EEOC Opinion Letter Limits Agency’s ‘Pattern or Practice’ Litigation

FULL ALERT

On September 3, 2020, the U.S. Equal Employment Opportunity Commission (EEOC or the Commission) issued an opinion letter regarding its authority to bring “pattern or practice” actions against employers under section 707 of Title VII of the Civil Rights Act of 1964. The letter addresses two questions: (1) Does a pattern or practice claim under section 707(a) require allegations of underlying violations of section 703 (discrimination, including harassment) or section 704 (retaliation); and (2) Must the pre-suit requirements of section 706 be satisfied before the EEOC can file a 707 action? The answer to both questions, according to the EEOC, is “yes.” This more limited view of the EEOC’s enforcement powers is a notable departure from controversial positions the EEOC has taken on these issues in several prior lawsuits. 

The first question in the opinion letter focuses on the meaning of section 707(a), which permits the Commission to bring 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” Title VII. In light of the statutory text and relevant case law, the EEOC concluded that this “pattern or practice of resistance” language does not allow the Commission to file suit against employers for employment practices it merely dislikes but which do not otherwise violate “rights secured by” Title VII. Rather, a pattern or practice is only actionable when the alleged conduct constitutes discrimination or retaliation as defined in section 703 and section 704 of Title VII. This interpretation of section 707(a) as not providing an independent basis for Title VII liability is consistent with the view of the Seventh Circuit Court of Appeals, which previously rejected a contrary argument by the EEOC as being a novel and expansive interpretation of the Commission’s powers under section 707(a).

When addressing the second question in the opinion letter, the EEOC concluded that the pre-suit procedural requirements of section 706 apply to pattern or practice cases. Accordingly, the Commission may not bring a pattern or practice action against an employer unless the following procedural steps have occurred: a charge of discrimination has been filed “by or on behalf of a person claiming to be aggrieved or by a member of the Commission; a reasonable cause finding has issued; and the EEOC has attempted to conciliate the claim before filing suit.

Because the opinion letter has been formally approved by a vote of the Commission, employers that act “in good faith, in conformity with, and in reliance on” the matters addressed in the opinion letter may invoke the letter as an affirmative defense in any action or proceeding alleging unlawful employment practices.  This affirmative defense will bar liability for such acts even if the EEOC subsequently modifies or rescinds the opinion letter or a judicial authority determines it is invalid or of no legal effect.

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