Enforcement of federal antidiscrimination law has long been marked by compromise. By statutory design in Title VII of the Civil Rights Act of 1964, Congress limited the authority of the federal Equal Employment Opportunity Commission (EEOC) and placed much of the responsibility for the enforcement of antidiscrimination protections on individual employees through a private right of action. Employment law scholars have criticized the EEOC’s relative powerlessness and proposed ways to expand the public enforcement role. At the same time, political scientists and administrative law scholars have highlighted the importance of private enforcement mechanisms to insulate public agencies from political manipulation and prevent regulatory capture. While neither half of the enforcement equation may have sufficed on its own, a combination of public agency stewardship with robust private litigation has served to ensure a basic level of antidiscrimination enforcement and to advance development of the law.
This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the antidiscrimination mandate of Title VII may be facing a crisis point. The Article combines social scientific studies on the operation of bias and data on EEOC capacity during the recession, with analysis of several key U.S. Supreme Court decisions narrowing plaintiffs’ rights during the same time period. Between 2007 and 2013, when demand on the EEOC was exacerbated by the economic slowdown, the Court issued a series of procedural decisions that limited the ability of private individuals to sue to enforce Title VII: intensifying pleading standards for plaintiffs, strengthening the mandatory nature of arbitration agreements, and interpreting the rules of class certification narrowly. As a public agency, the EEOC remains mostly free from the constraints of this case law in its own enforcement litigation. Yet given limited authority and funding, the EEOC cannot, alone, take full advantage of its unique procedural position.
The Article then theorizes a new model for combining public and private enforcement efforts to leverage the relative strengths of each and push back on recent constraints. Legal scholars have written about both a purely private attorney general model and a purely public agency model of Title VII enforcement, offering useful suggestions for improving enforcement efforts, but which require significant funding or legislative change. Instead, this Article proposes an alternative: a public-private enforcement partnership of sorts between private plaintiffs’ attorneys and the EEOC that makes more robust use of administrative procedures under existing law. Combining the efforts of public and private enforcers may require new compromises from each, but offers the promise of both a strategic response to recent economic and legal constraints on antidiscrimination enforcement and a more perfect realization of Congress’ original enforcement vision.
Stephanie Bornstein is Assistant Professor of Law at the University of Florida Levin College of Law.
