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EEOC Limits Power to Bring ‘Pattern or Practice’ Bias Claims (1)

Sept. 3, 2020, 6:06 PM

The Equal Employment Opportunity Commission doesn’t have authority to sue employers over sweeping job patterns or practices that allegedly lead to workplace bias without first going through procedural steps laid out by federal law, the agency said in an opinion letter released Thursday.

The agency said a worker must file a discrimination charge with the agency, and attempt to resolve the dispute through conciliation, before the EEOC can bring a “pattern or practice” suit against an employer under Section 707 of Title VII of the Civil Rights Act of 1964.

The opinion letter comes one week after the agency held a closed meeting to discuss its Section 707 power. It reverses interpretations previously used by the agency to bring systemic discrimination cases against companies. The agency has brought such suits in the past without adhering to those requirements, drawing a rebuke from the U.S. Court of Appeals for the Seventh Circuit in a 2015 case involving CVS Pharmacy.

The letter also explained that the agency must tie a “pattern or practice” claim to discrimination, and not to other potentially unlawful activity. This was an issue the Eleventh Circuit considered recently in a case over whether the EEOC could challenge an employer’s mandatory arbitration agreement that barred workers from filing complaints with government enforcement agencies. That case was settled last month.

The U.S. Chamber of Commerce told the Eleventh Circuit, in a friend-of-the-court brief, that the agency shouldn’t have the authority to “challenge otherwise-lawful and legitimate employment practices.” The business group said that it strips employers of “important procedural protections that Congress imposed to constrain EEOC’s power.” The Chamber filed a similar brief in the Seventh Circuit case.

Charlotte Burrows, the lone Democratic member of the EEOC, said in a statement that the interpretation issued in the opinion letter abandons the agency’s long-standing interpretation of the civil rights law. She said the legal theory in Thursday’s letter rejects an interpretation used for decades to stop especially severe civil rights violations in employment, such as when the federal government successfully sued the Ku Klux Klan for attacking African Americans seeking job opportunities.

“As Americans call for an end to systemic discrimination, it’s unconscionable that the agency charged with remedying job discrimination is working to roll back civil rights,” Burrows said, explaining why she opposed the agency’s change of interpretation. “Today the Commission not only abandons its duty to enforce the law as Congress intended, but it does so without any opportunity for prior public notice and comment.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com