# Amicus Brief — General Telephone Co. of Northwest v. EEOC > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0974%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1980 - **Citation:** 446 U.S. 318 ## Text Meioine Court, U, & Ee No. 79-488 GENERAL TELEPHONE COMPANY OF THE NORTHWEST, INC., et al., Petitioners, We 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 iv 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, 28 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 Vv 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) vi 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 Ix 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. — 2 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. 3 412 (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. 4 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). 5 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. 6 in the courts has spawned a similar debate among commentators.” SUMMARY OF ARGUMENT L 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). 7 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). 8 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 9 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. 10 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. 11 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, 12 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. 13 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 14 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. 15 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. 16 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 17 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) . 18 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. 19 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 20 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, 21 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. 22 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). 23 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 — a 24 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 25 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). 26 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. 27 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 28 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). , 29 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 30 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). 31 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). 82 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. 33 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 34 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. 35 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0974%3A09. Public record. Not legal advice.