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. (1) 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. (2) 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. (3)
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. (4) 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. (5) 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. (6) 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. (7) 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. (8) And the EEOC has recently recommitted to strengthening its focus on such cases. (9) 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" (10)--developed in the years after Title VII was passed, and emphasized dramatic legal struggles to transform recalcitrant institutions. (11) 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. (12) Scholars like Owen Fiss and Abram Chayes, along with a crowd of other observers, (13) depicted mammoth cases that provide the occasion for heroic (or imperial (14)) judging or advocacy. Of central importance to these cases was the remedial phase, "a long continuous relationship between the judge and the institution." (15) As Chayes argued, the decree in public law cases typically "provided] for a complex, ongoing regime of performance [that] prolongs and deepens, rather than terminates, the court's involvement with the dispute." (16) 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.
In subsequent years, theorists of structural reform litigation began to explore more collaborative models of reform. Charles Sabel and William Simon wrote in 2004 that the litigation has moved away from remedial intervention modeled on command-and-control bureaucracy "toward a kind of intervention that can be called 'experimentalist,'" which "emphasizes ongoing stakeholder negotiation, continuously revised performance measures, and transparency." (17) Other scholars have seen a similar approach in the workplace context, describing what they term a "structural approach" to solving problems of discriminatory bias. (18) They point to some high profile cases as embodying this approach--relying on flexible, context-specific remedies to create "processes of accountability" and encourage experimentation and information-sharing. (19) We refer to this vision of civil rights injunctive litigation as the "collaboration theory."
The collaboration theory has in turn come under criticism, as unduly empowering employers and human resources professionals to devise compliance strategies. (20) Because the requirements of the anti-discrimination norm are ambiguous, employers can influence how those norms are operationalized, and their practices in turn shape the meaning of those norms. Law, in other words, is endogenous to its own implementation. (21) Organizational sociologists like Lauren Edelman, Frank Dobbin, and others have found that employers frequently respond to the requirements of anti-discrimination laws in ways that signal compliance with the law while accommodating the organization's managerial interests. (22) Managers have come to embrace the advice of personnel professionals who have long advocated a set of standardized bureaucratic responses, such as creating anti-discrimination policies, conducting EEO trainings, and establishing grievance procedures. These responses diffused through professional networks and were eventually validated by court decisions endorsing them as liability-defeating compliance.
The literature just summarized describing structural reform of the workplace suffers from several limitations. First, to the extent that it describes systemic litigation, it has relied on a handful of mega cases that are not necessarily representative. (23) In the 1970s, a prime example was the litigation against AT&T. (24) More recently, analysis has featured suits against Shoney's, (25) Home Depot, (26) Wal-Mart, (27) Coca-Cola, (28) and Texaco. (29) Observers disagree on how to interpret these high-profile cases, (30) but perhaps the greater problem lies in taking them as representative of broader trends. These cases constitute just a sliver of a larger docket of cases aimed at providing relief to a group or class of employees (31)--cases that have gone largely unexamined. Second, the almost exclusive focus of the recent literature has been on cases brought by private counsel, with little or no attention paid to the enforcement efforts of the EEOC or the role that might be played by the agency in seeking structural reforms. (32) Finally, the sociological literature, while attentive to firms' responses to the general legal environment, has largely neglected the role of the EEOC in that process in recent years.
In this Article, we begin to fill these gaps by systematically analyzing the EEOC's litigation activities and the injunctive relief it obtained in cases brought over a ten-year period, from fiscal years 1997 to 2006. (33) Our focus is on the most "class-like" of the EEOC's cases--those most likely aiming at structural reform of the workplace--which we examine in light of the existing literature. We find that neither the early description of public law litigation, the gladiator theory, nor more recent, experimentalist accounts of institutional reform, the collaboration theory, depicts the reality of the EEOC's practices in systemic cases. Unlike the depiction of structural reform litigation in the gladiator theory, the EEOC's litigation is fairly modest; the cases are not bet-the-company battles and the awards are for thousands or occasionally millions of dollars, but not tens or hundreds of millions. The remedial phases last several years, not decades, and the dockets show few signs of post-decretal struggle. The cases are, it seems, only occasionally highly contentious; few epic battles appear. Most often no heated contestation of anti-discrimination norms takes place; the cases nearly always end with settlements rather than litigated judgments, and most of those settlements are negotiated without significant judicial intervention. Nor do the decrees require wholesale change to company practices, but rather more modest changes--in particular, the rationalization of hiring, promotion, and complaint investigation processes. In short, these are ordinary, moderate-size litigations, not dramatic struggles.
At the same time, there is little sign of the type of flexible, contextualized, and decentralized problem-solving processes that the collaboration theorists envision. The EEOC's decrees are not obviously individualized or contextual; most of their terms recur across cases. Moreover, only rarely do the decrees appear to require actions that are significantly integrated with an employer's core operations. It is, of course, possible that the terms of these consent decrees do not capture the collaborative nature of the problem solving they frame. By definition, a collaborative approach to structural reform will not entail clearly articulated rules or goals. Rather, one might look for evidence that a decree sets up a process that encourages and facilitates creative, accountable...