The only remarks in the Congressional debate which might tend to show that Congress intended the EEOC to comply with the provisions of Rule 23 are those of Senator Javits in arguing against the amendment which would have limited the EEOC's power.15 He indicated that the EEOC has broad authority to sue on behalf of a group of claimants under § 706 just as the Department of Justice had done in "pattern and practice suits". With specific reference to Rule 23 he noted that this Rule, "entitled Class Actions", gives "the opportunity to engage in the Federal Court in class actions by properly suing parties". He continued: "We ourselves have given permission to the EEOC to be a properly suing party."

While Senator Javits' remarks might be interpreted to signify the necessity of complying with Rule 23, they may also be interpreted to show the breadth of suit which the EEOC would be entitled to bring, rather than indicating that the EEOC would be subject to the procedural requirements of the Rule in bringing a class action.16 In fact, his concluding remarks quite clearly suggest that Senator Javits was simply stating that Congress itself had made the determination of the propriety of a class action which a court must make under Rule 23. We are not persuaded that Senator Javits' remarks manifest a Congressional intent that an action by the EEOC requires a compliance with Rule 23.

This court has held that the EEOC is a public agency "charged with the vindication of public policy, not merely with the enforcement of private rights". EEOC v. Occidental Life Insurance Co., of California, 535 F.2d 533, 542 (9 Cir. 1976) Aff'd 432 U.S. 355, 97 S. Ct. 2447, 53 L. Ed. 2d 402 (1977). In Occidental the court was concerned, Inter alia, with the application of a state statute of limitations in an EEOC suit under § 706. We recognized the well established rule that "in a Private civil rights action", where Congress has not provided a statute of limitations, the state statute applicable to similar litigation will be applied; but we concluded that the EEOC in seeking injunctive relief, as well as back pay, "promotes Public policy and seeks to vindicate rights belonging to the United States as sovereign". Id. at 537.17 We held further that the fact that private parties may benefit from the public "action does not detract from the public nature of (the) proceedings", Id. at 539, and that "(the) enforcement by the EEOC of the objectives of Title VII should not be frustrated because a private charging party may not have had 'standing' to make a particular claim". Id. at 542.18 Other courts have also recognized that the standing of the EEOC to sue in a § 706 action is not controlled or determined by the standing of the charging party to sue. See, E. g., EEOC v. General Electric Co., 532 F.2d 359, 373 (4 Cir. 1976).

In concluding that the EEOC was required to comply with Rule 23 in a § 706 action, the court in EEOC v. D. H. Holmes Co., Ltd., 556 F.2d at 794,19 said in part:

(Section 706) gives EEOC standing to sue under Title VII to the same extent as individuals aggrieved by discrimination in employment. Logically it follows, then, that when EEOC brings a class action suit under § 706, 42 U.S.C. 2000e-5(f)(1) (as an individual aggrieved may do), it does so subject to Rule 23 just as the private litigant in whose place it stands.

In other words, the court in Holmes did not recognize the distinction between a private class action by aggrieved individuals and an action by the EEOC "seeking vindication of public rights", which this court under different circumstances clearly recognized in Occidental. 535 F.2d at 542 n. 17.

Under the present statute, the EEOC may bring civil actions against private employers under § 706, 42 U.S.C. § 2000e-5, or a pattern or practice suit under § 707, 42 U.S.C. § 2000e-6.20 The Attorney General may bring an action under either section against a public employer.21 Civil actions based on individual complaints may still be brought by the aggrieved party under § 706.

The report of the magistrate adopted by the district court noted that the Attorney General had not been required to comply with Rule 23 in a pattern and practice suit under § 707 and that there is nothing in the statute or legislative history to suggest a different requirement for the EEOC in a § 706 suit. Likewise the court concluded that it would be illogical to apply a different rule with respect to § 706 actions "in view of the seemingly identical nature of the two sections". Appellants argue (1) that compliance with Rule 23 was not addressed in any of the § 707 suits by the Attorney General, and (2) that a distinction continues to exist between § 706 and § 707 actions, since " § 706 is concerned with rectifying individual cases of discrimination".22 As Senator Williams stated, however, in the Senate debate, (n. 14, supra) there "will be no difference between the cases that the Attorney General can bring under section 707 . . . and those which the Commission will be able to bring" under its enforcement powers pursuant to § 706. An action by the EEOC under each section seeks to vindicate public rights.

The Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977)23 discusses similarities and distinctions between § 706 and § 707 actions. The key distinctions are in the burden and nature of proof required. The Court there compared an individual's § 706 action with the Government's § 707 pattern and practice action. Referring to Franks v. Bowman, 424 U.S. 747, 772, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976), a § 706 action brought by individuals, the Court noted that the plaintiffs in Franks by "Demonstrating the existence " of a discriminatory pattern and practice "had made out a prima facie case of discrimination against the individual class members", and that the burden then shifted to the employer to prove that individuals were not in fact victims of previous discrimination. 431 U.S. at 359, 97 S.Ct. at 1866.

When the Government, as in Teamsters v. United States, alleges a " systemwide pattern or practice of resistance to the full enjoyment of Title VII rights", the Government must "prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts". It must establish by a Preponderance of the evidence that the discrimination was the "Company's standard operating procedure the regular rather than the unusual practice". 431 U.S. at 336, 97 S.Ct. at 1855.24 (Emphasis added) With respect to seeking individual relief the Court said in part:

When the Government seeks individual relief for the victims of discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief . . . As was true of the particular facts in Franks, and as typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. . . . The Government need only show that an alleged individual discriminatee . . . was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. . . . (T)herefore, every (class member) will be presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant . . . was not based on its policy of discrimination. Id. at 361-362, 97 S.Ct. at 1867-1868.

As noted Supra, it is clear from the legislative history of the 1972 Amendments that Congress preferred an EEOC action to a private action under § 706, expressing the hope that in the future the private lawsuit would be the exception and not the rule. (See n. 10) The advantage of a § 706 class action brought by the EEOC is that it brings before the court the full range of an employer's employment practices which unlawfully discriminate against a class, not piecemeal adjudication of individual claims, and allows the court to consider a variety of factors in formulating the appropriate remedy. The class action device allows the court to see the full implication of recognizing rights or remedies and allows it to determine what outcome would best serve the policies underlying the cause of action. Developments Class Actions, 89 Harv.L.R. 1318, 1353 (1976).

The Supreme Court in Teamsters v. United States, supra, recognizes the necessity of applying basic principles of equity in formulating remedies in Title VII cases, saying in part:

In devising and implementing remedies under Title VII, no less than in formulating any equitable decree, a court must draw on the "qualities of mercy and practicality (that) have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." (citations omitted) Especially when immediate implementation of an equitable remedy threatens to impinge upon the expectations of innocent parties, the courts must "look to the practical realities and necessities inescapably involved in reconciling competing interests", in order to determine the "special blend of what is necessary, what is fair, and what is workable". (citation omitted) 431 U.S. at 375, 97 S.Ct. at 1874-1875.

The Court lists a number of relevant factors which a trial court should consider in establishing its equitable order, including the number of identifiable victims, consequent extent of necessary relief, number of non-victim employees, the viable alternatives, and the economic circumstances of the industry. Id. at 376 and 376 n. 62, 97 S. Ct. 1843.

While there may be differences in the nature and burden of proof in EEOC actions under § 706 and pattern and practice suits under § 707, an action under either section seeks to vindicate public policy. Likewise individual relief may be granted under either action for victims of discriminatory practices. We see no reason why a distinction should be drawn between § 706 and § 707 actions with respect to the applicability of Rule 23.

It is clear that a compliance with Rule 23 is not expressly mandated by either the Rule itself or the 1972 Amendments authorizing the EEOC to bring a civil suit under § 706. Congress has made the determination that the EEOC is a "properly suing party" and an adequate representative of victims of employment discrimination. The Rule 23(a) certification requirement has been satisfied.

In our opinion the other procedures of Rule 23 applicable to a private litigant in a § 706 class action are available to the courts in an EEOC action under the broad equitable powers vested in the courts in § 706(g), 42 U.S.C. § 2000e-5(g),25 and recognized in Teamsters v. United States,supra, and other cases. (See discussion under Equitable Powers, Infra ).

If the private litigant satisfies the prerequisites of Rule 23(a), the Court then must determine whether the suit is maintainable as a class action under one of the subsections of Rule 23(b). Section 706 suits are generally found to be maintainable under Rule 23(b)(2).26 See Developments Class Actions, 89 Harv.L.R. at 1349. In fact, a civil rights action where a party is charged with discriminating unlawfully against a class is used as an illustration of a Rule 23(b)(2) class action in the Advisory Committee's Notes to the Proposed Rules of Civil Procedure, 39 F.R.D. 69, 102 (1966).27 Even if the suit contains a request for back pay the case continues to be properly certifiable under Rule 23(b)(2). Franks v. Bowman Transportation Co., supra, 424 U.S. at 751, 755, 96 S. Ct. 1251; Elliott v. Weinberger, 564 F.2d 1219, 1228 (9 Cir. 1977), cert. granted 439 U.S. 816, 99 S. Ct. 75, 58 L. Ed. 2d 106 (1978); Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 251 (3 Cir. 1975), Cert. denied, 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975).

Rule 23(c) directs certain procedural protections in a class action depending upon the Rule 23(b) subsection under which the court certifies the action. When an action is certified under Rule 23(b)(2), as § 706 class actions by private litigants generally are, absent class members are not required to receive notice or to have the opportunity to opt-out of the suit. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 n. 14, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974); Souza v. Scalone, 563 F.2d 385, 386 (9 Cir. 1977); Elliott v. Weinberger, 564 F.2d at 1228-29; Wetzel v. Liberty Mutual Insurance Co., 509 F.2d at 248-49, 256.28 Due process requires only that the class members be adequately represented. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 691, 81 S. Ct. 1309, 6 L. Ed. 2d 604; Hansberry v. Lee,311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940); Gonzales v. Cassidy, 474 F.2d 67, 74 (5 Cir. 1973). The trial court may in its discretion in a class action certified under Rule 23(b) (2) direct that notice be given under Rule 23(d). Souza v. Scalone, 563 F.2d at 386; Elliott v. Weinberger, 564 F.2d at 1229.

Similar procedural safeguards are available in a class action brought by the EEOC even though it is not certified under Rule 23. The trial court need not require notice or allow absent members to opt-out when the EEOC sues, just as it is not required to do so under Rule 23 when a private litigant is the class representative. But the equitable powers of the trial court under Rule 23(d), which apply when a private litigant is the class representative, may be exercised under § 706(g) and the broad equitable powers recognized in Title VII actions.

By avoiding the Rule 23(a) certification decision, a step to which the private § 706 class representative is subject, the inevitable challenge to the EEOC as a class representative is avoided. The certification process would be time consuming and costly, and would serve no useful purpose in the final disposition of the case.29

Broad equitable powers are vested in the federal courts under § 706(g), 42 U.S.C. § 2000e-5(g) of the Act. The courts are empowered to fashion such relief as the particular circumstances of the case may require. Franks v. Bowman Transportation Co., supra, 424 U.S. at 764, 96 S. Ct. 1251. Congress armed the courts with full equitable powers in Title VII cases. It is the historic purpose of equity to secure complete justice. The courts will be alert to adjust their remedies so as to grant the necessary relief. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). The courts "must 'look to the practical realities . . . involved in reconciling competing interests' " in determining the "special blend of what is necessary, what is fair, and what is workable". Teamsters v. United States,supra, 431 U.S. at 375, 97 S.Ct. at 1875.

General Telephone is concerned that it may be subjected to subsequent suits on the same issues, possible double payment of damage awards, and inconsistent judicial decisions if the EEOC is not required to qualify as a class representative when it brings this type of action. The EEOC suggests that a district court might properly exercise its discretion to order the issuance of an appropriate notice which informs the charging party and members of the class of the pendency of the Commission's action and their statutory right to intervene. Alternatively, the EEOC suggests that the district court may condition receipt of relief on the waiver of an individual's personal right of action.

We agree with the EEOC that courts may fashion appropriate orders to insure that defendants are not subjected to double payment or unnecessarily duplicative litigation. Under their broad equitable powers the courts may prescribe procedures and remedies which are fair and equitable to all parties.

We affirm the order of the district court denying General Telephone's motion to dismiss the class action aspects of this suit.