In a few years, four out of every five nonunion workers in America will have been forced by their employers to sign an individual arbitration agreement as a condition of employment. This new reality, coupled with the U.S. Supreme Court’s fealty to compelled arbitration and cramped reading of Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”), has killed the employment discrimination class action. But that does not imply the death of collective redress for workers suffering from discrimination. In that spirit, this Article engages in two analyses to keep equal employment opportunity alive at scale.
First, it examines forty years’ worth of litigation strategies to assess which ones have been the most successful at collectively accessing justice on behalf of work discrimination victims. It argues that relatively unsuccessful strategies attacked the applicability of the Federal Arbitration Act to employment contracts, the scope of that act and Rule 23, and the enforceability of contracts containing individual arbitration agreements. In contrast, relatively successful strategies—such as public enforcement, qui tam actions, and states using their parens patriae powers to sue employers under Title VII and related statutes—accepted the validity and ubiquity of individual arbitration agreements but nevertheless found a way around them by litigating through nonworker real parties in interest.
Second, this Article applies the principle that nonworker real parties in interest cannot be compelled into arbitration in furtherance of closing the justice gap for workers suffering discrimination. To that end, it advances the provocative claim that the private rights of action in employment antidiscrimination statutes like Title VII countenance private enforcement actions by nonworkers whose interests arguably align with workers, such as certain nonprofit organizations, even when those nonworkers bring claims on their own behalf and not on behalf of workers. Accordingly, one such plaintiff—that is, a real party in interest that did not sign an arbitration agreement with the employer-defendant, that cannot be compelled into arbitration, and that need not be concerned with certifying a class—can file an action seeking remedies that would inure to the benefit of a class of work discrimination victims.
This Article maintains that overcoming our contemporary barriers to workplace equality requires not just attacking those barriers head-on, but also leveraging heterodox avenues for enforcement as a means of navigating around those barriers. A functional, modern enforcement paradigm calls for nonworker real parties in interest to bring private enforcement actions that would inure to the benefit of classes of workers suffering from discrimination, thereby fashioning an employment discrimination class action by any other name.