A recurring criticism of Clarence Thomas's performance as chairman of the Equal Employment Opportunity Commission is that Thomas stressed individual cases to the detriment of class actions during his tenure. For example, the Women's Legal Defense Fund argues that "the number of cases filed on behalf of individual claimants increased under Judge Thomas, but at the expense of class action litigation that can potentially compensate hundreds and even thousands of individual victims per suit."
This claim has no merit. The EEOC, led by Thomas, helped put teeth into remedies for individual victims of discrimination, whether they stood alone or as members of groups of victims. By demanding full relief for bias victims, the EEOC ceased to sell claimants short on monetary and equitable remedies. And it insisted, long before civil rights groups, that discrimination victims be placed in jobs they were wrongly denied, even if that meant bumping beneficiaries of discrimination out of such jobs.
Nor did the EEOC disavow large or class cases in favor of single-victim cases. Whether the victims were women excluded by height requirements at Libbey-Owens-Ford, pregnant women discharged and denied other benefits at AT&T, or older workers denied severance benefits by many companies, EEOC pressed forward to obtain remedies.
As the general counsel of EEOC responsible for recommending cases for prosecution and pressing those cases to conclusion, I never once faced either philosophical or practical opposition from any commissioner, including Thomas, to pursuing large cases. Indeed, Clarence Thomas personally initiated numerous class action commissioner's charges. One, a race discrimination class complaint against Honda, led to a multimillion-dollar settlement benefiting numerous individuals.
What such critics have trouble accepting is that the American workplace has changed in the past two decades in ways that have dramatically altered the nature and size of potential job discrimination suits. A recent Stanford Law Review article by John Donohue and Pete Siegelman proves this point, documenting two major trends in private (non-EEOC) employment discrimination suits. First, class action certification requests declined by nearly 96 percent from a peak of 1,106 in 1975 to 51 in 1989. This nosedive, say the authors, is "part of a larger trend in the use of class actions in all contexts." Second, while class actions were joining the endangered species list, other employment discrimination cases filed in the federal courts skyrocketed. Filings alleging job discrimination grew 2,166 percent from 1970 to 1989, while other federal court filings grew a modest 125 percent.
These litigation trends are worth pondering. A worthwhile starting point is the assumption that institutions subject to legal liabilities attempt to minimize these liabilities, at least to the point that the cost of avoiding liability outpaces the liability itself. When Title II of the Civil Rights Act of 1964 prohibited race discrimination in public accommodations, inns and restaurants quickly complied with the law. The rapid disappearance of enforcement actions under Title II testifies not to the law's impotence but to its power. Noncompliance was highly visible and costly, while compliance was easy and profitable. So the law took effect with little litigation.
Title VII of the same act has proven far less self-executing, becoming a complex field defined by thousands of judicial decisions, hundreds of pages of regulations and scores of treatises. Qualifications to perform jobs are not universally accepted, and subjective hiring, firing, promotion and pay decisions are often unavoidable. Employers, viewing better workers as indispensable to economic success, defend job decisions that range from educational standards for applicants to performance evaluations for incumbents. Virtually all large employers have adopted discrimination avoidance systems and affirmative action programs to avoid major class action liability.
What the Donohue and Siegelman study documents is that the Title VII "action" has shifted from broad work force exclusion of minorities and women to individual-specific claims. When blacks and women were systematically excluded from jobs, hiring class actions successfully forced employers to open their doors. Once demographic diversity within work forces was achieved, individual employment termination claims began to predominate in litigation. While hiring charges outnumbered termination charges by 50 percent in 1966, termination complaints outnumbered hiring charges by more than 6 to 1 in 1985. As women and minorities occupy more and better jobs, they file more discharge claims. Less workplace segregation spawns more individual discrimination claims.
The EEOC under Thomas reflected these trends. EEOC litigation volume grew threefold from the early to the late 1980s. Most of the 523 EEOC suits filed in 1989, like those filed in the private sector, were individual discharge cases. While roughly 20 to 30 percent of the EEOC suits filed during this period were class action cases, most were small compared with the "blockbuster" hiring cases available in earlier years of Title VII enforcement.
To argue that EEOC chairman Thomas should be faulted even if there were fewer large class actions filed in his term ignores these societal changes. Thomas did not lead EEOC during the "bad old days" of the segregated work forces that generated giant hiring class actions. He vigorously fought the battles of the era over which he did preside at EEOC rather than sparring at windmills of the past. This realism bodes well for his future contributions on the Supreme Court.
The writer, a law professor at Emory University, was general counsel at the EEOC under Clarence Thomas. He is serving as a consultant to the Justice Department on the Thomas nomination.