The Federal Rules of Civil Procedure are celebrating their seventy-fifth anniversary this year. On this diamond anniversary, the celebration is tempered by the uncomfortable truth that for many individuals, the Rules are stacked against them. For workers and others challenging discrimination through the civil litigation system, the Rules appear less like diamonds, and more like diamonds in the rough.
The Federal Rules of Civil Procedure apply to all federal civil actions in the same manner, regardless of the substantive right being pursued. In other words, the Rules are trans-substantive. This principle has been a central tenet of the civil litigation system since the Rules’ enactment in 1938. However, this one-size-fits-all approach to process has been increasingly questioned in a society growing in complexity, size, and specialization. Developments in the modern civil litigation system have led to the devolution of this approach.
Moreover, it is well established that the Rules have a negative disparate impact on certain substantive areas of law and types of cases. The language, interpretation, and application of the Rules reveal an undeniable pattern of substantive-specific impact. After three-quarters of a century, there are enough data points to support this pattern. The blow that employment discrimination and civil rights claims have taken at the hands of procedural law lays bare any pretense that procedural rules operate in a neutral fashion. There are numerous pressure points and a myriad of ways that such claims have disproportionately suffered.
The record is replete with examples of how the procedural rules, and their application and interpretation, have taken a toll on workplace discrimination and civil rights claimants vying for court-entry and merit-based decisions. For example, as an initial matter, it has become harder for claimants to enter the federal court system. The Supreme Court has interpreted Rule 8’s pleading requirement in such a way that it forces complaints to clear a higher bar to survive dismissal. The greater risk of dismissal compromises enforcement, deterrence, and the right to be heard. Depriving access to the civil litigation system undermines fairness, due process, and the well-established preference that cases be decided on the merits rather than on procedural grounds.
Another example of disproportionate hardship for claimants challenging discriminatory practices is the restrictive application and interpretation of Rule 23, the modern class action rule. Far from simply being an intricate joinder device, this aggregation method is designed to empower everyday people to promote and enforce public policy. The Court’s heightened commonality standard—like the pleading one—and stricter back pay threshold threaten court access and a formal resolution on the merits, but on an even grander scale. The denial of class certification—especially in cases involving small value claims and poor claimants—can mean the denial of relief altogether for such litigants and the underenforcement of anti-discrimination statutes more generally.
Even when employees and others are successful at class certification, their success is often short-lived. No sooner have claimants been approved of as a class, than the defendant mounts an interlocutory challenge to certification—one it will likely win.
But plaintiffs permitted to seek class certification are the fortunate ones. Arbitration agreements that compel employees to forgo class actions—along with other procedural protections—are increasingly common in employment contracts and enforced by the courts. Employers not able to litigate their way out of class actions may contract their way out instead. And if class actions are the only realistic way the law will be enforced, employers have effectively contracted for immunity. In sum, the elevated class action hurdles jeopardize law enforcement, employer deterrence, and employee compensation for Title VII cases.