The EEOC has limited its own authority to file “pattern or practice” lawsuits

The EEOC has formally acknowledged its own limitations on its authority to bring a “pattern or practice” lawsuit against an employer. When the EEOC brings such a lawsuit, it is not acting in a representative capacity on behalf of any particular employees (as it does in a so-called sec. 706 claim, citing Title VII’s relevant section), rather it is suing (under sec. 707) as the government itself asserting the employer has a pattern-or-practice of discrimination, which according to the Supreme Court requires it, in short, to prove that the employer’s “standard operating procedure” is to discriminate, quoting Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977). Previously the EEOC has argued that, when it sues under sec. 707 it does not have to comply with a number of pre-lawsuit requirements. In a recent opinion letter, the EEOC reversed course on that argument and acknowledged that, no, it must comply with those pre-lawsuit requirements.

This opens a number of possible defenses by employers faced with pattern-or-practice lawsuits, including arguments that the EEOC failed to satisfy pre-lawsuit requirements such as the following:

• The requirement for an actual charge to have been filed first.
• The requirement for an investigation of that charge.
• The requirement for good faith conciliation efforts by the EEOC prior to filing its lawsuit.

This also permits employers to assert that

• They acted in good faith, and/or
• They modified or rescinded the pattern-or-practice.

Arguably the latter gives employers the ability now to moot any pattern-or-practice lawsuit by the EEOC by modifying or rescinding the practice, even after the EEOC has filed its lawsuit.

In its opinion letter, the EEOC also took the position that it can no longer use the pattern-or-practice process to challenge employer actions that are not themselves discriminatory. Specifically this seems to be a concession on its part that, contrary to its litigation efforts to-date, it does not actually have the authority to challenge mandatory pre-dispute arbitration agreements, even if they ultimately had the effect of limiting a worker’s ability to participate in governmental investigations.

Because the EEOC’s opinion letter was not issued through the formal rule-making process, future EEOC Commissioners could re-reverse course. However, this opinion letters is publicly available and at least establishes a dispute over the EEOC’s jurisdiction in pattern-or-practice cases, which, if re-reversed by an EEOC under the leadership of a Democratic President, could be seen by the courts as arguably at least in part political in nature and therefore deserving of Congressional clarification.