Recent Developments in Equal Employment Opportunity Litigation

Cleveland State University EngagedScholarship@CSU Cleveland State Law Review Law Journals 1973 Recent Developments in Equal Employment Opportunity Litigation Howard R. Besser Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Civil Rights and Discrimination Commons How does access to this work benefit you? Let us know! Recommended Citation Howard R. Besser, Recent Developments in Equal Employment Opportunity Litigation, 22 Clev. St. L. Rev. 72 (1973) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol22/iss1/9 This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact . Recent Developments In Equal Employment Opportunity Litigation Howard R. Besser* HE 1964 CIVIL RIGHTS ACT1, enacted on July 2nd of that year, represented an attempt by the federal government to deal with unlawful discrimination in many fields of endeavor, including housing, employment, public accommodations and facilities, federally assisted and federally funded programs, voting rights, etc. . Title VII of that Act is specifically concerned with equal employment opportunity and creates the Equal Employment Opportunity Commission to carry out the functions of the law. Most of the decisional law under Title VII of the 1964 Civil Rights Act, has concerned issues that might be properly titled "procedural." William Brown, Chairman, of the Equal Employment Opportunity Commission (EEOC) pointed out that it was not surprising in light of the relative youth of the agency that much of the litigation in which EEOC participated during its first five years involved procedural aspects of the law.2 He further stated: Between 1965 and 1970, most defendants in Title VII suits have been willing to bear the expense of litigating procedural issues. These defendants have not been deterred, even though the cases dragged on for years through appellate courts and they bore the risk of paying plaintiff's attornney's fees.3 The federal government through the EEOC and the Justice Department has ultimately prevailed in many, if not most of the procedural issues that have been litigated. For example, in Bowe v.Colgate-Palmolive Company,4 the court of appeals stated that the court's remedial power under Title VII should be read quite broadly and went on to indicate that the clear purpose of the Act was to bring an end to the proscribed discriminatory practices and to make whole in a pecuniary fashion those who have suffered because of such practices. The Bowe court stated that to permit only injunctive relief in the class action therein filed would have frustrated the implementation of the strong congressional purposes expressed in the Act and went on to hold that compensatory action was clearly called *B.A., The Ohio State University; J. D., The Ohio State University College of Law; U.S. District Counsel, U.S. Equal Employment Opportunity Commission; Lecturer, The Cleveland State University College of Law. 1CIVIL RIGHTS AcT OF 1964, 42 U.S.C. §§ 2000-e etseq. (1970). 2 Address by William Brown, Chiarman of the Equal Employment Opportunity Commission, at Northwestern University Law School, Oct. 6, 1971. 3Id. 4416 F.2d 711 (7th Cir. 1969). Published by EngagedScholarship@CSU, 1973 1 19731 RECENT DEVELOPMENTS -EEO LITIGATION for, to those individuals who had suffered from prior discrimination and that a class action could be maintained seeking monetary relief for all of the members of a class, whether or not they had individually filed complaints with the agency.5 The Application and Mis-application of the Doctrine of Election of Remedies The court in the Bowe case also indicated the right of the charging party to pursue both contractual and statutory remedies where statutory remedies provided by Title VII overlapped with those provided by a collective bargaining agreement,6 In this regard, the question of "choice of remedies" or "election of remedies" has often arisen under Title VII. in other words, the question broadly stated is whether or not the invocation of a private grievance procedure underneath a union collective bargaining agreement would either be a bar to a further court action under Title VII or would in some means estop someone from invoking a Title VII action. In the Bowe decision, Circuit Judge Kerner indicated that: The situation facing the Trial Court was one in which there exists concurrent jurisdiction under the statutory scheme and under the grievance and arbitration process for the resolution of claims against an employer and a union. The analogy to labor disputes involving concurrent jurisdiction of the N.L.R.B. and the arbitration process is not merely compelling, we hold it conclusive. 7 Accordingly, Bowe held that it was error not to permit the plaintiffs to utilize dual prosecution both in court and through arbitration as long as the election of remedy was made after an adjudication so as to preclude duplicate relief which would result in either unjust enrichment or a windfall to the plaintiffs.' Bowe was quickly followed by the Fifth Circuit Court of Appeals decision in the case of Hutchings v. U.S. Industries, Inc.,' wherein the court first determined that an individual employee's action in federal court alleging racial discrimination in a denial of promotion was not barred for failure to file a charge of discrimination with the agency within the then-prescribed period of 90 days since the period under the Act for a statute of limitations was tolled when the emt Bowe v. Colgate-Palmolive Co., 416 F. 2d 711, 720 (7th Cir. 1969). 61d. at 714. 71Id. 'Id. at 715. See also, Batiste v. Furnco Construction Co., 5 E. P. D. 8098, (N. D. 111.,Dec. 30, 1972), which adopted the Bowe approach in denying the relief already secured via a state agency and instead awarded only attorney fees which were not authorized by the state law. 14 28 F. 2d 303 (5th Cir. 1970). https://engagedscholarship.csuohio.edu/clevstlrev/vol22/iss1/9 2 CLEVELAND STATE LAW REVIEW [Vol. 22:72 ployee invoked his contractual grievance remedies in an effort to seek private settlement of this complaint, citing an earlier Fifth Circuit opinion in Culpepper v. Reynolds Metals Company.10 The court went on to hold that the unsuccessful resort to the grievance procedure was not to be regarded as a bar to the institution of the Title VII litigation.1 The court indicated that the determinations under a contract grievance-arbitration process involved rights and remedies very separate and distinct from those involved in judicial proceedings under the statute and that any application of the doctrine of election of remedies to suits brought under the Act must be limited to those 12 situations which would result in an unjust enrichment or a windfall. In reversing the district co (...truncated)