secured through voluntary means, the charging party had little alternative but to seek redress through civil action in federal court. 13/ In some cases where a pattern or practice of discrimination existed, the U.S. Attorney General could institute a civil action against the respondent.14/ Although the Commission had no power to bring civil action against respondents in federal court, it could participate in private civil 15/ 16/ From The actions as amicus curiae, and it did so in a number of cases. As Whereas the EEOC was frequently less than successful in securing voluntary compliance among respondents, it was quite successful in having the positions it argued for as amicus curiae adopted by the courts. a result, there has developed a substantial repository of case law refining and developing the effect and application of the ban on discrimination by race, religion, sex, and national origin. With few excep In its early history the Commission actually appeared more interested in litigation than in conciliation, as it sought to establish legal precedents defining the scope and meaning of Title VII. tions the courts consistently supported the Commission's own interpretation of the Title, and the legal concepts enunciated by the courts have had far reaching impact on the Commission's compliance activities and their 18/ outcome. Procedural Issues The common denominator of court decisions in procedural issues has been to allow no procedural impediment to stand in the way of resolution of cases on their merit. In bringing cases to adjudication on the merits, the majority of procedural steps, one by one, have been written out of the law as prerequisites to suit. Section 706 (d) of the law prior to its amendment provided that a charge of discrimination ". . . shall be filed within ninety days after the alleged unlawful employment practice occurred" except in states and political subdivisions with FEP legislation where the period shall be "two hundred and ten days." As amended, the law imposes a 180-day and The Seventh Circuit Court of Appeals in 300-day limit respectively. Cox v. U.S. Gypsum Company 19/ limited the apparent restriction this time period imposed in certain cases under the "continuing violation" theory. The court concluded that where the act of discrimination is ongoing, as in a layoff resulting from a job seniority system carrying forward the status quo of past discrimination, the charge may be considered timely even if filed after the expiration of the appropriate time limit 20/ following the date of layoff. In Culpepper v. Reynolds the court held under the "tolling doctrine" that the 90-day limit was stayed during the period an employee was seeking redress through a grievance and arbitration procedure. Further protecting the rights of charging parties against procedural obstacles under Title VII has been use of the Civil Rights Act of 1866. 21/ the Seventh Circuit held that Title VII In Waters v. Wisconsin Steel Works is not the exclusive federal remedy for employment discrimination and that an employee who had good reason for not following Title VII procedures In Sanders v. had a cause of action under the Civil Rights Act of 1866. Dobbs House, 22/ that an employee had a cause of action under the Civil Rights Act of 1866 even though his Title VII claim was barred by the statute of limitations. It also appears that a charging party may file suit under Title VII 23/ even though the charge has never been served, investigated, 24/ conciliated. 25/ or In addition, a "no cause" finding does not preclude a 26/ suit in court.- The only jurisdictional prerequisites which seem to remain are that the complainant has filed a timely charge with the EEOC 27/ and has been notified that he may bring suit. Under Section 706 (f) of Title VII as amended, after receiving notification that the Commission has been unable to obtain voluntary compliance, the charging party is given 90 days (formerly 30 days) to file suit. Even this requirement may be waived in special circumstances where the charging party has contacted a court requesting an attorney 28/ within the required time limit. 29/ In Bowe v. Colgate Palmolive Company the Court of Appeals ruled that to keep a defendant in court he must have been named as a respondent in the charge. Where relief sought involves court-directed modification or elimination of collectively bargained employment conditions, the union 30/ may be required to be joined to the action. The rule of law on this issue is not yet settled, however. In their interpretation of union grievance procedures and Title VII rights, the courts have held generally that availability of remedies under grievance and arbitration procedures or under the Railroad Labor Act cannot deprive an employee of the right to proceed under Title VII.31/ An arbitration decision may also be submitted as evidence in a Title VII 32/ case. The courts appear to have sanctioned filing and expansion of charges to cover broad systemic forms of discrimination. 33/ In Sanchez v. Standard Brands- the Fifth Circuit Court of Appeals sustained charges which were amended to cure technical defects and omissions. The Sixth Circuit, moreover, held that a Commissioner's charge need not be specific--it In further rulings, may simply set forth essential factual allegations. 341 a majority of courts have held that private complaints need not be specific but may be stated in general terms. 35/ Of course, in cases brought by the Attorney General under Section 707, the government is bound by Rule 8 of the Federal Rules of Civil Procedures to make "a short and plain Although the boundaries of the Commission's legitimate right to evidence in the investigative stage have not been definitely drawn, the courts 371 have recognized that the Commission's powers are broad. The investigation cannot be limited to records and evidence relating to the charging 38/ party alone. Where the charge is phrased in broad sweeping generalities the court's position has been that expansive evidence sought by the Commission in investigation is relevant. 39/ Investigation reports may be accepted as evidence in court. 40/ The expansion of charges and investigatory powers of the Commission has led to a growing number of class action settlements in conciliation as well as in litigation. But the gain may have had a price: some critics have argued that the amendment and expansion of charges on a postinvestigation basis has contributed to the failure of conciliation by enlarging issues and increasing respondents' cost of settlement. 41/ Moreover, the charging party has more than often suffered some loss through failure of the Commission to obtain redress of his specific grievances. Nevertheless, the courts have generally held a favorable view of class action suits as a comprehensive means of securing compliance with 42/ Title VII. In Hall v. Werthan Bag Company the court sustained the right to expand a private suit to a class action without requiring each member of the class to file a complaint. Furthermore, according relief to a charging party without providing redress to members of the affected 431 class does not make a charge moot.- The case may still proceed to trial. Definition of the class remains an issue. The court ruled in 44/ Johnson v. Georgia Highway Express- that broad class actions extending to employees in plants of the respondent other than that where the alleged grievance occurred can be maintained. This issue of the scope of and 45/ standing to represent a class has not yet been decided, however. In another decision related to definition of the affected class, the Supreme Court denied certiorari in a case in which a job applicant was held to have standing to attack in-plant practices from which he could not yet have suffered personally.46/ In providing prompt redress to charging parties, Section 707 (a) explicitly accords the right of preliminary injunctive relief in cases brought by the Attorney General. The use of this form of relief has also 471 Of special been affirmed in private cases by judicial interpretation. importance, the Fifth Circuit Court of Appeals has explained that "the usual prerequisite of irreparable injury need not be established and the agency to whom the enforcement of the right has been entrusted is not ,48/ required to show irreparable injury before obtaining an injunction. Under this interpretation, all that is required for provision of preliminary injunctive relief is evidence showing a substantial likelihood that the charging party will prevail at a trial on the merits. |