COLLECTIVE COMPLAINT Open Access

We know something—a lot actually—about how complaint processes work in the discrimination context. Organizations and legal systems individualize complaints by demanding that complaints present portrayals of discrete, isolated, individualized relational moments calling for narrow relief (e.g, punishment of a “bad” actor)—and by generally treating them as such—rather than as multilayered, contextual accounts calling for broader structural assessment and change. This process is prevalent across institutions, from workplaces to prisons to schools, and it is driven and backed up in various ways by law.⁶ This part briefly unpacks the ways that individualizing of complaint in the employment discrimination context both isolates complainants from others and atomizes complainants’ stories, picking them apart into micro-relational encounters with limited capacity to generate meaningful change.

It is worth noting that the emphasis on complaint in employment discrimination law both rests on individualized notions of discrimination and serves as a tool of individualizing. Title VII of the Civil Rights Act⁷ has always required a filing of a “charge” of discrimination with the Equal Employment Opportunity Commission (EEOC) before a private individual can proceed with a claim in court.⁸ The idea was that complaints would be subject to inquiry by the administrative body and possibly resolved through EEOC conciliation without need for a lawsuit. There is nothing inherently individualizing about this. But as Lauren Edelman’s work on the endogeneity of law and organizations demonstrates, in the 1980s, as sexual harassment was emerging as an antidiscrimination concern, complaint (or “grievance”) systems within work organizations proliferated.⁹ By 1998, when the Supreme Court set up a new Title VII legal regime under which providing an internal system of complaint became a legally sanctioned method of avoiding liability in at least some cases,¹⁰ over ninety percent of medium and large firms had adopted harassment grievance procedures and seventy percent had adopted similar procedures for all complaints of discrimination.¹¹ This move built on individualized stories about what discrimination is and especially about organizations’ role in it.¹²

There are numerous problems with the law of complaint and how it operates within work organizations and beyond.¹³ Retaliation, for example, is pervasive and not well addressed by law; retaliation both punishes those who complain and has a chilling effect on would-be complainants.¹⁴ Individualizing is another problem, a problem that impedes structural change (the kind of change that research suggests we most need) by reducing the likelihood that organizational actors will see discrimination at all and by channeling solutions toward punishing individual “bad actors” if it is seen. Systemic theories in the employment discrimination context—specifically systemic disparate-treatment (pattern or practice) theory, which relies on statistics, among other evidence, to prove widespread discrimination within an organization,¹⁵ and disparate-impact theory, which challenges an employer’s use of a practice as having a disparate impact¹⁶—can facilitate a structural lens, but they have been limited by courts in various ways as part of the project of individualizing.¹⁷

In their book Rights on Trial, sociologists Ellen Berrey, Robert Nelson, and Laura Beth Nielsen present mixed-methods research that includes in-depth interviews with plaintiffs, internal human resources (HR) officers, and inside and outside counsel, all of whom were involved in investigating internally (within work organizations) and litigating externally (in courts) employment discrimination complaints.¹⁸ The authors find in these interviews a consistent push, especially from HR professionals and lawyers for employers, for an individualized frame, a narrowing of inquiry to specific micro-relations or decision moments involving discrete decision-makers with no effort to make connections to other complaints or institutional action more broadly. Indeed, a common thread is of defendant HR professionals seeking to reshape complainants’ understanding of discrimination so that, beyond its being individualized, the story also vindicates organizations. Complainants are described as being engaged in personality conflicts and ignorant or malicious and in need of education so that management will no longer be bothered by their complaints.¹⁹ The authors conclude that employment discrimination law “reinscribes hierarchies by challenging and containing discrimination claims.”²⁰

The complaints Berrey and colleagues studied were almost all brought by individuals, not by groups. One likely reason for this feature of their work is that internal processes at most institutions do not envision or in some cases even allow for group-generated complaints.²¹ Complainants and their complaints, in other words, are often isolated from each other within organizations by the system of complaint itself. That said, several of the plaintiffs they interviewed did report coworker support, and one case involved a plaintiff who had taken on a role of spokesperson for a group of employees complaining of unfair practices.²²

Calls for confidentiality in internal processes may also keep people from talking with each other and formulating group-based complaints.²³ Of course, there are often good reasons for keeping complaints confidential, but confidentiality concerns can be used to silence complainants, to keep them from talking to others who may have experienced or be interested in similar issues within the institution, or outside of it.²⁴ Nondisclosure agreements in settlements serve a similar function by keeping people from joining together or speaking about events or experiences underlying a settlement.²⁵

Complainants and their complaints are also increasingly isolated in the judicial system, where narrow views of discrimination have cabined class actions, the principal group-based avenue for seeking change in courts. In Wal-Mart v. Dukes, the plaintiffs alleged systemic theories of sex-based discrimination, both disparate treatment and disparate impact, not individualized claims.²⁶ They introduced evidence that women were paid substantially less than men and promoted less often despite equal qualifications and interest, as well as evidence that Wal-Mart had an overarching culture of bias against and stereotyping of women.²⁷ Yet the Court described the women’s claims as involving allegations solely of biased decisions by low-level managers with respect to each individual complainant and importantly said that to meet the commonality requirement for class certification, the plaintiffs would need to establish that they shared a single supervisor²⁸ or provide “significant proof” that the company “operated under a general policy of discrimination.”²⁹ The Court relied on Wal-Mart’s formal nondiscrimination policy in holding that no such evidence had been provided.³⁰ As a practical matter, Wal-Mart serves as a hurdle that keeps plaintiffs from suing together, forcing them away from each other into individual lawsuits.³¹

Judicial decisions involving arbitration clauses in employment contracts further limit the ability of individuals to come together to complain about discrimination and other workplace wrongs. The Supreme Court has held arbitration clauses preventing group-based actions in court and in arbitration enforceable.³² It has also found such agreements implied, even when the language of the agreement does not specifically address class treatment.³³

Some of the same sociolegal work that exposes isolating of complainants and their complaints also reveals atomizing of complaints. As I noted above, this atomizing primarily involves constraints on the stories that complainants tell about their experiences of discrimination, the sources of that discrimination, and possible solutions. Lauren Edelman surfaces a form of atomizing in her work on organizations and internal dispute-resolution processes. She describes the process of handling complaints about discrimination as one of “managerializing” complaints: complainants are expected to describe incidents between themselves and specific individuals, incidents that managers then explain away as nondiscrimination, merely managerial, or personnel (or personal) relational moments.³⁴ And even when discrimination is detected, individuals’ stories are often narrowed through the processes of complaint to individualized, relational solutions: punishing a specific person, moving someone away to another department, or asking for apology or some other “let’s talk” moment—and then moving on.³⁵

Courts, too, have atomized complaints structurally by limiting the legal theories that individuals can rely on and the relief that they can seek. Some courts, for example, have held that individuals cannot bring claims using systemic legal theories.³⁶ Others have insisted that only limited relief focusing closely on the individual, such as back pay or a targeted promotion, is available for individual plaintiffs, not relief that would require change in how the organization operates.³⁷

Other courts have used strict pleading requirements to prevent individuals (and groups) from using systemic theories. In two cases decided in the late 2000s, the Supreme Court held that dismissal on the pleadings is warranted unless plaintiffs assert allegations that are “plausible,”³⁸ which some courts have read to require that plaintiffs plead specifics of any discrimination and cite to evidence to back those pleadings up. This requirement becomes especially problematic in systemic discrimination cases, where discovery is often needed to access statistical data held by the employer.³⁹ For example, in one recent case, plaintiff Thomas Liu alleged that Uber’s practice of terminating driver contracts based on star ratings by customers had a disparate impact on non-white drivers. Liu cited to social science sources suggesting that racial bias is common in customer ratings generally and to Uber’s own stated earlier view that allowing tips through an app would discriminate against non-white drivers.⁴⁰ The district court dismissed Liu’s complaint on the ground that Liu needed to allege facts supported by statistical evidence showing a racial disparity in terminated contracts by Uber. Liu appealed to the Ninth Circuit Court of Appeals, where he and also the EEOC, as amicus, argued that it was error to require this statistical data and that it is sufficient at the pleading stage for a plaintiff to “point to real-world conditions suggesting that the practice will result in a disparity” or that an impact is “plausibly happening as a result of the confluence of real-world conditions and the challenged policy.”⁴¹

The complex law around filing requirements further pushes individuals to pinpoint specific, relational moments over more systemic sources of discrimination. Title VII requires that complainants file a “charge” of discrimination with the EEOC before filing a claim in court; in most states this must be done within 300 days after “the alleged unlawful employment practice occurred.”⁴² The official requirements for a charge are minimal—a charge is typically understood to be sufficient if it is in writing, names the alleged violator, and “generally allege[s] the discriminatory act[s]”—but the law of when a discriminatory act occurs emphasizes “discrete” acts of discrimination.⁴³ Some courts have held that even claimants who allege systemic discrimination must identify a “discrete” act of discrimination that occurred within the charge filing period and cannot obtain relief for acts that occurred outside the period.⁴⁴

Even beyond these structural constraints, courts regularly reframe complainants’ stories to emphasize specific individuals as exclusive causal sources of discrimination.⁴⁵ In Ledbetter v. Goodyear, for example, Lilly Ledbetter sued for pay discrimination under Title VII. She presented evidence of a number of sex-based incidents at Goodyear, including comments by a plant manager that the “plant did not need women, that [women] didn’t help it” and “caused problems” and statistical evidence reflecting a pay disparity between her own pay and male managers with comparable records as well as testimony by other women regarding their discriminatory treatment at Goodyear.⁴⁶ The Supreme Court majority opinion, in contrast, zeroed in on actions of a single supervisor of Ledbetter’s as the sole source of any discrimination.⁴⁷

Indeed, employers and their advocates have long sought to reframe plaintiffs’ systemic, pattern-or-practice claims as individualized ones, including through what is known as a “specific act requirement.”⁴⁸ This requirement was firmly rejected by the Supreme Court in two early cases, Teamsters and Hazelwood, but it has lived on.⁴⁹ It reemerged in the 1980s in argument that disparate-impact theory could not be used to challenge employers’ use of subjective decision-making practices.⁵⁰ This time, although the Supreme Court rejected the proposed limit on disparate-impact theory, it did so only as it simultaneously embraced the underlying line of thinking, which has continued on into other cases.⁵¹

Much of the literature and advocacy pushing back on problems associated with individualizing turns to the collective as solution, and this collective is often framed as group-based activity. On the one hand, this is neither surprising nor alarming. People working together have been and will continue to be important, even crucial, for major reform movements. But romanticizing collective as working together, portraying working together as without costs or as the exclusive means of making change, may end up hindering the antidiscrimination project as a whole by undermining those individuals who want or feel they have to seek change on their own.

Understanding collective as group-based activity has a long and solid history in the United States, especially although not exclusively in the area of employment. This is, after all, the collective of union activity, where union members organize and act in solidarity. And it is also the language used in some federal statutes protecting workers’ rights. When an individual brings a “collective action” under the Fair Labor Standards Act, for example, they trigger a notice and opt-in procedure, allowing other individuals to join in the group action.⁵² Class actions, too, are often understood as group-based in the sense that several named plaintiffs work actively together with lead attorneys to represent members of a broader class.⁵³

Indeed, when we think of “collective” actions, we tend to assume that the two aspects of the problem of individualizing—isolating and atomizing—always go hand in hand and that measures to bring people together solve both aspects of the problem. This makes sense because class actions and government actions, at least in the civil rights context, have historically asked for broader institutional reform.⁵⁴ When it comes to employment discrimination, claims brought as class actions and government actions have also often involved systemic theories; they have been cases asserting patterns or practices of discrimination, alleging that discrimination is “the regular rather than the unusual practice”⁵⁵ within an organization, or cases challenging employers’ use of specific practices as having a disparate impact on members of certain groups.

There is no question that collective as group activity has been of longstanding importance in advocating for change both in the United States and abroad.⁵⁶ Indeed, a view of collective as group activity has led to important scholarship and advocacy in the legal field aimed at reversing isolating so that individuals can come together to agitate for redress and change. Some of this recent advocacy, for example, has involved efforts to amend class action rules and to provide other collective action group-based possibilities.⁵⁷ Recent efforts also include combatting the use of nondisclosure agreements⁵⁸ and arbitration agreements, which isolate and stifle voices, and specifically combatting the Court’s arbitration decisions that allow employment agreements to squelch class action participation by employees entirely.⁵⁹

To say that it is understandable that group-based activity is often seen as intertwined with broader stories and change is not to say, however, that seeing it exclusively in that way is unproblematic. Just as one can overemphasize individual heroes in understanding historical movements for change, so too can one overemphasize group-based action. Indeed, there is a danger in championing collective as group-based activity, in suggesting that group-based activity is the best-course or exclusive option for seeking collective change.

Sara Ahmed’s recent book Complaint! is one example of what I see as putting collective as group-based activity on something of a pedestal.⁶⁰ Her book, which focuses on complaint in a university setting, is an invaluable resource, especially for thinking about complaints as relational, contextual efforts and as real-world experiences rather than simply as papers filed in judicial or other proceedings. What’s more, she perceptively and powerfully captures the many ways that complaints can be (and are) contained by institutions, what she calls “institutional mechanics.”⁶¹ I rely on her descriptions of experiences of complaint throughout this essay and will continue to return to her work as a resource in thinking about complaint.⁶² Nonetheless, Ahmed emphasizes the importance of working in groups (against isolating), while paying little attention to the importance of allowing individuals to tell broader stories (against atomizing). In an early passage in the book, for example, Ahmed describes a group of students who had tried to put forward to their university a “collective complaint” of harassment. She notes that the university insisted that the students “individually make formal written complaints.”⁶³ Ahmed highlights her concerns about forcing individuals to isolate from a group by explaining that the university was “asking them to give up their anonymity, to make themselves even more vulnerable than they had already made themselves.”⁶⁴ This point importantly shows how working in a group can be useful and protective for individuals, who might feel (and be) vulnerable on their own. But one might also be concerned about making space for the stories that would be told within those individualized complaints. Proceeding as a group may in this instance have allowed the women to more easily capture the institutional environment and structural causes of disadvantage and discrimination. By forcing the women to file individual complaints, the institution was depriving them of protection and also constraining the stories they were allowed to tell. And yet this latter is a point Ahmed does not make.

Ahmed comes back to collective as a powerful response to the many difficulties of complaint in the third part of the book. Although at times Ahmed here describes collective more broadly than group-based activity (as knowing that others are working on a similar cause, for example), she regularly returns to physical getting together and working together. She describes one woman of color who submitted a “collective complaint” within her institution, a complaint “about the impact of sexism and racism on the research culture of her department.”⁶⁵ Ahmed emphasizes, however, not the broader story that was told through this complaint but the working together that was done to build and sustain it.⁶⁶ She says: “To create a document that can be recognized as a complaint is laborious: it requires considerable time as well as effort. You need to combine your experiences but also render that combination legible in a form that is not your own. You need to communicate with each other, swinging back and forth.”⁶⁷ Even as she acknowledges the exhaustion of working together, she holds up the working together as a sustaining enterprise for all. She quotes a woman who worked in a “three-women collective”:

In addition to her own chapter on collective complaints and complaint collectives, Ahmed includes a co-authored chapter titled “Collective Conclusions.”⁷⁰ The authors of this chapter are some of the students who came to Ahmed having already formed their collective group; Ahmed became part of that group and cites its members as her inspiration for the project and the book. They explain in this chapter, “There is no single turning point which marked the shift from working alongside one another as peers and fellow students, toward friendship, toward collectivity.”⁷¹ They write, “Collectivity was a way to share the cost of complaint. Rather than each of us being on her own, we could stand together.”⁷² “[W]e gathered around each other. Care was always prioritized over complaint work.”⁷³ “[T]urning toward each other,” they “started having meetings,” “started writing together.”⁷⁴

It is easy to come away from Complaint! with a strong desire for group-based activity, with a feeling that having others to work with and not just for is essential to making change. To be clear, Ahmed is up front about why she is drawn to collective as group-based activity (the students’ collective complaint inspired her project, after all), and she does not always define collective so narrowly. Indeed, my concern is not with Ahmed’s personal attraction to group-based activity as response to the problems with institutional response to complaints, but rather with a lauding of collective as group-based activity that is woven together into our histories of social movements across fields, into our advocacies, and also into media and our own desires for social connection and support. This emphasis risks turning group-based activity from an option (often a wise option strategically) to something of a strong preference, even a requirement. And lauding collective as group-based activity (and not merely personally preferring it) may serve to limit our efforts and our efficacy in those efforts at change.

Collective as group activity is not itself problematic, but confining our understanding of collective complaint to group-based activity is. How so? In this section, I explore some of the reasons that overemphasizing collective complaint as group-based activity can hinder our (collective) efforts at meaningful change, both narratively in what it says about complainants and their complaints and practically in downplaying or ignoring the downsides to group complaint.

1. Narrative, Identity, and Epistemology: Undermining Individuals Who Seek to Make Collective Change—Too much emphasis on collective as group activity can affect how we see individuals who do not act within groups and also how we see their stories. The authors of the collective complaint in Ahmed’s Complaint!, for example, contrast their collective, group-based work with resisting “quietly, each of us on her own.”⁷⁵ In doing so, they present themselves as having little voice and little impact without the group to support them. They describe themselves before coming together as learning to “study alongside it, to quietly try to avoid the invasive reaches.”⁷⁶ They “withdrew.” Or they “participated,” but without effort to make substantial, if any, change. And they describe the origin of their collective—and implicit here their power and voice—“in this turning toward each other, in this gathering together not only with one another but for one another.”⁷⁷

Yet individuals regularly do complain on their own, whether by choice or by necessity, and these individuals sometimes seek to tell stories that capture broader environments and that demand change for those beyond themselves. The plaintiffs in many of the cases that led to the Supreme Court decisions on harassment and discrimination went it alone and sought to tell broad stories for change. Lilly Ledbetter, in her book Grace and Grit, describes her hope when she brought suit against Goodyear Tire that her case would mean that “the women working at Goodyear and other places would be safe from being harassed and underpaid.”⁷⁸ Clara Watson also sought to hold the bank at which she worked responsible for race-based hiring and promotion practices that applied to other Black employees as well as herself.⁷⁹ The list goes on.⁸⁰

Romanticizing group-based work leaves these complainants out in the cold and can also play into neoliberal narratives that undermine complainants. Individuals who seek institutional change often face derision when they do.⁸¹ As Ahmed so deftly captures, they are labeled “whiners” and characterized as people who are privileged, seeking advantage from their position, neoliberal, pushing for themselves alone rather than for others, and in that way fundamentally self-interested.⁸² They are described as seeking to bring someone down, sometimes an entire institution, to make space for themselves. They are troublemakers, not team players.

Indeed, there is an increasingly hostile overlay of suspicion around individuals bringing complaints and a corresponding push by the courts (and sometimes Congress) to limit what individual complainants can accomplish. In legal cases involving employment discrimination, plaintiffs are frequently characterized as bringing suit for “mere trifles,” and courts have built up legal doctrines to protect employers from liability for proven discrimination when the harm is perceived as not sufficiently material or severe.⁸³

Holding group work up as an idealistically favored if not essential mode of “collective” response risks undermining individuals in their efforts to act for change to institutional practices, norms, cultures, and structures rather than merely for their own individualized relief.⁸⁴ One way of thinking about this narrative downside of romanticizing collective as group-based activity is through the lens of epistemology.⁸⁵ We risk sending a message that individuals who experience discrimination are not credible when it comes to structural and system-wide sources of discrimination within work organizations, that they must be part of a group in order to be effective seers and advocates for change. In this context, people who experience discrimination and have concerns about structural sources of that discrimination are ignored when they do speak (“testimonial quieting”) and may self-censor so that their voices are never heard (“testimonial smothering”).⁸⁶

2. Practically: Missing Difficulties of Group-Based Complaint—What makes this undermining of individual efforts at collective change even more pernicious is that working within groups can be difficult. Just finding and talking with others can be time consuming. One student who submitted a complaint with others explained this to Ahmed:

The perceived threat to the institution may also heighten with a group, which may ratchet up derision and risk of being seen as a troublemaker.⁸⁸ For the same reasons that groups can wield more power, they can also be targeted as trying to take the institution down.

Joining in solidarity groups can also operate to temper voices and not always to energize and amplify them. Individuals in groups can talk each other out of complaining outside of the group just as they can embolden each other to file formal complaints. Sometimes this dynamic is subtle. Coming together and talking through complaints can be cathartic, so much so that promises to take action may wither over time. This possibility should not surprise us; group-based action has long been used as a method of tempering radical calls for change.⁸⁹

And race and other aspects of identity are also relevant in group activity. Working in groups can result in othering, just as members of some groups have historically been excluded from formal organizing.⁹⁰ Berrey and colleagues relay that many of the complainants with whom they spoke expressed disappointment about how little support they received from coworkers.⁹¹ Heroes may see themselves as outsiders (even as they identify collectively in their understanding of problems and solutions); indeed, they may be outsiders—oddballs, lone wolves, and misanthropes—making them more willing to disrupt systems and structures than those who see themselves as insiders, as part of a group within the institution.⁹² Moreover, research suggests that distancing (holding oneself away from others, being hesitant to trust) is more common than many might like to think.⁹³

What all this means is that individuals who are willing to agitate for change are crucial to the larger project of reimagining systems, cultures, and practices that discriminate, just as groups are. Individuals can present an alternative way of opening eyes to structural problems and solutions, and we make a mistake if we laud collective as group-based action to their detriment.

It is possible to imagine collective broadly. Merriam-Webster defines “collective” simply: “of, relating to, or being a group of individuals.”⁹⁴ In social psychology, collective action is defined as “action taken on behalf of a group or groups in order to influence their status, conditions, and/or identity.”⁹⁵ As these and other definitions suggest, seeing oneself within a broader institutional context, including as a member of a group, and seeking change that benefits others can be collective even if one is not actively working in or as a group.⁹⁶ I have described the #MeToo movement’s power as collective in the force of its shared experience (allowing women to see themselves in a group and others to see them that way as well) and in its calls for change, calls for dismantling systems, practices, and cultures that are sexist and that favor men over women and certain men and women over others.⁹⁷ Patricia Hill Collins, in her book Black Feminist Thought, deliberately includes within her understanding of collective those individuals who act from their experience within a group for the social justice of a group, even as their individual experiences of that collectivity may vary considerably.⁹⁸ And sociologists Joanne Martin and Debra Meyerson describe “individual acts of nonconformity” to masculinized behavioral norms as a collective of “disorganized coaction.”⁹⁹ These broader visions are not new or groundbreaking; my point is that collective is not limited to group-based activity—it never has been—even if it is sometimes portrayed as such. How we see ourselves, what we see as problematic, what we seek as change can be collective as much as individual; we need not be tied to stories that remove individuals from broader context.¹⁰⁰

With both aspects of individualizing—isolating and atomizing—in mind, collective as response might thereby be seen as a project of facilitating group-based activity and of supporting individuals in telling broader stories and seeking broader assessments and change. Some recent efforts aimed at the legal system to build and preserve capacity of individuals to bring suits enforcing statutory and public law rights can be understood in this latter vein. Myriam Gilles and Gary Friedman argue, for example, that the new qui tam, a trend across several states, pushes rightly in this direction.¹⁰¹ David Marcus’s work exploring group rights in institutional reform litigation is also aligned with efforts aimed at the atomizing aspect of individualizing, even as it also illustrates how and when class treatment is warranted.¹⁰² Thinking specifically about collective action as a response to atomizing in the law of complaint under Title VII, we might consider targeting many of the ways that law currently atomizes complaints through class and pleading requirements, enforcement of arbitration clauses, evidentiary rulings, and retelling of stories in judicial opinions.

Once we see atomizing as an independent aspect of the problem of individualizing, we may see fresh means of intervening in how stories are told and even in how situations are experienced or perceived. Seeing the problem of atomizing can open our minds to broader sources of discrimination as we go about our daily lives, and it can affect our reflections on these experiences, our conversations with others, and our complaints. In line with the sociolegal tradition of understanding law to operate both at the level of legal system—substantive law and enforcement systems—and also in on-the-ground perceptions and interactions, I highlight space where we know atomizing occurs and where collective response holds promise, but where that promise has yet gone largely untapped: in the relational telling of stories of discrimination within work organizations and the EEOC.

The EEOC holds substantial power in its interaction with complainants about their experiences of discrimination, from a complainant’s first moment with the intake process through to the formal filing of a charge with the agency that then triggers an agency investigation, and then through that investigation. One way to reduce atomizing would be for the EEOC to better signal at the intake/charge stage that discrimination in organizational policies and practices is included in the statutory prohibition of unlawful employment practices by employers under Title VII. Currently, the discrimination charge form asks only for a description of discrimination through prompting language: “The particulars are.”¹⁰³ The EEOC might amend this form to allow complainants to indicate concerns about systemic discrimination. A box to check after describing discrimination experienced would easily serve this signaling function: for example, “Do you have reason to believe that the discrimination that you experienced relates to systems, structures, practices, or cultures within your work organization, or otherwise is part of a pattern or practice of discrimination?”¹⁰⁴ And then allowing someone to elaborate if they desire.

This openness to more structural sources of discrimination (which could translate into systemic legal claims) should extend to the intake process more generally. For those who file complaints through the EEOC website, an initial “inquiry” currently involves a series of questions about the employer that leads complainants to think narrowly about acts of discrimination. The form asks:

Changes like these at the EEOC charge stage would provide the EEOC with more information about possible systemic discrimination (furthering the stated EEOC goal of focusing on systemic discrimination¹⁰⁶) at the same time that it reframes how people see themselves and their experiences of discrimination within work organizations. The openness could continue into the intake interview, where EEOC officers talk with a complainant about what they experienced and how and whether it amounts to discrimination in violation of the law.

Resistance to atomizing can also emerge well before a charge with the EEOC and can involve action both by individuals who complain and by those receiving complaints within organizations. Individuals, in short, might insist on broader stories, and human resources officers and others who work with people experiencing discrimination might undertake broader assessments and devise structural solutions, not just individualized ones. In thinking about this possibility, I urge imagining a law of complaint in practice that builds from complaint as collective (at least in some cases), a process of what is sometimes called “slow law” even with its upending-systems goals.¹⁰⁷ Prefigurative practices in this area may have substantial potential precisely because the law itself remains ambiguous and ultimately endogenous, as law and organization scholars have long pointed out.¹⁰⁸

Prefigurative practices are understood as efforts at social change through reimagining practices in people’s lives rather than through transforming law and other institutions through legislation, litigation, or electoral politics. Prefigurative practices reorder and open possibilities through the act of experiencing “as if.”¹⁰⁹ Often the state is described as outside the movement rather than as the target of the movement. Recent work, however, notes that some actors practicing prefiguration today are “using legally-inflected tools” to enact their own desired understanding of legality.¹¹⁰ Legal scholars and sociologists Amy Cohen and Bronwen Morgan offer the term “prefigurative legality” to describe what they call “efforts to use the language, form, and legitimacy of law to imagine law otherwise—and through various kinds of direct actions rather than primarily through appeals to courts, legislators, or other state officials.”¹¹¹

It is worth pausing to acknowledge that much of the early theorizing about prefigurative practices envisions people working together, much as collective has been envisioned in response to the individualizing of the law of complaint. The term “prefiguration” is often attributed to Carl Boggs, who in his work in the late 1970s drew on structural reformism to argue against instrumental rationality and hierarchical forms of authority.¹¹² He described “local, collective small-scale organs of socialist democracy (e.g., workers’ councils, soviets, action committees, neighborhood associations) that can give expression to the spontaneous and total energy of popular struggles.”¹¹³ And prefiguration continues today to be featured in collective organizing activity as an example of horizontally facilitated, grassroots social action.¹¹⁴

But the idea of prefigurative practices is not limited to group-based activity. Cohen and Morgan reflect on PARK(ing) Day, a practice of people taking over parking spaces for a variety of public offerings and uses, as prefigurative practice that involves reimagining property relationships without requiring group-based activity.¹¹⁵ In their review of Amelia Thorpe’s book on PARK(ing) Day, they explain: “Thorpe argues, when people come together on the street even without ‘a clear or unified message,’ they advance a collective claim about ‘the kinds of activities for which the street should be used, and the kinds of processes through which these should be decided.’”¹¹⁶ The actions and goals of those participating are collective, even as the individuals act on their own.¹¹⁷

What would prefigurative practices of this sort look like in the context of complaint? A complaint of discrimination is understood as a legal process, albeit one that is often today experienced most powerfully within the work organization itself through grievance procedures. The law does not require people to complain within their work organization before filing an administrative charge, and yet this is a space where prefigurative work may be most effective because it is the place where stories are often first aired and therefore first meet the pressure of atomizing. One prefigurative practice might involve people insisting on telling bigger stories in this moment. Complainant employees who supect they are experiencing sex-based discrimination at work, for example, might probe for ways the organization keeps women down, demanding structural and cultural change within the organization and beyond rather than (or in addition to, depending on the circumstances) calling for punishment of specific individuals. Insisting that one is “complaining” every time they seek structural or even cultural solutions, in other words, “plays” with the idea of complaint in a way that can affect how complaint is understood.¹¹⁸ It can serve, as one commentator recently put it, as “counter-design” to existing systems.¹¹⁹

Insisting on broader stories might also push against use of confidentiality as an institutional means of cabining complaint. By framing complaints more broadly to involve organizational influences and assessments, and by strategizing for change at the level of the organization, complainants can insist on more open conversation about the problems they see, seeking not punishment of one or several but change in how things are done at the institution.¹²⁰ They can call for more public conversations about structural problems, leaving individual actors and their identities to the margins. What is often framed as a micro-relational, “personal” problem in this way becomes an institutional one for which confidentiality concerns are less legitimate.

Prefigurative practices, like complaint, are relational and should therefore also involve people who are understood to be taking in and “resolving” complaints in addition to the complainants themselves. People who go into the field of anti-racism and diversity, equity, and inclusion often profess they do so to make change, to help institutions see problems and reorient themselves toward better practices, and research suggests that “compliance professionals” generally have some influence in how the law is interpreted and experienced within organizations, ultimately with influence on court decisions as well.¹²¹ A vision of their own action as problem solving at the institutional level would help them resist their own disempowerment through individualizing. Complaints need not be seen as a sign of failure in doing their job but as an opportunity for ongoing efforts to improve, to consider what the organization can do better to further equality and nondiscrimination and to take meaningful action to that end.

We could also think about physical (including virtual) spaces of complaint. Where does complaint occur and why does it occur in that space? Building spaces where people might tell broader stories could facilitate the kinds of group-based activity that are key to social movements, especially linking across not just identities but mechanisms of injustice.¹²² Indeed, building power for individuals to envision and agitate for structural change is consistent with views that challenge monolithic notions of groups.¹²³ The project for the individual in this view is to challenge systemic sources of inequality, not to imagine the individual as occupying the same footprint as other members of a group.

Of course, isolating and atomizing are deeply interrelated, and class actions require individuals to act as class representatives. Targeting atomizing can come full circle to enable more individuals to consider undertaking work involving systemic discrimination as well as work aimed at upending subordinating systems and practices beyond discrimination. Berrey and colleagues tell a story of one plaintiff in their study who served as class representative in a case against a large retail chain. Upon hearing of a discrimination lawsuit concerning the store’s trucking unit, she contacted the lawyer to pass along her own experience when she asked about a trucking job (and was told that she could “become a Chain Stores driver when [she] learn[ed] how to use a men’s urinal”); she suggested they look into the retail arm of Chain Stores as well.¹²⁴ And targeting atomizing can also empower individuals to decide to organize and work together in groups. The idea is not to discourage group-based activity but to normalize even individual efforts at collective, structural change, which may in turn create greater solidarity across efforts.

I, too, am captivated by histories revealing people “gathering” together to make change.¹²⁵ A critique of overemphasizing collective as group-based activity should not distract us from seeking to work together in complaint, just as it should not distract us from the important work of coalition building and group-based activity more generally.¹²⁶ But we undermine our efforts at change if we turn to gathering to the detriment of other forms of collective agitation for change.

To support individuals in their efforts toward collective change is not to buy into an individualistic view of the world; we can be “social” in our goals, in solidarity, without necessarily being social in the ways in which we generate and carry through with complaint.¹²⁷ To support and encourage individuals to tell their broader stories embraces a view of individuals as relationally situated and necessarily acting within social context.¹²⁸ And it expands the field of change agents, allows more people the space and support to “act out democracy,” as Lani Guinier and Gerald Torres might put it.¹²⁹ We can and should envision new (collective) avenues for the structural change that we most need.