Why, in a nation thought pervasively committed to “adversarial legalism,” did mass litigation and, in particular, the class action lawsuit not emerge as significant regulatory tools until at least the 1970s? Standard answers point to New Deal faith in bureaucracy or to an Advisory Committee that was not moved to amend Rule 23 of the Federal Rules of Civil Procedure until mounting docket pressures and the desegregation cases of the 1950s and 1960s forced its hand. This Article challenges these accounts by framing the modern class action’s emergence as part of a broader midcentury battle over how to conceptualize collective rights within the emerging New Deal state. Using the untapped archival records of a remarkable lawsuit brought by twenty-nine female factory workers against General Motors in 1938 claiming unequal pay and the heated state- and federal-level legislative campaigns to enact pay equity laws it spurred, this Article presents novel evidence that labor unions killed the earliest efforts to build U.S. antidiscrimination law around the class action. Working against dozens of bills providing for class action authority, damages multipliers, and attorneys’ fees, unions instead pushed the new pay equity laws into an anemic administrative system of regulation because they saw class actions as an existential threat to the New Deal system of labor relations built around collective bargaining.
Recovering this history yields two sets of insights. First, it allows us to imagine alternative pathways in the United States’s continuing struggle to combat workplace discrimination. Indeed, a more potent regulatory response to gender discrimination built around class actions of the modern sort could have fundamentally altered the U.S. industrial order and women’s place in it. Second, the early history of the pay equity movement offers an especially clear example of how the tensions between a labor-driven vision of collective rights and one built around adversarial, aggregated litigation of workplace disputes have shaped the evolution of the U.S. regulatory state. That history remains highly relevant today as the U.S. Supreme Court, in a trio of cases asking whether the National Labor Relations Act bars class action waivers in arbitration agreements, must once more reconcile U.S. labor law and the class suit.