tex. Motor Freight, 505 F.2d 40, 65 (5th Cir.

1974), vacated on other grounds, 431 U.S. 395 (1977) ; Williamson

v. Bethlehem Steel Corp., 468 F.2d 1201, 1203-04 (2d Cir. 1972),

cert. denied, 411 U.S. 931 (1973).

of the suit and eventually to initiate identical Section

706 litigation, but seeking greater relief than was

awarded to the EEOC.* This would leave defendants open

to “repeated lawsuits on the same essential subject mat-

ter,” Advisory Comm. Note, 39 F.R.D. 69, 91 (1966),

possibly leading to inconsistent adjudications.* The

effect of permitting multiple litigation of the same dis-

crimination charge would be to reward those who sat back

with a second “bite of the apple” while penalizing the in-

dividual whose charge led to the EEOC action.

In contrast, application of Rule 23 to EEOC Section

706 class litigation generally will bind members of the

43 See Zimmer & Sullivan, Consent Decree Settlements by Ad-

ministrative Agencies in Antitrust and Employment Discrimination: -

Optimizing Public and Private Interests, 1976 DUKE L.J. 163, 207

n.136 (1976) :

[A]n EEOC acceptance of the settlement in its pattern or

practice suit against the steel industry, if it is generally per-

ceived to be inadequate, may trigger a number of private ac-

tions against different companies, plants, departments, or lines

of progression. Although the Commission may have saved it-

self extensive resources, the consequences could be inefficient in

terms of both private plaintiffs and the courts if a multiplicity

of suits in different districts follows. There is good reason to

believe that at least substantial dissatisfaction exists, although

the extent to which it will be reflected in a multiplicity of

private actions is unclear.

AT&T subsidiaries which were parties to an AT&T settlement,

EEOC v. AT&T, Civ. No. 78-149 (E.D. Pa., filed Jan. 18, 1973),

have nonetheless been subjected to subsequent lawsuits brought

by individuals. See, e.g., Walker v. Southwestern Bell Tel. Co., 18

FEP Cas. 1784 (N.D. Tex. 1978); Garnett v. Mountain States Tel.

& Tel. Co., 18 FEP Cas. 1773 (D. Colo. 1977) ; Peals v. Southwestern

Bell Tel. Co., 18 FEP Cas. 1781 (D. Kan. 1977) ; Butera v. Mountain

States Tel. & Tel. Co., 18 FEP Cas. 1779 (D. Colo. 1977) ; LaCombe

— States Tel. & Tel. Co., 18 FEP Cas. 1774 (D. Colo.

“4 The Holmes, Datapoint, and Delaware Trust courts noted that

Rule 23 was needed to protect the defendant from multiple lawsuits

on the same claims. EEOC v. D. H. Holmes Co., supra, 556 F.2d at

795; EEOC v. Datapoint Corp., 570 F.2d 1264, 1268 (5th Cir.

ret EEOC v. Delaware Trust Co., 81 F.R.D. 448, 452-58 (D. Del.

aggrieved class to the judgment in the EEOC suit,* thus

resolving the claims of class member employees in one

proceeding, without subjecting defendants—and courts—

to the potential of future time-consuming, expensive liti-

gation in numerous individual actions. Cf. Bowe Vv.

Colgate-Palmolive Co., 416 F.2d 711, 715 (7th Cir.

1969). Rule 23 would thus perform the functions for

which it was designed, including eliminating the possi-

bility of inconsistent adjudications on the same facts and

avoiding a “multiplicity of activity.” American Pipe &

Construction Co. v. Utah, 414 U.S. 588, 550-51 (1974).

This result is consistent with Congress’ goal, set forth

in the 1972 amendments, of avoiding duplicative litigation

of similar factual and legal issues and with the public

policies embodied in Rule 23.*°

The congressional decision to permit individuals as

well as the EEOC to bring Section 706 actions was

plainly not intended to permit multiple litigation of the

same claims. Congress sought only to ensure that the

courts would be available to adjudicate an individual’s

discrimination charge when the EEOC failed to initiate

the litigation.” See, e.g., Alexander v. Gardner-Denver

45 Fep. R. Civ. P. 238(c)(3). See EEOC v. Datapoint Corp.,

supra, 570 F.2d at 1268. A carefully drawn Rule 23(c)(3) judgment

will bind all class members provided their interests have been ade-

quately represented and they have been accorded due process in the

conduct of the litigation. See Hansberry v. Lee, 311 U.S. 82, 41-43

(1940); Advisory Comm. Note, 39 F.R.D. 69, 106 (1966); 7A

WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1789, at

175-84 (1972).

46 The Federal Rules of Civil Procedure were amended in 1966

to prevent precisely the type of one-way class suits that the EEOC

seeks to bring. See Advisory Comm. Note, 39 F.R.D. 69, 105-06

(1966).

47In a section-by-section analysis of the 1972 amendments,

Senator Williams, the floor manager of the bill, explained:

In providing this remedy, it is intended that recourse to this

form of remedy will be the exception and not the rule, and that

the vast majority of complaints will be handled through the

EEE ee ee ee Le ke eS

Co., 415 U.S. 36, 44-45 (1974) ; McDonnell Douglas Corp.

Vv. Green, 411 U.S. 792, 798-99 (1973). Thus, Congress

strictly limited the circumstances under which private

parties are free to sue to the following: (1) when the

EEOC has dismissed a charge, or (2) when no court ac-

tion has been commenced by the FEOC and no concilia-

tion agreement satisfactory to the complainant has been

obtained within 180 days of the filing of the charge with

the EEOC or within 60 days of the expiration of a re-

ferral of the charge to an appropriate state agency,

whichever occurs later. Section 706(f) (1), 42 U.S.C.

§ 2000e-5 (f) (1).

Once a private suit has been filed, most lower courts

have held that the EEOC may not file a duplicate action

but may proceed only by way of permissive intervention

in the pending action, unless its allegations of discrimi-

nation are broader than those of the charging party. See,

e.g., McClain v. Wagner Electric Corp., 550 F.2d 1115,

1119 & n.3 (8th Cir. 1977); EEOC v. Kimberly-Clark

Corp., 511 F.2d 1352, 1362-63 (6th Cir.), cert. denied,

423 U.S. 994 (1975) ; EEOC v. Huttig Sash & Door Co.,

511 F.2d 453, 455 (5th Cir. 1975); cf. EEOC v. Con-

tinental Oil Co., 548 F.2d 884, 888-90 (10th Cir. 1977).

Moreover, a final adjudication of a private action bars

offices of the EEOC. However, as the individual’s rights to

redress are paramount under the provisions of Title VII, it is

necessary that all avenues of relief be left open for quick

and effective relief.

In providing for the individual right to sue in the event that

action by the Commission is unsatisfactory or unresponsive,

it is not intended that duplication of proceedings should be

allowed. Therefore, in any proceeding where the General Coun-

sel or the Attorney General, as the case may be, is proceeding

with due diligence within the time limits specified in this sub-

section, the person aggrieved would be precluded from insti-

tuting an individual action until such time as one of the spe-

cific conditions of this subsection are not met.

LEGISLATIVE History at 1772; See EEOC v. Missouri Pac. R.R.,

493 F.2d 71, 73-75 (8th Cir. 1974). ,

relitigation of the same charge in a subsequent suit in-

itiated by the EEOC (EEOC v. Huttig Sash & Door Co.,

supra, 511 F.2d at 456), and if the EEOC commences an

action under Section 706, the charging party is barred

from commencing his own suit and is limited to inter-

vention in the government action. See McClain v. Wagner

Electric Corp., supra, 550 F.2d at 1119; EEOC v. West-—

ern Electric Corp., 382 F. Supp. 787, 793 (D. Md. 1974).

Thus, nothing in the Act contemplates the availability

of a second forum to private individuals dissatisfied with

the judicial outcome of a discrimination complaint. Con-

gress permitted only one judicial action and that action

was to provide a final adjudication and remedy of a

particular charge of discrimination. No statutory pur-

pose is served by the EEOC’s resistance to a procedure

that could bind class members, subject to the protections

of Rule 23, to the same extent that the charging party

is now bound by the outcome of an EEOC-initiated Sec-

tion 706 suit or class members are now bound when the

named class plaintiff is a private individual. See Steven-

son V. International Paper Co., 516 F.2d 103, 108-11

(5th Cir. 1975) (class action) ; EEOC v. Western Elec-

tric Co., supra, 382 F. Supp. at 793 (individual suit).

Aside from promoting finality and foreclosing duplica-

tive suits, application of Rule 23 is also necessary in order

to alert the defendant to the scope of the action being

brought against it. The defendant in Holmes did not yet

know “against whom and upon what grounds precisely

it must defend” itself a full year and a half after the

commencement of the suit. EEOC v. D. H. Holmes Co.,

supra, 556 F.2d at 796; see EEOC v. Delaware Trust

Co., supra, 81 F.R.D. at 450-51. Understandably, the

EEOC wishes to postpone the necessity of defining the

class it represents as long as possible, but Rule 23 does

not require identifying every potential class member at

the outset of the litigation, and it does not prevent a

redefinition of the class in light of developments during

the litigation. See 7 WRIGHT & MILLER, FEDERAL PRAC-

TICE AND PROCEDURE § 1760, at 580-83 (1972). The

EEOC presumably has a reasonable basis for defining the

class it seeks to represent when it commences litigation,

because the agency has the benefit of its pre-complaint

administrative investigation. There is no justification

therefore, for excusing the EEOC from the obligation

of advising its adversaries, potential class members, and

the trial court of the scope of the class it represents.

B. EEOC Compliance With Rule 23 Will Protect The

Interests Of Aggrieved Individuals By Clarifying

The Scope Of The Suit And By Imposing Court

Supervision On The Action

EEOC’s insistence on filing class actions without Rule

23 certification also prejudices the interests of aggrieved

individuals. In particular, the uncertainty generated by

EEOC’s assertion of the right to maintain a flexible class

definition throughout litigation under Section 706 ** may

cause some employees to refrain from filing charges or

decline to proceed with a lawsuit after receipt of a right

to sue letter in the mistaken belief that EEOC is rep-

resenting their interests. This may result in their claims

being barred by time. Section 706(e), (f), 42 U.S.C.

§ 2000e-5(e), (f).

If non-charging class members choose to file individual

charges followed by their own Section 706 lawsuits, they

may find that the court will not certify their suit as a

class action during “° or after an EEOC suit encompassing

the same class,” or will refuse to award any relief that

48 See text at p. 29 supra.

49 See, e.g., Franklin v. General Electric Co., 15 FEP Cas. 1085

1085-86 (W.D. Va. 1975) ; Stuart v. Hewlett-Packard Co.. 66 FRD.

73, 75-77 (E.D. Mich. 1975). eee

5° F'.g., Walker v. Southwestern Bell Tel. Co., 18 FEP Cas

1784, 1786 (N.D. Tex. 1978); Garnett v. Mountain States Tel. &

Tel. Co., 18 FEP Cas. 1778, 1774 (1. Colo. 1978); Peals v. South-

western Bell Tel. Co., 18 FEP Cas. i781, 1782-84 (D. Kan. 1977).

is duplicative of or inconsistent with the result reached

in the EEOC action." The effect will be to saddle absent

class members with Rule 23’s binding effect without any

of the safeguards provided by the rule. See generally

Comment, supra note 7, 46 U. CHI. L. REv. at 719-21.

Application of Rule 28 will eliminate any ambiguity

concerning who is embraced in the class represented by

the EEOC and who remains outside. This will put parties

outside the class on notice that, if their interests are to be

protected, they must take some action beyond relying

on the EEOC. Furthermore, when judgment is entered,

Rule 23(c) (3) requires a precise identification of the

class. If an individual outside the class files a subsequent

private suit, there will no doubt that the individual

plaintiff was not a beneficiary of the relief granted in

the first suit.

If the EEOC is certified as class representative and,

for some reason, a class member is dissatisfied with the

EEOC’s representation of his interests, the individual

may be permitted to intervene in the action. See FED.

R. Civ. P. 23(d)(2). In addition, class certification

brings into play a detailed scheme for judicial control

of the litigation designed in part to protect the interests

of absent class members and generally “to check possible

abuse of the class device.” EEOC v. D. H. Holmes Co.,

supra, 556 F.2d at 795; see Fep. R. Civ. P. 23(d), (e). »

For example, absent class members’ interests are pro-

tected by the Rule 23 requirement that they be furnished

notice of a proposed dismissal or settlement of the action,

and that any dismissal or settlement be subject to prior

court approval. Fep. R. Civ. P. 23(e). Because the full

range of interests is more likely to be brought to the

court’s attention in such a circumstance, the quality of

51 See United States v. City of Jackson, 519 F.2d 1147, 1152 n.10

(5th Cir. 1975) ; Leisner v. New York Tel. Co., 358 F. Supp. 359,

369-70 (S.D.N.Y. 1973).

relief is likely to be higher than in the case of an un-

supervised EEOC settlement outside the Rule 23 context.”

C. Application Of Rule 23 To EEOC Class Actions Will

Promote Title VII Enforcement By Encouraging

Settlement And Improving The Quality Of Relief

Obtained

The certainty of a final and binding judicial decision

emanating from a Section 706 class suit instituted by the

EEOC enhances the possibility of pretrial settlement of

litigation. As the leading treatise on Title VII points

out:

First, defendants would be more likely to settle with

the EEOC if the.settlement could be a consent decree

with a certified class representative, which would

have a res judicata effect on the class. Next, the

desirable feature of finality would attach to a judg-

ment in a litigated case, whether in favor or against

the class represented by the EEOC, which would pre-

clude further litigation on the same issues, which is

not necessarily the case when the EEOC sues without

being certified as a class.

SCHLEI AND GROSSMAN, EMPLOYMENT DISCRIMINATION

LAW 1106-07 (1976). See also Comment, supra note 7, 46

U. Cur. L. REv. at 731.

And finally, applying Rule 23 will promote procedural

consistency in Title VII litigation. The Fifth Circuit

predicted in Holmes that “[i]f EEOC is exempted from

Rule 23, chaos in the management of Title VII class

actions could result. Such matters as notice, exclusion,

intervention, dismissal or compromise, and statute of

limitations treatment would be put in question.” EEOC

v. D.H. Holmes Co., supra, 556 F.2d at 796. The opinion

below suggests that trial courts have the discretion on

the basis of the broad remedial authority granted by Sec-

52 See Comment, supra note 7, 46 U. Cui. L. REv. at 730-31.

tion 706(g), 42 U.S.C. § 2000e-5(g), to apply procedures

comparable to those embodied in Rule 23 without being

bound by the strictures of Rule 23. Pet. App. A23-A24.

This broad reading of Section 706(g) is unsupported by

any authority. But, in any case, the danger in the ad

hoc approach suggested by the Ninth Circuit is that it

provides no standards to guide judges and litigants to

ensure that all interested parties, including absent class

members, will get the protection they need. As the Ninth

Circuit obviously recognized, safeguards such as those in

Rule 23 are needed; and the best way to implement those

safeguards is to apply the familiar and carefully designed

procedures of Rule 23.

D. The Fact That Rule 23 Has Not Been Applied To

Section 707 Pattern Or Practice Suits Does Not

Justify The Same Result In EEOC Section 706

Cases

A principal factor in the Ninth Circuit’s reasoning was

its belief that a uniform practice with respect to the

applicability of Rule 23 should be followed in EEOC cases

under both Sections 706 and 707. Since no court had

applied Rule 23 to Section 707 cases, the court reasoned

that the similarities between the two statutes necessitated

a uniform result. Pet. App. A18-A21. This reasoning

ignores the significant differences between Sections 706

and 707.

Unlike Section 706, only the EEOC may institute Sec-

tion 707 cases, a power it inherited from the Attorney

General in 1972. See text at 10. A private party seeking

redress against discrimination may sue only under Section

706. See, e.g., United States v. Allegheny-Ludlum Indus-

tries, Inc., 517 F.2d 826, 843 (5th Cir. 1975), cert. denied,

425 U.S. 944 (1976) ; EEOC v. United Air Lines, Inc., 515

F.2d 946, 949 (7th Cir. 1975). Furthermore, at least one

court has ruled that aggrieved individuals have no right

even to intervene in a Section 707 action, see Allegheny-

Ludlum Industries, supra, 517 F.2d at 843-46, a right

which Title VII grants in Section 706 actions brought by

the EEOC. See Section 706(f) (1), 42 U.S.C. § 2000e-5

(f) (1).

Thus, Section 707 creates a right of action which be-

longs solely to the EEOC while Section 706 authorizes the

agency to sue on behalf of individuals. It is therefore not

illogical to hold Rule 23 applicable only to Section 706 class

suits, not to Section 707 actions. See EEOC v. D.H.

Holmes Co., supra, 556 F.2d at 792 n.8.

We recognize, however, that a good case still may be

made for applying Rule 23 to Section 707. Two com-

mentators have explicitly urged such a construction. See

Comment, supra note 7, 46 U. CHI. L. REv. at 694-96;

Bumpass, supra note 7, 29 CASE W. REs. L. REv. at 390-

94. Their main argument is that it would be incongruous

to apply different procedural rules since Section 707(e),

42 U.S..C § 2000e-6(e), directs that “[a]ll . . . actions

[under Section 707] ... shall be conducted in accordance

with the procedures set forth” in Section 706. There is

ample indication in the legislative history of the 1972

amendments that Congress thought there was little prac-

tical difference between Section 706 and 707 once the

EEOC was authorized to file actions under both. See Lxrc-

ISLATIVE HISTORY at 1587, 1589. Certainly, the two sec-

tions, if not co-extensive, overlap to a large degree. See

International Brotherhood of Teamsters v. United States,

431 U.S 324, 336 & n.16, 357-62 (1977). Applying Rule

23 uniformly to all class suits under Sections 706 and 707

would have the salutary effect of eliminating the danger

of duplicative suits for the entire range of EEOC enforce-

ment cases.

This issue, however, need not be resolved in this case

since the present suit was filed only under Section 706.

Whatever the merits of applying Rule 23 to a future Sec-

tion 707 case, the case for applying Rule 23 to all Section

706 class actions is compelling.

CONCLUSION

The judgment of the Court of Appeals for the Ninth

Circuit should be reversed.

Of Counsel:

ROBERT E. WILLIAMS

DouGLas S. MCDOWELL

McGuINnEss & WILLIAMS

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

PHP ELMAN

1300 Nineteenth Street, N.W.

Washington, D.C. 20036

January 1980

Respectfully submitted,

AvruM M. GOLDBERG

WILLIAM R. WEISSMAN

DEBORAH A. CALLOWAY

WALD, HARKRADER & ROSS

1300 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 828-1200

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.