The EEOC Scales Back its Own Enforcement Powers through Clarification of its Interpretation of Pattern or Practice Case Requirements
While most EEOC enforcement actions are related to individual complaints of discrimination and/or retaliation, so-called “pattern or practice” matters are those in which the EEOC attempts to show that an employer has systematically engaged in discriminatory activities. The Equal Employment Opportunity states on its website, “Systemic discrimination involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.” To combat systemic discrimination, section 707(a) of Title VII of the Civil Rights Act of 1964 authorizes the EEOC to sue employers engaged in a pattern or practice of discrimination.
In the past, the EEOC has interpreted section 707(a) to mean that no underlying charge of discrimination or retaliation under sections 703 or 704 was required for the EEOC to bring a pattern or practice suit, and that the EEOC could bring a “stand-alone” pattern or practice suit. The EEOC has also previously reasoned that claims under section 707(a) are not subject to section 706’s pre-suit requirements that: an underlying charge must exist; a reasonable cause finding must have been made by the EEOC; and the parties must have attempted to conciliate the dispute. Such an interpretation removed barriers from the EEOC’s ability to bring pattern or practice lawsuits.
However, on September 3, 2020, the EEOC – interpreting the plain language of the statute and prior rulings by the U.S. Supreme Court and the Seventh Circuit – issued an opinion letter clarifying that section 707(a) does not provide a freestanding violation of Title VII, and that claims under section 707(a) are subject to section 706’s pre-suit requirements.
Regarding whether section 707 provides a freestanding violation of Title VII, the EEOC agreed with two prior Seventh Circuit opinions that, as one opinion stated, “Section 707(a) does not create a broad enforcement power for the EEOC to pursue non-discriminatory employment practices that it dislikes – it simply allows the EEOC to pursue multiple violations of Title VII (i.e., unlawful employment practices involving discrimination or retaliation defined in sections 703 and 704) in one consolidated proceeding.” EEOC v. CVS, 809 F.3d 335, 341 (7th Cir. 2015).
The EEOC also reasoned that the provisions of sections 707(c), (d) and (e) “indicate that […] the Commission was required to follow the procedural requirements of section 706 (such as, a charge, reasonable cause finding, and an attempt to conciliate the dispute) that applied to all other suits that the EEOC sought to bring under Title VII. To find that section 706 procedures to not apply to actions under sections 707 would have the effect of reading 707(e) ‘out of the statute.’” September 3, 2020 Commission Opinion Letter at 3-4; quoting CVS, 809 F.3d at 340.
As the EEOC now recognizes that it must follow more stringent procedural requirements to bring pattern or practice suits under section 707 of Title VII, it will likely be diligent in following those procedures, which are technical in nature and will require defense counsel to monitor and ensure such compliance on behalf of employers.