In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of Civil Procedure. Although the decision was widely understood as raising the bar for all types of class actions, it had particular significance for employment discrimination litigation. Observers wondered if it signaled the end of large-scale employment litigation aimed at structural reform of the workplace, or an implicit rejection of more expansive theories of employer liability under Title VII.
While class litigation has continued in the wake of Wal-Mart, the opinion clearly has made it more difficult to obtain certification of private employment discrimination class actions. As a result, the role of the Equal Employment Opportunity Commission (EEOC) in seeking structural reform of the workplace has gained comparative importance. Unlike private litigants, the EEOC need not comply with the requirements of Rule 23 when it brings suit on behalf of a group of aggrieved individuals. Instead, the EEOC possesses express statutory authority to sue in its own name to vindicate the public interest in preventing employment discrimination and to seek relief for a group of employees. The EEOC’s reports have stressed its “unique role and responsibility in combating systemic discrimination” and emphasized the importance of these cases to its mission. The agency has other advantages in pursuing multi-employee cases: its public funding allows it to pursue cases in which monetary damages are low or difficult to prove, and its history, regulatory role, and nationwide reach give it resources unavailable to private counsel. In the wake of Wal-Mart, observers anticipate that the agency will or should play a larger role in bringing systemic cases in the future. And the EEOC has recently recommitted to strengthening its focus on such cases.
Given the obstacles to private class actions created by Wal-Mart and the EEOC’s unique powers to enforce Title VII, the agency’s efforts to seek structural reform of workplaces warrant close study. Yet, the recent literature has largely overlooked the role of the EEOC in pursuing structural reform in the workplace.
Early theories of “structural reform” or “public law litigation”—cases that try “to give meaning to [legal] values in the operation of large-scale organizations”—developed in the years after Title VII was passed, and emphasized dramatic legal struggles to transform recalcitrant institutions. Although many of the examples cited involved suits against public entities such as hospitals, prisons, jails, and schools, a number of scholars concurred that large-scale employment discrimination cases fit the public law litigation model. Scholars like Owen Fiss and Abram Chayes, along with a crowd of other observers, depicted mammoth cases that provide the occasion for heroic (or imperial) judging or advocacy. Of central importance to these cases was the remedial phase, “a long continuous relationship between the judge and the institution.” As Chayes argued, the decree in public law cases typically “provid[ed] for a complex, ongoing regime of performance [that] prolongs and deepens, rather than terminates, the court’s involvement with the dispute.” Thus, the literature described cases that lasted for years, even decades, and cost millions of dollars to litigate, that posed acute challenges to the managerial capacity of courts and offer occasions for power grabs by plaintiffs. Both those who have praised and those who have condemned structural reform litigation have concurred in this general description, which we call the “gladiator theory” of structural reform litigation.