'Not Merely There to Help the Men': Equal Pay Laws, Collective Rights, and the Making of the Modern Class Action.

• Author: Engstrom, David Freeman

Table of Contents Introduction I. St. John v. General Motors and Midcentury Litigation. A. Pay Equity Circa 1938 B. The St. John Trial (I): Legal Limbo and the Perils of Litigation 1. Between Lochner and the New Deal 2. Lochnenan hangovers and the new civil procedure 3. The challenge of finding plaintiffs' counsel. C. The St. John Trial (II): Pay Equity's Complexities and Judicial Competence 1. The puzzle of "similarly employed" and "actual" versus "legal" capacity 2. The puzzle of multiple causation and calculating damages. D. Denouement: Decision and Appeal II. From Litigation to Legislation: The Drive to Enact Pay Equity Laws in St. John's Wake A. Postwar Politics and a Legislative Deluge B. Pay Equity and the Dilemmas of Regulatory Design 1. Defining comparable work 2. Choosing agencies or courts C. The Union Connection: Control, Collective Bargaining Agreements, and Collateral Attacks 1. Labor's conflicted position on pay equity 2. The design of pay equity laws, collective bargaining, and labor's control imperative 3. Gauging labor's imprint III. Legacies: St. John, Gender Equality, and Collective Rights in U.S. Law A. St. John and the Struggle for Gender Equality B. St. John and the Class Action's Emergence C. St. John and the Modern Supreme Court Appendix A Introduction

Florence St. John spoke proudly of her "ten-year pin" recognizing a decade of service to General Motors (GM) at the vast Olds Motor Works in Lansing, Michigan. (1) Of course, she had some gripes. The work was hard: St. John assembled harmonic balancers, which Carl Dobbins, a foreman in the department where St. John reported each day, considered "one of the heavier operations." (2) The women's lunchroom was in "a very unsanitary condition" because its broken windows allowed birds to come in and roost on the tables. (3) But what really upset St. John was the pay situation. Though she toiled on the assembly line alongside men, she earned as much as fifteen or twenty cents an hour less--a substantial hit when the hourly wage of line-level production workers, male or female, was less than a dollar. (4) Adding insult to injury, St. John's male coworkers "kidded" her that they "got a bigger check" even as she "broke the men in"--that is, trained newly arrived male employees--on how to assemble balancers. (5) The final straw came in her tenth year at the plant, when St. John was unceremoniously shunted into a newly created "Women's Assembling Division" and then, a few months later, laid off entirely despite her seniority over men in her former department who kept their jobs. (6) Deprived of a paycheck on which she had long depended, St. John did what a modern observer would not find at all surprising: She found a lawyer willing to take her case. Meeting in living rooms around Lansing, she convinced twenty-eight other women who had worked at the Olds Motor Works to join her. (7) And then she sued.

In retrospect, however, St. John's lawsuit was not merely surprising; it was extraordinary. For starters, the year was 1938. (8) When St. John filed suit, General Motors boasted over 260,000 employees and more than $1 billion in annual sales, easily placing it among the nation's, and the world's, largest and most powerful companies. (9) The lawsuit's timing also meant that St. John could not assert claims under a statute like Title VII of the Civil Rights Act of 1964 (10) or even the many state-level job discrimination laws that came before it, beginning in 1945 in New York and New Jersey. (11) Nor was the lawsuit a damages class action. Those, too, did not yet exist in anything like their present form. Instead, St. John asked the twenty-eight women to assign their claims to her and then brought a common law damages action hitched to section 556 of the Michigan Penal Code--an unusual law, passed by the Michigan legislature near the end of the Progressive Era in 1919, that made it a criminal misdemeanor to "discriminate in any way in the payment of wages as between sexes." (12) Most striking of all, St. John's lawsuit proved uniquely successful: She ultimately won a judgment of $55,690, or some three-quarters of a million dollars in present-day value. (13) This almost certainly made it the first significant damages payout in a job discrimination case in the history of U.S. law. It was also likely the single largest such payout until at least the 1970s, when class action lawsuits under Title VII finally got off the ground. Indeed, no similarly successful lawsuits followed, whether in Michigan or elsewhere, in the years immediately after St. John's stunning victory.

Still, St. John's lawsuit is more than a historical curiosity, for it sits at the center of a pair of related puzzles about the postwar evolution of litigation's place in the U.S. regulatory state. Most immediately: Why did states enacting the nation's first job discrimination laws in the years following St. John's successful lawsuit consistently snub private litigation as a regulatory option and instead vest primary enforcement authority in administrative agencies that many worried would be weak and ineffectual? The battle over pay equity that unfolded in the wake of St. John's lawsuit provides an especially pointed example because, as we will see, state legislatures and Congress rejected dozens of bills that--by explicitly providing for class action authority, damages multipliers, and attorneys' fees for prevailing plaintiffs--could have yielded robust private enforcement efforts not unlike present-day employment law. (14) The second and related puzzle sweeps more broadly: Why, in a nation thought pervasively committed to "adversarial legalism," (15) did aggregated litigation--and, in particular, the class action lawsuit--not emerge as a significant regulatory tool until the 1970s, some three decades after St. John's much-publicized win?

The standard answer to these questions tends to take one of two forms. The first points to New Deal religion and the powerful faith in expert administration that prevailed until at least the 1960s, when concerns about administrative inefficiency and regulatory "capture" eroded bureaucracy's reputation. (16) Until then, most new regulatory authority was vested in agencies, not courts. (17) The other standard answer is that the class action could not emerge until growing docket pressures and the desegregation cases that flowed into federal courts at around the same time moved the Advisory Committee on Civil Rules (Advisory Committee) to replace the original 1938 version of Rule 23 of the Federal Rules of Civil Procedure with the 1966 version. (18) Only once the new Rule 23 unleashed class actions in something like their modern form could they attract the interest of a plaintiffs' bar that was essential to their robust implementation (19) or could courts begin the process of legal acculturation around due process norms that the class action's rise required. (20)

This Article argues that the stunning success of St. John's lawsuit, and the legislative struggles over pay equity laws that followed in its wake, offers a critical but largely neglected laboratory for testing--and challenging--this standard account. On one hand, some of what we learn from excavating St. John's case and the legislative campaigns that followed echoes the standard explanations. Pay equity, perhaps even more so than the racial integration of U.S. industry, was technically complicated stuff, particularly as a second Taylorist revolution yielded ever more complex job classification systems for setting wages. (21) Expert agencies, not generalist judges, seemed to many the better place to vest primary decisionmaking authority. (22) Similarly, the roller-coaster six-week trial in St. John's case made clear to all involved that litigation was not without its challenges. Indeed, the legislative campaigns to enact pay equity laws, like the broader drive for fair employment in which they were embedded, kicked off at a liminal moment in the history of U.S. law. As we will see, the rise of the New Deal order from the Lochner era's ruins, (23) and related developments like the new federal and state rules of civil procedure that emerged at the same time, fostered pervasive legal uncertainty and armed defendants like GM with an array of potent defenses that made litigation an especially risky endeavor. (24)

But St. John's lawsuit and the legislative struggles over pay equity that followed also offer overwhelming evidence that an entirely different factor powerfully shaped the new pay equity laws and, with it, the evolution of the modern class action. Indeed, more so than any other factor, it was organized labor that dashed the hopes of many within the fledgling women's movement to build an antidiscrimination regime around class action lawsuits. Instead, labor used its political might to push the new pay equity laws into what many saw as an anemic administrative system of regulation. (25) Labor did so because it saw in the design of the new pay equity laws a fundamental, and even existential, choice: Would the new regime serve as an administrative adjunct to the New Deal system of labor-management relations built around collective bargaining as the best way to distribute benefits and burdens in the industrial order? Or would it instead provide a judicial end run around, and even a kind of collateral attack upon, that system? Pay equity, in short, was a battle over how best to conceptualize collective rights in the emerging New Deal order. And the class action lost.

Recovering this history yields a number of insights about the ongoing struggle to achieve gender equality in the workplace and about mass litigation's place in the evolution of the postwar U.S. regulatory state. As an initial matter, the St. John episode suggests that the midcentury struggle over what form the new pay equity laws would take was a legal and political tragedy of the first order. It is not right to say that unions...