Good “outside the box” scholarship, even if not fully persuasive, can provide useful insights for those of us still stuck inside our boxes. And that’s a good description of Ryan H. Nelson’s An Employment Discrimination Class Action By Any Other Name. It offers a creative and engaging solution to the problem of mandatory, pre-employment arbitration agreements, even if I would not wager much that judges would approve it.
Any Other Name begins well inside the box with a dead-on, refreshingly-candid look at how the Supreme Court caused the decline of the employment discrimination class action. Although he names other culprits (including that Court’s pleading and class action decisions), Ryan mostly blames how the Supreme Court has read the Federal Arbitration Act (FAA) to eradicate class relief in any forum by validating express waivers of the right to proceed collectively either in court or before an arbitrator. He also traces the failure of direct doctrinal attacks on the FAA’s applicability to employment or the validity of particular arbitration agreements. In contrast, “relatively successful strategies” included public enforcement and qui tam actions. These approaches “accepted the validity and ubiquity of individual arbitration agreements but nevertheless found a way around them by litigating through nonworker real parties in interest” that never executed an agreement to arbitrate. (P. 1427.) That struck me as an important insight—not obvious but sensible once Ryan pointed it out!
As for possible solutions, these are limited to only two given current caselaw: “representative private enforcement actions,” such as California’s Private Attorney General Act (PAGA), and public enforcement actions. The latter he largely discounts since that route requires more in the way of new enforcement resources than the political process is likely to provide.
The real value of Any Other Name, as its title hints, is its way around the FAA’s barrier to Title VII class actions. Like an army bypassing well-fortified positions to land on undefended beaches, Ryan suggests that current FAA jurisprudence can continue to deprive individual employees of the right to sue collectively on their own behalf while still vindicating at least some of the goals of the antidiscrimination project. To do this, he would recognize the right of certain public interest organizations to sue in their own names as real parties in interest harmed by discrimination against actual employees. While such organizations could sue only for equitable remedies, this mechanism would otherwise “approximate” a class action while leaving untouched arbitration agreements executed by the actual employees themselves. (P. 1445.)
Bold ideas often lack the details necessary for actual implementation. Not so Any Other Name, which thoroughly argues how lawyers can use Title VII’s text and structure to justify a shift away from the employee as the only real party in interest to certain kinds of advocacy organizations. I leave explication of this to the article itself but note the textual analysis begins by stressing that, while section 703(a) of Title VII bar employers from discriminating against any “individual,” such as employees and job applicants, section 706(f)(1) of Title VII authorizes a civil action by any “person claiming to be aggrieved . . . by the alleged unlawful employment practice.” Congress defined the term “person” in section 701(a) to include not only individuals but also entities like associations, corporations, and unincorporated organizations. Accordingly, even if such an entity “do[es] not purport to represent employees or job applicants,” it can still bring a civil action as a “person. (P. 1454.)
It could do so, however, only when the entity’s aims map onto Title VII and thus the entity is claiming to be “aggrieved” by some unlawful employment practice against employees or job applicants. In turn, the term “aggrieved” in Title VII’s section 706(f)(1) incorporates a zone-of-interests test that enables suit by “any plaintiff with an interest arguably sought to be protected by the statutes.” (Pp. 1464-65.)1 Thus, only certain organizations might bring such Title VII actions because Supreme Court standing doctrine requires an organization to satisfy a “zone of interests” test. Organizations, say, whose goals include giving voice to women who suffer discrimination or lobbying to prevent future discrimination could arguably further one of the interests that Title VII sought to protect: By facilitating women sharing their experiences with discrimination, such an organization may reduce discrimination against them. Similarly, an organization that lobbies to prevent discrimination also arguably may sue as an aggrieved person. In contrast, an entity that seeks to provide direct mentorship services to women may have an economic interest in less sex discrimination by employers but not arguably an interest that Congress wanted Title VII to protect.
In so arguing, Any Other Name also grapples with contrary arguments based on text, structure, legislative history, congressional inaction, and court opinions. Still, there’s not much doubt where Ryan believes the debate should come out despite the absence of robust precedents so holding.
Ryan is forthright in recognizing his proposal’s limits. First, it requires advocacy organizations whose purposes align with the commands of Title VII. And to counter the Supreme Court’s latest decision allowing the FAA to trump judicial enforcement, that requires state legislation allowing the prosecution of representative claims in court even while individual claims must be submitted to arbitration.2 Second, since such organizations could obtain only injunctive relief, even the optimal result is inferior to the class action device were it readily available. Third, “because this strategy sits nonworkers in the driver’s seat, it may secure a remedy that workers disfavor or even dislike, which undercuts its potential efficacy as a tool for closing the justice gap for workers.” (P. 1476.)
Despite these limits, Ryan has put forward a constructive suggestion to partially repair the damage wrought by the FAA decisions, and it will be interesting to see who tries to put his ideas into practice, and how well they succeed. Maybe a (small) wager after all.
- Thompson v. North American Stainless LP, 562 U.S. 170, 178 (2011) (cleaned up, emphasis added).
- Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 660-661 (2022). California recently amended its PAGA statute, but the new statute appears not to address the Viking River Cruises problem.
