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EEOC Limits Its Power to Bring “Pattern and Practice” Charges

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Under Section 707 of Title VII of the 1964 Civil Rights Act (“Title VII”), the U.S. Equal Employment Opportunity Commission (“EEOC” or “the Commission”) has the authority to bring a suit when “a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by” Sections 703 and 704 of Title VII, which prohibit discrimination and retaliation. The Commission for many years has used Section 707 to bring pattern and practice, or systemic discrimination, suits against employers without any charge of discrimination having been filed against the employer. On September 3, 2020, the Commission issued an opinion letter in which it reversed interpretations it had previously used to bring such suits against employers.

In its opinion letter, the Commission addressed two questions: 1) does a pattern or practice claim under Section 707(a) require allegations of alleged discrimination or retaliation; and 2) does a claim under Section 707 require the normal pre-suit requirements be satisfied before the EEOC can file suit? The Commission determined that the answer to both questions is yes.

In reaching the conclusion that Section 707(a) does not provide a freestanding violation of Title VII, the EEOC reached the same conclusion as the Seventh Circuit Court of Appeals in its 2015 opinion, EEOC v. CVS, 809 F.3d 335, wherein the EEOC had brought suit against CVS regarding severance agreements that the Commission thought could deter employees being separated from filing charges of discrimination. In siding with the rationale of the Seventh Circuit, the Commission stated that, “Based on the relevant statutory language and the caselaw, Section 707(a)’s “pattern or practice of resistance” does not create an independent basis for a lawsuit untethered to other violations of Title VII. Instead, any suit that the Commission brings pursuant to Section 707(a) must be based on an alleged pattern or practice of conduct that violates either Section 703 or Section 704.”

In addressing the second question, the EEOC stated in its opinion letter that claims under Section 707 are subject to Section 706’s pre-suit requirements, which means that before the EEOC can bring a pattern and practice suit, a charge of discrimination must have been filed and the Commission must have attempted to conciliate the claim before filing any suit.

While the lone Democratic member of the Commission criticized the opinion letter, it is being viewed by business groups as helping employers and keeping the EEOC from unilaterally bringing actions to challenge otherwise lawful and legitimate employment practices.

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