Author:George Rutherglen

The usual rules of preclusion generally apply to actions under Title VII. Thus, federal courts are bound by the decisions of state courts under the ordinary rules of full faith and credit, even if these decisions simply review decisions of state or local administrative agencies.[631] So, too, a conciliation agreement that awards a job to a charging party under Title VII does not bar another individual, displaced from the job, from suing for violation of the collective bargaining agreement.[632]

These general rules are subject to only two qualifications or exceptions. The first exception concerns the requirement of exhaustion of administrative remedies and is not at all problematic. When considering a claim under Title VII, a court is not bound by the decision of an administrative agency-whether state or local-or the EEOC itself.[633] This conclusion is necessary so that the statutory requirement of exhaustion of administrative remedies does not become the effective equivalent of administrative adjudication. According binding effect to the decision of an administrative agency would make its decision final instead of the court's subsequent decision.

The second exception concerns affirmative action and is therefore more complex and more controversial. The Supreme Court initially applied the usual rules of preclusion to affirmative action plans established by consent decrees and subsequently attacked by white employees or unions that represented them.[634] In two cases, the Court held that consent decrees were binding only on the parties who signed them and on other persons in privity with them. In the most controversial of these cases, the Court held that persons who were not a party to the underlying action were under no duty to intervene to object to the consent decree in order to preserve their objections to it.[635]

This decision, to the extent it was not based on constitutional considerations, was superseded by the Civil Rights Act of 1991. The Act contains elaborate provisions making judgments and consent decrees binding on nonparties with actual notice of the proposed order and an opportunity to object to it, as well as on nonparties whose interests were adequately represented by an existing party.[636] This extended preclusive effect, however, is subject to several limitations, the most important being the requirements of due process.[637]

Despite these limitations, the immediate effect of court orders has usually been conceded, and...

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