Johnson v. Nekoosa Papers, Inc. Brief Amicus Curiae

    f

IN THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT 

No. 76-1686
LINDA JOHNSON AND UNITED PAPERWORKERS 
INTERNATIONAL UNION, AFL-CIO,

Plaintiffs-Appellants,
and

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff-Intervenor, 
v.

NEKOOSA PAPERS, INC. (Ashdown,
Arkansas),

Defendant-Appellee.

On Appeal from the United States District Court 
for the Western District of Arkansas

BRIEF FOR THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

ABNER W. SIBAL 
General Counsel
JOSEPH T. EDDINS 
Associate General Counsel
CHARLES L. REISCHEL 
Assistant General Counsel
MARIAN HALLEY 

Attorney
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 E Street, N.W. 
Washington, D.C. 20506



TABLE OF CONTENTS

STATEMENT OF INTEREST .........................  1
PRELIMINARY STATEMENT .........................  2
ISSUES PRESENTED ..............................  3
STATEMENT OF FACTS ............................  4
ARGUMENT ......................................  14

THE DISTRICT COURT ERRED IN REFUSING TO 
CERTIFY THIS ACTION AS A CLASS ACTION .... 14
A. THE DISTRICT COURT ERRED IN LIMITING 

THE CLASS PLAINTIFFS SOUGHT TO 
REPRESENT ...........................  18

E. SINCE RULE 23 DOES NOT AUTHORIZE EITHER 
OF THE NOTICES ISSUED IN THIS CASE,
THE DISTRICT COURT ERRED IN DECERTI­
FYING THE CLASS ON THE BASIS OF THE 
RESPONSE TO THOSE NOTICES ...........  30

1. THE OPT OUT NOTICE WAS INVALID .. 30
2. RULE 23 DOES NOT AUTHORIZE

"OPT-IN" NOTICES ...............  38
CONCLUSION ........,......................*.....  4 2

TABLE OF AUTHORITIES
Cases:

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ....................  33

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) .....................  2

Arkansas Education Assn v. Bd of
Education, 446 F.2d~T63 (8th Cir. 1971).. 20, 41

Page



Cases— Cont'd

Barnett v. W. T. Grant Co., 518
F. 2d 543 (4th Cir. 1975)..................  21

Bowe v. Colgate-Palmolive Co., 416
F. 2d 711 (7th Cir. 1969) ...............t .. 19, 31

Carey v. Gie^ound Bus Co., Inc.,
500 F. 2d 1372 (5th Cir. 1974) ............  20

Carr v. Conoco Plastics, Inc., 423
F. 2d 57 (5th Cir. 1970) ..................  21

Cypress v. Newport News General 
& Nonsectarian Hospital Ass'n,
375 F. 2d 648 (4th Cir. 1967) ............t ... 20

Davis v. Weir, 497 F.2d 139, 146
(5th Cir. 1974) .................... t ....  36

Dennison v. City DejJt. of Water and Power,
10 FEP Cases 1486 (C.D. Calif. 1975) ...... 21

Dickerson v. U.S. Steel Corp., 18 FR Serv
2d 554 (E.D. Pa. 1974) ...................  28

Dickerson v. U.S. Steel Corp., 64
F.R.D. 351 (E.D. Pa. 1974) ...............  33

•

Doctor v. Seaboard Coast Line
R.R. Co., F.2d , 13 FEP Cases
139 (4th Cir. 1976) ......................  3

Eisen v. Carlisle & Jacauelin,
391 F . 2d 555 (2d Cir. 1968) .......r.....  21

Green v. McDonne2. Douglas Corp.,
463 F . 2d 337 (8th Cir. 1972) .............  26

Jenkins v. Blue Cross Mutual Life Ins.
Co., 522 F. 2d 1235 (7th Cir. 1975) ....... 3

Page

ii



Cases— Cont'd
Page

Jenkins v. United Gas Corp.,
400 F.2d 28, 33 (5th Cir. 1968) ...... 19

*Johnson v. Georaia Highway Express,
Inc., 417 F.2d 1122 (5th Cir. 1969) ... 19, 23

Kamm v. California City Development
Corp., 509 F.2d 205 (9th Cir. 1975) .,. 28

Local 194, Retail and Department Store
Union, ___F.2d___ 13 FEP Cases ___
(7th Cir., No. 75-2035, August 24,
1976) ................................  21

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)   26

Nicodemus v. Chrysler Corp., 12 FEP Cases
1265 (N.D. Ohio, 1974)    21

Norwalk CORE v. Norwalk Redevelopment
Agency, 395 F.2d 920 (2d Cir. 1968) ... 36

Parham v. Southwestern Bell Tel. & Tel.
Co., 433 F.2d 421 (8th Cir. 1970) .... 18

Penn v. San Juan Hospital, 528 F.2d
1181 (10th Cir. 1975) ................ 25

Pettway v. American Cast Iron Pipe Co., * *
494 F. 2d 211 (5th Cir. 1974) .........  31, 41

Potts v. Flax, 313 F.2d 284
(5th Cir. 1963) ..................... 1 36

*Price v. Lucky Stores, Inc., 501
F. 2d 1177 (9th Cir. 1974) ............  3, 14

*Reed v. Arlington Hotel Co., Inc.,476 F . 2d 721 (8th Cir. 1973) .........  18 , 19, 22, 24
*Rich v. Martin-Marietta Corp., 522

F. 2d 333 (10th Cir. 1975) ............  19, 31, 33

i n



Cases— Cont'd

Robinson v. Lorillard Corp.,
444 F. 2d 791 (4th Cir. 1971) .........  31

Robinson v. Union Carbide Corp.,
F. 2d , 13 FEP Cases

(No. 75-1008, Sept. 10, 1976) ....... 40
Sabala v. Western Gillette Co., 362
F. Supp. 1142 (S.D. Tex. 1973) .......  20

Senter v. General Motors Corp. , 5 32
F. 2d 511 (6th Cir. 1976)..............  21, 24

Tatum v. Laird, 444 F.2d 947
(D.C. Cir. 1971) .....................  28

Taylor v. Safeway Stores, Inc.,
524 F. 2d 263 (10th Cir. 1975) ........  25

Tipler v. E. I. duPont deNemours 
and Co., 443 F.2d 125 (6th Cir.
1971) ........................ *.......  18, 19

United States v. Allegheny-Ludlum 
Industries, Inc., 517 F.2d 826 
(5th Cir. 1975) ......................  31

*Wetzel v. Liberty Mutual Ins. Co.,
508 F .2d 239 (3d Cir. 1975) . -----!---  14, 18, 21, 23,

31, 33
Williams v. Mumford, 511 F.2d 363

(D.C. Cir. 1975) .............. ....... 3
*Wright v. Stone Container Corp.,

524 F. 2d 1058 (8th Cir. 1975) ........  24, 25
*Yaffee v. Powers, 454 F.2d 1362

(1st Cir. 1966) ......................  3, 28

Page

IV



STATUTES

Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e-et seq.
(as amended, 1972) .......................  passim

Section 706 (f) (1) ............................  5
Section 706(g) .............................  6
28 U.S.C. §1343(4) .........................  3
28 U.S.C. §1292 (a) (1) ......................  3
Rule 23, Federal Rules of Civil Procedure

Rule 23(a) ...............................  5, 13, 14, 20-25, 3]
Rule 23(b)(2) .......................... t. 3, 5, 12, 17, 30-38
Rule 23(b)(3).............................  30, 34, 37, 38
Rule 23(c) ...............................  34, 35, 37, 38
Rule 23(d) ...............................  36, 37

OTHER AUTHORITIES:
Kaplan, "Continuing Work of the Civil 

Committee," 81 Harv. L. Rev. 356,
397-398 (1967) . . ..........................  40, 41

Legislative History of the Equal 
Employment Opportunity Act of 1972 
(G.P.O. 1972) ....................... r___  19

Manual for Complex Litigation (West Pub. Co.
1973) ....................................  39

Miller, "Class Actions," 58 F.R.D. 299 ..... 35
Moore, Federal Practice, Vol. 3B

(Matthew Bender, 1975) ................. t. 33, 34, 35, 37
Wright & Miller, Federal Practices and

Procedure, Vol. 7A (West Pub. Co. 1972) ... 34
118 Cong. Rec. 7168 (1972) ..................  19

Page

v



IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 76-1686

LINDA JOHNSON AND UNITED PAPERWORKERS 
INTERNATIONAL UNION, AFL-CIO,

Plaintiffs-Appellants,
and

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff-Intervenor,
v.

NEKOOSA PAPERS, INC. (ASHDOWN, 
ARKANSAS),

Defendant-Appellee.

On Appeal from the United States District Court 
for the Western District of Arkansas

BRIEF FOR THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is 

the agency charged by Congress with the interpretation,



administration and enforcement of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e-et_ seg .
(as amended, 1972). The Commission's motion to
intervene in this case was granted February 19, 1975,
and the Commission has since been involved in all

1/
aspects of the case.

Private Title VII suits are an "essential means" 
of enforcing Title VII. Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 45 (1974), and class actions provide 
the Commission with essential assistance in eliminating 
broad patterns of employment discrimination. Tĵ e 
Commission is filing this brief amicus curiae because 
this case presents fundamental questions concerning 
the procedures to be used in class actions.

' PRELIMINARY STATEMENT 
This appeal is taken from the June 8, 1976, 

decision of the District Court for the Western District 
of Arkansas, Judge Paul X. Williams. Jurisdiction of

1/ The Commission has appealed separately from the 
district court's ruling of June 8, 1976, restricting 
the scope of its suit in intervention. The Commission's 
appeal is No. 76-1688 on this Court's docket.

2



the District Court was invoked under 28 U.S.C. §1343(4)
and 42 U.S.C. §2000e-5(f)(3). Jurisdiction of this 
Court is invoked pursuant to 28 U.S.C. §1292(a)(1).
See, Price v. Lucky Stores, Inc., 501 F.2d 1177 (9th 
Cir. 1974); Jenkins v. Blue Cross Mutual Life Ins. Co., 
522 F.2d 1235 (7th Cir. 1975); Doctor v. Seaboard Coast
Line R.R. Co.. __F.2d__, 13 FEP Cases 139 (4th Cir. 1976)
Yaffee v. Powers, 454 F.2d 1362 (1st Cir. 1972) . Contra, 
Williams v. Mumford, 511 F.2d 363 (D.C. Cir. 1975)(5-4
vote refusing rehearing en banc).

ISSUES PRESENTED
Whether the district court erred in refusing to 

certify this action as a class action.
1. Whether the district court erred in limiting 
the class plaintiffs sought to represent.
2. Whether the district court erred in decerti­
fying the class on the basis of the response to 
notices requiring class members to opt in or opt
out from the action, when Rule 23(b)(2) does not

* /provide for such notices.—

—  The cases on which the Commission relies primarily 
are marked with an asterisk in the table of contents.

3



STATEMENT OF FACTS
Plaintiffs Linda Johnson and United Paperworkers 

International Union, AFL-CIO, brought this class 
action September 9, 1974, pursuant to Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. §2000e-et_ seq. 
(as amended, 1972), against defendant Nekoosa Papers,
Inc., (formerly Nekoosa-Edwards Paper Company, Inc.)

2/
(A. 8). Prior to bringing this action plaintiffs' 
had filed a charge with the Equal Employment Opportunity 
Commission alleging that "[f]emale employees have been 
denied job^opportunities, wages and fringe benefits 
because of their sex, including but not limited to 
the treatment of maternity conditions by the employer " 
(A. 19). In its determination of this charge the 
Commission found that women were discriminated against 
with respect to maternity benefits; hiring, and job 
assignments, and also found that Title VII had been 
violated "in the manner alleged" (A. 14).

2/ "A" references are to the four volume Appendix
filed in both this case and No. 1688 (the Commission 
appeal) .

4



In their complaint, plaintiffs allege that 
defendant discriminates against women with respect 
to hiring, job assignments, promotions and transfers, 
wages, and benefits, including pregnancy disability 
benefits (A. 10). They seek relief including a 
preliminary, and a permanent, injunction against 
the alleged unlawful practices as well as affirmative 
relief including back pay (A. 11-12).

Plaintiffs brought this action on behalf of a
class composed of defendant's female employees, former
employees and applicants for employment, who had been

»denied equal employment opportunities because of their 
sex. The complaint alleged that plaintiffs met all 
requirements of Rule 23(a) (A. 9). It further alleged
that the action was brought pursuant to Rule 23(b)(2), 
by stating that defendant "has acted or refused to 
act on grounds generally applicable to the class as 
a whole, thereby making appropriate final injunctive 
relief..." (A. 9) .

The Commission was permitted to intervene pursuant 
to Section 706(f)(1) of Title VII by order of February 
19, 1975 (A. 130). Its complaint alleges essentially

5



the same violations of Title VII and requests per­
manent injunctive relief and affirmative relief 
pursuant to Section 706(g) (A. 131-133).

On October 2, 1974, defendant filed its answer 
and a counterclaim against the Union (A. 21). It 
also filed a motion by which it sought, inter alia, 
a determination that the suit could not be brought
as a class action because neither plaintiff was

3 /
"representative of a class" (A. 28, 35).

Prior to the hearing on defendant's motion, 
plaintiffs filed interrogatories and a motion to 
produce, both of which sought information about 
defendant's practices affecting female job applicants 
and past and present employees (A. 53-57). In lieu 
of answering the interrogatories and producing the 
requested documents, defendant filed motions for 
protective orders (A. 58). It did not respond to

3_/ The motion also sought to realign plaintiff 
Union as a defendant and to require that Ms. Johnson 
and the Union be represented by separate counsel 
(A. 35). These aspects of the motion were denied 
(A. 355) and are not presented by this appeal.

6



plaintiffs1 requests prior to the hearing on the 
class action questions, and plaintiffs therefore 
filed a motion to compel (A. 134) . The district 
court did not rule on this motion.

At the hearing on February 26 and 27, 1975, 
there was evidence showing that defendant employed 
few women, and that those that it did employ were 
primarily in clerical jobs (A. 301-304). Thus, for
the years 1971 through 1974, 1the composition of the
workforce was as follows (A. 301-304):

1971 1972 1973 1974

Males 483 503 496 547

Females 25 30 29 28

(Female
clericals) (20) (23) (22) (22)

•

TOTAL 508 533 525 575

Additionally, there was uncontroverted evidence that

defendant had, in the past, refused to hire women for

all but one production job (A. 221, 284 , 286) . Ms.
Johnson testified that when she first sought employ­
ment with Nekoosa she had at first been told that 
there were no openings for females (A. 224, 139, 
lines 6-7). When she did obtain employment with

7



Nekoosa, she testified, she was told that she was 
lucky since there was only one opening for a woman 
(A. 225, lines 18-24). Finally, the court inquired 
as to the number of former applicants who might have 
been denied employment because of their sex (A. 291). 
Although plaintiffs could not answer precisely, not 
having been able to complete discovery, they estimated 
that the class would include some 200 applicants (A. 292). 
This estimate was later increased to 330, on the basis 
of a sampling taken by the General service Administration 
(See, Supplemental Memorandum in Support of EEOC's 
Motion, filed January 19, 1976, page 2; and transcript 
of proceedings on May 14, 1976, p.7.

Ms. Johnson testified at the hearing about her
4/

problems in obtaining promotions (see, e.g. A. 188, 190). 
She also testified that she was aware that other women 
had had specific problems in gaining and keeping promotions 
(A. 141-142, 151-152). Additionally, she testified 
that certain supervisors would allow men to assist one 
another in doing heavy work, but would not allow women 
to receive similar assistance (A. 167, 283-284).

4/ See also, Affidavits of Linda Johnson, A. 65, 69.

8



oral order allowing a class action, but only on behalf
of present female employees (A. 287-288, 299). It thus
apparently found that Ms. Johnson and the Union could

5/
adequately represent the class. However, it restricted 
the class to employees alone, apparently because it did 
not have definite information as to the existence of 
rejected applicants (A. 295, lines 20-24). At the same 
time it denied plaintiffs' motion for discovery con­
cerning applicants (A. 299, lines 8-10). Finally, it 
ordered plaintiffs to notify the class within seven

4

days so that individuals could decide whether to opt

On February 27, the district court issued an

5/ Defendant's motion to deny a class action altogether 
(A. 35) was denied, as was its motion (A..35) to determine 
that neither Ms. Johnson nor the Union was an adequate 
representative (A. 289).

With respect to Ms. Johnson the court explained 
(A. 287-288) :

...the court will issue a temporary order 
to proceed as a class action. That Linda 
Johnson, in spite of the fact that she had 
a fight and she got shot had her spleen re­
moved and all those things and has two 
children, babysitting problem, and working 
graveyard shift with a thirteen month old 
baby, all of which has its drawbacks, she 
appears to be an intelligent young lady and 
would be cooperative with her able attorneys 
in this class action suit, ordinarily put on 
by attorneys.

See also the district court's questions to Ms. Johnson 
(A. 145-147). - 9 -



into or opt out from the action (A. 288, 299).
On March 6, 1975, the district court issued orders

formally restating its previous oral rulings that 1)
plaintiffs could represent a class; 2) the class was
limited to present female employees; and 3) discovery
concerning female applicants was denied (A. 355-356).
It further provided (A. 356):

Plaintiffs have seven days from February 
27, 1975, the date of the oral order, in 
which to notify the members of the class 
under Rule 23(b). The plaintiffs have 
until April 1, 1975, to inform the court 
of the response of the individual class 
members.
Plaintiffs accordingly issued a notice which

described the action and the relief sought (A. 357).
6/

The notice explained that: "You will be excluded from
the class if you request exclusion in writing on or

6/ Plaintiffs' notice also stated that "[t]hose who 
request exclusion as plaintiffs may be joined by the 
court as parties defendant" (A. 359). This incorporated 
the district court's statement of February 27, 1975 
(A. 288): "If you've got a maximum of say, of thirty 
employees and say the out belt [they opt out] down to 
some small number, I would let you make them part of 
your defendant rather than, and to bring them in against 
their will, rather than place a burden of class back on 
any body.

10



before the 30th day of March, 1975," and stated that 
requests for exclusion should be sent to the clerk of 
the court (A. 359). Thereafter, on March 10, 1975, the 
district court, at defendant's request, ordered the

court clerk to issue a second notice, prepared by
7/

defendant (A. 361) . This notice also explained the 
nature of the action and the relief sought. It further 
provided (A. 364) :

Enclosed herewith you will find a form 
to opt out of the proposed class action.
It is requested that you indicate your 
choice in this matter, sign the enclosed 
form, and return it to the undersigned in 

, the enclosed, stamped and addressed envelope 
prior to April 1, 1975. 8/

7/ It appears that the district court did not require 
plaintiffs to obtain defendant's concurrence in the form 
of the notice, plaintiffs were ordered to Send, nor for 
the defendant to obtain plaintiffs' concurrence in the 
notice defendant sent.
8/ The form enclosed with this notice bore the caption 
of the case and provided, in pertinent part (A. 365):

The undersigned female employee of Nekoosa- 
Edwards Paper Company, Inc., Ashdown, Arkansas, 
respectfully requests to be

included in
excluded from

the class action in the above case,.in accordance 
with the terms of a Notice of Pendency of Class 
Action.

/----7

/ 7

li



On March 17, 1975, the Commission, which, as
intervenor, had participated in the February 26-27 
hearing, filed a motion for reconsideration of and 
relief from the class action orders of March 6 and 10,
1975 (A. 368). Plaintiffs joined in this motion (A. 378). 
The motion requested— as plaintiffs previously had 
requested— certification pursuant to Rule 23(b)(2) 
of a class including applicants and former employees.
The motion further asked that all notices, and the 
answers thereto, be declared null and void (A. 369-370).

During the pendency of the Commission's motion, 
the time for class members to respond to the notices 
expired. In response to the two notices, five women 
opted into the class and 31 opted out of the action 
(A. 395-396).'

A hearing on the Commission's motion to reconsider 
the class action orders was held May 14, 1976. Prior 
to the hearing, on March 8, 1976, the Commission filed 
extensive interrogatories, a large number of which 
(questions 19 through 60) dealt with applicants. 
Defendant did not answer these interrogatories but 
on March 15, 1976, moved for a protective order relieving

12



it from answering until, inter alia, a determination 
on the class action was made. On April 23, 1976, the 
Commission filed a motion to compel answers to the 
interrogatories. The district court did not act on 
this motion before the hearing on the motion for re­
consideration.

By order of June 8, 1976, the district court 
denied the motion for reconsideration of its March 
6, 1975 order (A. 397). In addition, apparently 
because only five women opted into the action, and 
31 opted out (A. 395),the court ruled, sua sponte, 
that "a' class action may not be maintained because of 
the failure to meet the prerequisites to a class action 
set forth in Rule 23(a) of the Federal Rules of Civil 
Procedure," and limited the scope of the plaintiffs’ 
case to the precise allegations of their administrative 
charge (A. 397-398).

This appeal followed.

13



ARGUMENT

THE DISTRICT COURT ERRED IN 
REFUSING TO CERTIFY THIS ACTION 
AS A CLASS ACTION

INTRODUCTION
The district court refused to allow this suit 

to proceed as a class action for the stated reason 
that it did not comply with the requirements of Rule 
23(a) (A. 397). The court did not, however, specify
any grounds upon which this conclusion was based.
Its denial of class action status is reversible for 
that reason alone. Price v. Lucky Stores, Inc., 501 
F.2d 1177, 1179 (9th Cir. 1974); see also, Wetzel v. 
Liberty Mutual Ins. Co., 508 F.2d 239, 245, n.6 (3d 
Cir. 1975) .

It is quite clear, however, that judicial 
economy would not be served by remanding this action 
merely for the district court to specify the legal 
grounds of its decision. This is because, from an 
examination of the record below, it is clear that 
the district court's error lay, not in the legal 
standards it applied to determine whether the require­
ments of Rule 23(a) have been met, but rather, in the

14



procedures the court required to be followed to 
ascertain the relevant facts to which those standards 
must be applied. Thus, the entire process by which 
the district court arrived at its conclusion that this 
suit is not an appropriate class action is vitiated by 
error. Therefore its class action ruling must be re­
versed with instructions as to the appropriate manner 
in which to proceed to a class determination.

It is clear that the district court decertified 
the class of present employees/which it had previously 
held appropriate/because of the small number of such 
individuals who either opted into, or did not opt out 
of, this action. There is no other reasonable explana­
tion for that decision. For, in previously certifying 
that class, the court had explicitly held that there 
was adequate representation, and had implicitly held 
that there was sufficient commonality and typicality 
for the class thus certified. The only relevant 
change in circumstances after the certification ruling 
was the response to the opt out and opt in notices 
which the court had contemporaneously ordered issued.

15



But the number of responses to those notices 
was determined by the court's earlier rulings 1) 
limiting the class (and thus the recipients of the 
notices) to the 39 women presently employed the 
Company, and 2) requiring these women to respond in 
some fashion (either by not opting out, or by opting 
in) to the notices issued. And each of those rulings 
was clearly, and independently, in error.

The limitation of the class to present employees 
was plainly in error. The only reason the court gave 
for that limitation was that the sub-classes of non­
employee (applicants and former employees) sought to 
be represented had not been identified (A. 295). 
Furthermore, in light of its other contemporaneous 
rulings as to'numerosity and adequacy of representation, 
and under the governing case law of this Circuit with 
respect to commonality and typicality, the court could 
have given no other reason. But it was manifest error 
for the court to prevent representation of applicants 
and past employees on the grounds that they had not 
been identified, because the district court refused 
to allow the plaintiffs— or the Commission— to conduct

16



the discovery necessary to identify such individuals 
(A. 356) .

Requiring those individuals in the class of 
employees certified to respond to the notices issued 
was equally erroneous, since the court was not authorized 
under Rule 23 to require either of those notices to be 
issued. This action was brought, and was clearly 
maintainable, under Rule 23(b)(2). But Rule 23 does 
not permit opting out in (b)(2) actions. Therefore 
the first notice was invalid. The second notice re­
quired class members to opt into the action. But 
Rule 23 does not permit the courts to thus condition 
class representation upon a requirement that class 
members opt into the action. Therefore the second 
notice which the court ordered issued was also in­
valid.

Since the entire process by which the district 
court reached its conclusion that this suit was not 
an appropriate class action was permeated with error, 
that determination must be reversed, and the court 
must be instructed as to the appropriate manner of 
proceeding to a class determination. Specifically,

17



the court must be instructed that it is necessary 
to allow discovery as to the class sought to be 
represented prior to a determination that the class 
must be limited, and that the court cannot condition 
the maintenance of this action upon the number of 
class members who opt into, or fail to opt out of, 
this action.

A. The District Court Erred In Limiting The 
Class Plaintiffs Sought to Represent.

Plaintiffs, a present employee of the Company 
and her collective bargaining representative, brought 
this Title VII action to challenge a variety of de­
fendant's employment practices,all alleged to dis­
criminate on the basis of sex. They sought to represent a 
class composed of present and past employees and job 
applicants who had been subjected to these practices.
Thus this action was brought as an "across the board" 
Title VII class action of the kind which this and other 
courts have repeatedly held to be appropriate. Reed v. 
Arlington Hotel Co., Inc., 476 F.2d 721 (8th Cir. 1973) ; 
Parham v. Southwestern Bell Telephone & Telegraph Co.,
433 F.2d 421 (8th Cir. 1970) ; Wetzel v. Liberty Mutual 
Ins. Co., 508 F.2d 239 (3d Cir. 1975); Tipler v. E.I.

-18-



duPont de Nemours and Co., 443 F.2d 125 (6th Cir.
1971); Rich v. Martin-Marietta Corp., 522 F.2d 333
(10th Cir. 1975) ; Johnson v. Georgia Highway Express,

9/
Inc.. 417 F.2d 1122 (5th Cir. 1969).

9/ The courts have long recognized that such "across 
the Board" Title VII class actions are particularly 
appropriate, since "[a] suit for violation of Title VII 
is necessarily a class action as the evil sought to be 
ended is discrimination on the basis of a class character­
istic, i.e., race, sex, religion or national origin."
Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th 
Cir. 1969). Accord: Reed v. Arlington Hotel Co.,
supra, 476 F.2d at 723. Jenkins v. United Gas Co.,
400 F.2d 28, 33 (5th Cir. 1968). In amending Title VII 
in 1972, Congress specifically commended the courts, 
in interpreting Rule 23, to be "...particularly cognizant 
of the fact that claims under Title VII involve the 
vindication of a major public interest, and that any 
action under the Act involves considerations beyond 
those raised by the individual claimant." Section-by- 
Section Analysis of H.R. 1746, 118 Cong. Rec. 7168 
(1972) , Legislative History of the Equal Employment 
Opportunity Act of 1972, p. 1847 (G.P.O. 1972).
Congress also endorsed the case law previously established 
under Title VII, and specifically the leading class 
action cases. Legislative History, supra pp. 1844,
1847. Virtually all the leading cases at that time 
had approved "across the board" class actions. See, 
e.g., Johnson v. Georgia Highway Express, Inc., supra; 
Tipler v. E.I. duPont de Nemours & Co., supra; Bowe v. 
Colgate-Palmolive Co., supra.

-19-



The district court, in certifying the limited
class that it did, held that, even as limited to the
39 present employees, the class was sufficiently
numerous to comply with Rule 23(a)(1). Under the
case law of this Circuit, that determination was 

10/
unassailable. Therefore there was no question
that the proposed class— including, in addition,
past* employees and rejected applicants (alone estimat-

11/
ed to number 200-300 persons)— was sufficiently numerous.

The district court also held that both the 
individual plaintiff and the union could adequately 
represent the class. Under appropriate legal

10/ See, Arkansas Education Assn, v. Bd. of Education, 
446 F.2d 763,.765 (8th Cir. 1971)(Class of 20 
sufficiently numerous). See also Cypress v. Newport 
News General Nonsectarian Hospital Ass'n., 375 
F.2d 648, 653 (4th Cir. 1967)(class of 18); Sabala v. 
Western Gillette Co., 362 F.Supp. 1142, 1147 (S.D.
Tex. 1963)(26); Carey v. Greyhound Bus Co., Inc.,
500 F.2d 1372, 1379-81 (5th Cir. 1974)(28).
11/ See Supplemental Memorandum filed Jan. 19, 1976,
P • 2; and A. 292 (lines 4-6) .

-20-



standards, that determination was clearly also correct.
The district court, however, held that the class 

must be limited only to the present employees of the 
Company (A. 299, 356). The only reason the court gave

13/

13/ With respect to the individual plaintiff the court 
was apparently troubled only by factors which are irrelevant 
to a determination as to adequacy of representation, viz, 
her personal ability to assist with the litigation and 
her potential availability to do so (A. 287). However, 
adequacy of representation is properly determined by an 
analysis of two factors: 1) competency of the plaintiff's
counsel; and 2) the absence of antagonistic interests 
between the plaintiff and the class she seeks to represent. 
See, e.g. Wetzel v. Liberty Mutual Ins. Co., supra, 508 
F.2d at 247; Senter v. General Motors Corp., 532 F.2d 511, 
525 (6th Cir. 1976); Barnett v. W.T. Grant Co., 518 F.2d 
543, 548 (4th Cir. 1975); Eisen v. Carlisle & Jacquelin,
391 F.2d 555, 562 (2d Cir. 1968); Nicodemus v. Chryslef 
Corp., 12 FEP Cases 1265,*1267 (N.D. Ohio, 1974);
Dennison v. City Dept, of Water & Power, 10 FEP Cases 
1486, 1490 (C.D. Calif. 1975). The competency of 
plaintiff's counsel is unquestioned. There was no 
showing of adverse interestswithin the cla^s, as required 
to deny certification on this ground. See Carr v. Conoco 
Plastics, Inc., 423 F.2d 57 (5th Cir. 1970). Compare 
Wetzel v. Liberty Mutual Ins. Co., supra, 508 F.2d at 247. 
("The interests... in combatting the sexually discrimintory 
policies of the Company surely are co-extensive with all 
female technical employees, whether formerly or presently 
employed").

The district court properly rejected a challenge 
to the union's representation (A. 355). See Local 194,
Retail and Department Store Union, ___F.2d___, 13 FEP
Cases ____ (7th Cir., No. 75-2035, August 24, 1976).

-21-



for this ruling was that the other individuals sought
14/

to be represented had not been identified. Furthermore, 
under the governing law of this Circuit, that was the 
only reason the court could reasonably have given.

Under this Court's decision in Reed v. Arlington 
Hotel Corp., supra, no challenge to the commonality 
requirement of Rule 23(a)(2) was possible in this action. 
Reed held that an individual allegedly affected by one 
sort of employment decision (there, discharge) could 
represent a class of individuals affected by different 
sorts of employment decisions(inter alia, failure to

14/ This reason was suggested by the court, in a 
statement to counsel, as follows (A. 295):

The Court: If that's going to Tje a
contention, the contrary contention 
made by Nekoosa Edwards, the Court 
does not have any definite information 
that any informed applicant was actually 
mistreated because none of them have 
come forward and filed an action.
And I dont think does not seem to me 
like it is indicated for a Court to 
offer somebody to go out and so seek, 
is that the attitude they put you in?

-22-



promote and failure to hire) because all such
decisions were allegedly rooted in a common bias

15/
(race discrimination). Thus the individual 
plaintiff in this action can similarly represent 
individuals affected by different sorts of employ­
ment decisions— i.e., applicants denied employment, 
as well as past and present employees subjected to 
various discriminatory terms and conditions of 
employment— because each of the practices challenged 
on her behalf, and on behalf of the entire class, 
is likewise allegedly rooted in a common bias 
against females.'

Therefore the only requirement of Rule 23 which 
the district court did not resolve in plaintiff's 
favor, and which was subject to challenge, was the 
typicality requirement of Rule 23(a)(3). And the one 
reason this Court has specified for denying represent­
ation under that provision is the class representatives

15/ Accord, e.q., Johnson v. Georgia Highway Express 
Co., supra, 417 F.2d at 1124 (5th Cir. 1969); Wetzel 
v. Liberty Mutual Ins. Co., supra, 508 F.2d at 253 
(3d Cir. 1975); Barnett v. W.T. Grant Co., 518 F.2d 
543, 547 (4th Cir. 1975).

- 23 -



failure to "demonstrate that there are other members
of the class who have similar grievances." Wright v.
Stone Container Corp., 524 F.2d 1058, 1062(8th Cir. 

16/
197 5) . Thus the only reason the district court 
gave for denying representation to applicants and 
past employees is also the only reason for which * *

16/ Wright implicitly recognizes that past and present 
employees, and job applicants, can have similar grievances 
since it criticizes the plaintiff in that case, not for 
seeking to represent a class composed of all of those 
categories, but for not identifying individuals within 
the class so described who had similar grievances.
See also Senter v. General Motors Corp., 532 F.2d 511,
525, n.31 (6th Cir. 1976)("To be typical a representative’s

* claim need not always involve the same facts or law, 
provided there is a common element of fact or law"). 
Plaintiff's claims here involve several elements in 
common with those of the entire class. She asserts 
that she has personally experienced virtually every 
practice challenged, including refusal to hire (albeit 
temporarily) . ■ Furthermore, she asserts that much of 
the discrimination that both she and all members of 
the class have suffered has resulted from a general 
policy of restricting females to specified jobs.
Indeed, in this respect the present action is 
in principle almost identical to Reed v. Arlington 
Hotel Co., supra.

- 24 -



it could clearly deny class representation under 
17/

Rule 23(a) (3) .
But, although, under Wright, it is permissible 

for a district court to refuse to certify a class 
where the representative has not demonstrated that 
there is in fact a class composed of identifiable 
individuals who may have been subjected to similar 
discriminatory practices, certainly such a ruling 
may not be made without allowing the representative 
party the discovery necessary to make such a showing.

17/ Although Wright may be read to imply that there 
could be additional grounds for denying class action 
treatment under this provision, we read it merely to 
recognize the confusion which has sometimes surrounded 
the interpretation of that provision. See Taylor v. 
Safeway Stores, Inc., 524 F.2d 263 , 269 (J-Oth Cir. 
1975). For, as the Tenth Circuit has recognized, 
virtually any additional requirement which could be 
read into that provision is already covered by one 
of the other provisions of Rule 23(a) . See Taylor 
v . Safeway Stores, Inc., supra; Penn v. San Juan 
Hospital, 528 F.2d 1181, 1189 (10th Cir. 1975).

-25-



As Judge Lay aptly remarked with respect to a
contention that a similar manner of proceeding
was appropriate:

"The ancient Hebrew expression 
'they tie our hands and then 
reproach us that we do not use 
them' gives sufficient response

Green v. McDonnell Douglas 
Corp., 463 F.2d 337, 344 (8th Cir.
1972)(Concurring opinion) 18/

But that is what precisely was done in this case.
Prior to the February 26-27, 1975, hearing on 

defendant's motion to deny class representation,, on 
November 13, 1974, plaintiffs filed their first 
interrogatories and request for production of 
documents (A. 53-56,57). Plaintiffs sought infor­
mation concerning distribution of jobs by sex; awards 
of promotions and transfers, by sex, for past and 
present employees; new hires since 1970, by sex; 
and the existence of records of applications for

18/ Green was, of course, affirmed on the issue of 
the necessity for additional discovery prior to re­
solving the issue in question. McDonnell Douglas Corp. 
v. Green, 411 U.S. 792, 800 (1973)([R]espondent
should have been accorded the right [appropriately] 
to prepare his case...."

- 26 -



employment (A. 53-57). Defendant did not comply
with these requests, but filed a motion for a

19/
protective order (A. 58). And, although plaintiffs
filed a motion to compel discovery on February 25,
1975, on the ground that discovery was necessary to
their presentation concerning the size of the class,
the court did not act on the discovery motions prior
to the class action hearing. Again, during the time
that the motion to reconsider the exclusion of applicants
and former employees was pending, the Commission filed
extensive interrogatories. Once more, the defendant

* •filed a motion for a protective order, the Commission 
filed a motion to compel discovery, and the district 
court failed to act.*

19/ Defendant subsequently complied with the re­
quest for production of documents, but these documents 
— EEO-1 forms, the company's affirmative action plan, 
and its most recent seniority list— did not contain 
information identifying applicants or past employees.

The defendant did not answer the interrogatories 
(A. 35) .

-27-



Refusal to grant this discovery was clear error. 
Plaintiffs could not identify applicants and past 
employees without gaining access to information in 
defendant's personnel records. In a similar situation, 
the First Circuit reversed a denial of a class action, 
explaining that "[t]o pronounce finally, prior to 
allowing any discovery, the non-existence of a class 
or set of sub-classes, when their existence may depend 
on information wholly within defendants' ken, seems 
precipitate and contrary to the pragmatic spirit of 
Rule 23." Yaffee v. Powers, 454 F.2d 1362, 1366 
(1st Cir. 1966). See Kamm v. California City Develop­
ment Corp., 509 F.2d 205, 209-210 (9th Cir. 1975); 
Tatum v. Laird, 444 F.2d 947, 957, r i . 21 (D.C. Cir. 
1971); Dickerson v. U .S. Steel Corp., 18 FRServ 2d 
554, 555 (E.D. Pa. 1974)("Plaintiffs would be sub­
stantially prejudiced if they had to make a showing 
that their action should be maintained as a class 
action without possessing sufficient information 
about the size and character of their potential 
class").

-28-



Since the district court did not allow the
plaintiffs to obtain the information necessary for 
identifying applicants and past employees, its refusal 
to permit plaintiffs to represent such a class, on the 
ground that the class members had not been identified, 
is manifest error.

-29-



B. Since Rule 23 Does Not Authorize 
Either of the Notices Issued 
In This Case,The District Court 
Erred In Decertifying the Class 
On The Basis of The Response To 
These Notices

The district court did not state that it
certified the class of female employees pursuant to
Rule 23(b) (3), rather than 23(b) (2), which plaintiffs
had requested. Nevertheless, since it ordered
issuance of "opt out" notices, which are only
permitted under Rule 23(b)(3), it may be assumed
that the action was certified pursuant to 23(b) (3).

» •

This, we believe, was error; we submit that the action 
was properly a 23(b)(2) action. However, even if Rule 
23(b)(3) was appropriate, the use of "opt-in" notices 
was not, since such notices are not authorized by 
Rule 23. Accordingly, the decertification of the class 
based on the response to impermissible notices was error.

1. The Opt Out Notice Was Invalid
a. This action was properly brought pursuant to 

Rule 23(b) (2) .

-30



Rule 23(b)(2) provides for class action 
treatment when the requirements of Rule 23(a) 
are met and:

(2) The party opposing the class 
has acted on grounds generally 
applicable to the class, thereby 
making appropriate final injunctive 
relief or corresponding declaratory 
relief with respect to the class 
as a whole.

Because Title VII actions involve claims of
bias directed at the entire class, courts have
held that they are properly maintained pursuant » •
to Ruled 23 (b) (2). See, e.g., Robinso n v.
Lorillard Corp., 444 F.2d 791, 801-802 (4th Cir.
1971); Pettway v. American Cast Iron Pipe,Co.,
494 F.2d 211, 257 (5th Cir. 1974); United States 
v. Allegheny-Ludlum Industries, Inc., 517 F.2d 
826, 878 (5th Cir. 1975) ; Rich v. Martin Marietta 
Corp., supra, 522 F.2d at 341-342. See also, 3owe 
v. Colgate-Palmolive Co., 416 F.2d 711, 720 (7th Cir.

-31-



4  *

1969). As the Third Circuit said in Wetzel v. 
Liberty Mutual Ins. Co., supra, 508 F.2d at 250-251:

A Title VII suit against discri­
minatory hiring and promotion 
policies is necessarily a suit to 
end discrimination because of a 
common class characteristic, in 
this case sex. Bowe v. Colgate- 
Palmolive Co.. 416 F .2d 711, 719 
(7th Cir. 1969); Oatis v. Crown 
Zellerbach Corp., 398 F.2d 469, 499 
(5th Cir. 1968). The conduct of the 
employer is actionable “on grounds 
generally applicable to the class," 
and the relief sought is "relief 
with respect to the class as a 
whole." The class, all sharing a 
common characteristic subjected to 
discrimination, is cohesive as to 
the claims alleged in the complaint.
Thus, a Title VII action is 
particularly fit for (b)(2) treatment, 
and the drafters of Rule 23 specifically 
contemplated that suits against dis­
criminatory hiring and promotion policies 
would be appropriately maintained under 
(b) (2). Advisory Committee, Notes on 
1966 Amendments to Federal Rules of 
Civil Procedure, 39 F.R.D. 69, at 102.
Since, a Title VII suit is essentially 
equitable in nature, it cannot be charac­
terized as one seeking exclusively or 
predominately money damages. Franks v. 
Bowman Transportation Co.. 495 F.2d 398 (5th 
Cir. 1974). (Footnote omitted.)

-32-



Accord, Moore, Federal Practice, Vol. 3B, 1123.40,
p. 23-651 (Matthew Bender, 1975): "a suit under 
the Civil Rights Act by an employee challenging 
employment and promotional discrimination is by 
the very nature of the claim asserted, appropriate 
for class action under (b) (2)." See, Dickerson 
v. U.S. Steel Corp,, 64 F.R.D. 351, 356-359 (E.D. 
Pa. 1974), discussing in detail the basis for a 
23(b) (2) Title VII action. And, since monetary 
relief in a Title VII case is essentially equitable 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct 
2362 (1975), its availability does not affect the 
propriety of Rule 23(b) (2) treatment. See,Rich v. 
Martin Marietta Corp., supra, 522 F. 2d at *342.

Thus there can be no question that this 
action was properly maintainable, and should have 
been certified, under Rule 23 (b) (2).

-33-



b. Opting Out is not Permitted
in a Rule 23 (b) (2) action.

It is hornbook law that class members may 
not opt out of a 23(b) (2) action. Moore, supra, 
523.60, p. 1202; Wright & Miller, Federal Practice 
and Procedure. Vol. 7A, §1786 pp. 142-143 (West 
Pub. Co. 1972), Indeed, the very purpose, and 
principal benefit, of a Rule 23(b) (2) action is
gaining res judicata as to the entire class.

20/
This was made perfectly clear in Rule 23 (c) which 
defines the res judicata effects of Rule 23 actions, 
and which specifically differentiates between (b)(2) 
actions and those certified under (b)(3) on the 
grounds that all members described in a (b)(2) class 
are bound, whereas class members in a (b)(3) action 
can opt out.

2Q/ Rule 23 (c) provides in pertinent part:
(2) In any class action maintained under subdivision 

(b)(3), the court shall direct to the members of the class 
the best notice practicable under the circumstances, in­
cluding individual notice to all members who can be iden­
tified through reasonable effort. The notice shall advise 
each member that (A) the court will exclude him from the 
class if he so requests by a specified date; (3) the judg­
ment, whether favorable or not, will include all members 
who do not request exclusion; and (C) any member who does 
not request exclusion may, if he desires, enter an appear­
ance through his counsel. (Footnote continued)

-34-



Since the primary characteristic of 23(b)(2)
class is that it is homogeneous, Wetzel v. Libertv 
Mutual Ins. Co., supra, 508 F.2d at 256, it is 
accepted that the requirements of due process are 
not offended by the lack of opportunity for class 
members to exclude themselves from the action.
Moore, supra, 523.60, p. 23-1202; Wright and Miller, 
supra, Vol. 7A, §1786, pp. 142-143. See, Miller, 
"Class Actions," 58 F.R.D. 299, 315. Thus, if this 
action is fully and fairly litigated, there is no 
unfairness in refusing to permit class members to 
exclude themselves from the judgment. If, after 
fully contested litigation, it is determined that the 
defendant discriminates on the basis of sex, that 
discrimination must be eliminated regardless of

2q/ (Footnote continued)
(3) The judgment in an action maintained as 

a class action under subdivision (b)(1) or (b)(2), 
whether or not favorable to the class, shall include 
and describe those whom the court finds to be members 
of the class. The judgment in an action maintained 
as a class action under subdivision (b)(3), whether 
or not favorable to the class, shall include and 
specify or describe those to whom the notice provided 
in subdivision (c)(2) was directed, and who have not 
requested exclusion, and whom the court finds to be 
members of the class.

-35-



a/
whether all class members desire its elimination.
On the other hand, if it is determined that the 
defendant did not discriminate as to the issues 
fully and fairly litigated, it would clearly be 
wasteful - and useless - to permit those issues 
to be relitigated.

But, precisely because of the binding effects 
of a (b)(2) action, fully ensuring that there is 
adequate representation of the class is essential. 
Therefore, in such an action, the court may require

2y
notices to the class to be issued under Rule 23(d) (2).

5/ Norwalk CORE v. Norwalk Redevelopment Agency, 395 
F.2d 920, 937 (2d Cir. 1968) ("The fact that some members 
of the class were personally satisfied . . .  is irrelevant") 
Davis v. Weir, 497 F.2d 139, 146 (5th Cir. 1974). Cf.
Potts v. Flax, 313 F.2d 284, 288-289 (5th Cir. 1963).

2 2 / Rule 23(d) (2) permits "appropriate orders":
(2) requiring, for the protection of the mem­

bers of the class or otherwise for the fair conduct of 
the action, that notice be given in such manner as the 
court may direct to some or all of the members of any 
step in the action, or of the proposed extent of the 
judgment, or of the opportunity of members to signify 
whether they consider the representation fair and 
adequate, to intervene and present claims or defenses, 
or otherwise to come into the action;

- 36 -



limited to those designed to ensure adequacy of
representation - "the fair conduct of the action."
Thus it specifies that class members may be informed
of the status and potential effect of the action,
and may be provided the opportunity to express
their views as to adequacy of representation, to
intervene in the action, or to "otherwise come into 

2 3 /
the action." It therefore authorizes class members to 
participate in - but not to opt out of - the action. 
Compare Rule 23(c)(2) authorizing opt out notices in 
(b)(3) actions. Nor could Rule 23(d)(2) be construed 
to permit opting out in a (b)(2) action. For the 
effect of such an interpretation of Rule 23(d)(2) 
would be to repeal Rule 23(c) (2) - the whole purpose 
of which is to limit opting out to (b)(3) actions.

However, the notices permitted under that Rule are

23 / This quoted phrase cannot be interpreted to permit 
notices requiring class members to opt into the action 
as a condition of class representation, for the reasons 
given infra, p. 39. It would allow notices permitting 
class members to appear by counsel and monitor the 
prosecution of the action. See Miller, supra, 58 F.R.D. 
at 316; Moore, supra, 523.45 [1], p. 23-704 and 523.72.

-37-



Accordingly, this action should have been 
certified as maintainable under Rule 23(b) (2), 
and therefore the first notices which the district 
court ordered issued - the opt out notices - were 
invalid. Put another way, since this action is 
an appropriate (b)(2) action, the fact that in­
dividuals may not have wished to be represented in 
this action - by itself - is irrelevant. The 
court could have heard the objections of class members 
as to adequacy of representation, and could have 
permitted dissatisfied persons to participate in 
the action. But, it could not properly decertify 
the action merely because class members - for unstated 
reasons - indicated that they did not wish to be 
aligned with the plaintiff in this action.

2. Rule 23 does not authorize 
"opt-in" notices.

Even if the class were properly certified pursuant 
to Rule 23(b)(3), and the notice allowing class members 
to opt out were properly ordered under 23(c) (2), the

38-



conflicting notices issued by the district court, 
requiring class members to opt out or opt in were 
improper. The issuance of two separate notices, 
describing the action in different terms and 
requiring different actions of class members could 
only have worked to confuse the class. For this 
reason alone, the issuance of the second notice, after 
the first had been issued, should be held to have 
constituted an abuse of discretion.

But the second notice itself was invalid. It 
is well recognized that there is no authority any­
where in Rule 23 which permits such an "opt in " 
notice. See, Manual for Complex Litigation, Section 
1.46, p. 37 (West Pub. Co. 1973) : "The requirement of 
'opting-in' must, therefore, under Rule 23 as it is 
presently written, be regarded as a clear abuse of 
discretion." Indeed, the Advisory Committee drafting 
Rule 23 "specifically rejected the notion of requiring 
absent class members to opt into the action to secure 
its benefits." Wright & Miller, supra, §1787, p. 157.

-39-



One reason for rejecting the opt-in procedure was 
explained by Professor Kaplan, Reporter to the Advisory 
Committee in 1966, as follows (Kaplan, " Continuing 
Work of the Civil Committee,"81 Harv. L. Rev. 356, 
397-398 (1967)):

If, now, we consider the class,rather than 
the party opposed, we see that requiring 
the individuals affirmatively to request 
inclusion in the lawsuit would result in 
freezing out the claims of people - espec­
ially small claims held by small people - 
who for one reason or another, ignorance, 
timidity, unfamiliarity with business or 
legal matters, will simply not take the 
affirmative step, (emphasis added).

The decision of the Fifth Circuit in Robinson
v. Union Carbide Corp.. __F.2d __, 13 FEP Cases_
(No. 75-1008, Sept. 10, 1976), approving an "opt-in" 
notice for purposes of back pay, but not for injunctive 
relief, is not to the contrary. In Robinson members 
of a previously certified class were required to 
opt in as a condition of obtaining back pay. They 
were not, as in this case, required to opt in for 
purposes of establishing whether the case would pro­
ceed as a class action. Nor could they have been

-40-



»

required to do so, since the very purpose of the 
Rule as pointed out by Kaplan, supra. is to provide 
representation for small claimants who would other­
wise not be willing or able to bring suit.

This Court has recognized that, in an employment 
case, the class action is useful because it eliminates 
the factor of "natural fear" that deters many individ­
uals from attempting to secure their rights. Arkansas 
Education Ass'n,supra, 446 F.2d at 765. Accord, 
Pettway v. American Cast Iron Pipe Co., supra, 494 
F.2d at 257, fn. 142.' But, this "natural fear" is 
likely to assert itself where, as in this case, the 
members of the small class of female employees are 
each required to ask to be included in the suit 
against their employer. Such requirement is not 
permissible because it would almost inevitably have 
a chilling effect on the exercise of Title VII rights.

-41-



CONCLUSION
For the reasons stated above, it is respect­

fully submitted that the decision in the District 
Court, denying a broad class action, should be 
reversed.

Respectfully submitted,
ABNER W. SIBAL 
General Counsel
JOSEPH T. EDDINS 
Associate General Counsel
CHARLES L. REISCHEL 
Assistant General Counsel

Attorney
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 E Street, N. W. 
Washington, D. C. 20506

September 20, 1976



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing 
brief amicus curiae have been mailed this day to the 
following counsel of record:

Ms. Pamela D. Walker 
Youngdahl, Larrison & Agee 
P. 0. Box 6030
Little Rock, Arkansas 72206 
Mr. Leroy Autrey
Autrey, Weisenberger, Lingo & Johnson 
P. 0. Box 960 
501 East Sixth Street 
Texarkana, Arkansas 75501

Attorney
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 E Street, N. W. 
Washington, D. C. 20506

September 20, 1976