Legal Alert

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

by the Labor and Employment Group
September 11, 2020


The U.S. Equal Employment Opportunity Commission (EEOC) issued a new opinion letter providing a more limited interpretation of its authority to bring pattern or practice cases against employers than it did in some prior lawsuits.

The Upshot

  • The EEOC now interprets Title VII of the Civil Rights Act of 1964 as not permitting stand-alone pattern and practice claims.
  • The agency will now only bring pattern or practice cases against employers when the alleged conduct would separately constitute unlawful discrimination, harassment, or retaliation under the Act.
  • The EEOC also acknowledges that certain procedural requirements, including the filing of a charge and efforts to conciliate the claim(s), must be satisfied before the EEOC can file a pattern or practice action in court.

The Bottom Line

The EEOC recognizes that it may file a pattern or practice action against an employer only for discriminatory or retaliatory employment practices that are otherwise prohibited by Title VII. The agency also acknowledges that filing a charge and attempting to engage in conciliation efforts are necessary prerequisites for the agency to file a pattern or practice lawsuit in court. For employers, this interpretation marks a welcome departure from positions that the EEOC has taken in certain federal lawsuits over the past several years.


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.

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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