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Punching In: EEOC Debates Authority for Title VII Bias Suits

Aug. 31, 2020, 9:18 AM

Monday morning musings for workplace watchers

Title VII Opinion Letter? | Telework Guidance Questions | Visa Fee Uncertainty

Paige Smith: The Equal Employment Opportunity Commission met behind closed doors Thursday to discuss its authority under a section of civil rights law that’s been marked by discrimination lawsuits against companies such as Cintas Corp. and CVS Pharmacy—and it teased publishing an opinion letter on the matter.

Section 707 of Title VII of the Civil Rights Act of 1964 gives the EEOC authority to bring lawsuits against businesses alleging a “pattern or practice” of employment discrimination.

But there’s debate over whether those allegations also can be brought under Section 706 of the same law, which accounts for the bulk of EEOC anti-bias enforcement actions but doesn’t explicitly mention pattern-or-practice suits.

One difference between the two is the kinds of damages that apply. Congress in 1991 amended the Civil Rights Act to allow for compensatory and punitive damages “for intentional employment discrimination on the basis of race, color, religion, sex, national origin, or disability,” with some exceptions. The key word there is “intentional.” Employers have argued that excludes pattern-or-practice suits and, therefore, prohibits punitive damages under Section 707, which allows for injunctive relief under Title VII.

The U.S. Court of Appeals for the Fifth and Sixth Circuits have ruled the agency can pursue pattern-or-practice suits under both Sections 707 and 706.

Recent Settlement: The agency, which declined to comment when asked about the closed session, recently settled a lawsuit with food services company Doherty Enterprises that had been pending before the Eleventh Circuit. The suit acknowledged the 707 versus 706 debate, but ventured into a different EEOC authority dispute—one that also may have been discussed at last week’s meeting.

The Doherty case dealt with whether the agency can bring a pattern-or-practice suit under Section 707 without first receiving a charge from a worker alleging discrimination. Section 706 requires a charge for the agency to proceed to litigation.

Doherty Details: The company allegedly told its workers that its mandatory arbitration agreement precluded them from filing any sort of discrimination complaints with outside enforcement agencies, the EEOC argued. The company countered that the agency didn’t follow proper pre-litigation procedures, by suing it under Section 707 without first receiving a charge from a worker.

The lower court ruled in Doherty’s favor on procedural grounds, and the Chamber of Commerce and Jones Day filed a friend-of-the-court brief in the EEOC’s appeal of the lower court’s decision.

Pre-litigation Procedures: The Seventh Circuit separately ruled in 2015 that, for lawsuits brought against an employer under Section 707, “the EEOC is required to comply with all of the presuit procedures contained in Section 706 when it pursues ‘pattern or practice’ violations.”

Because the EEOC’s meeting notice specifically mentioned its authority under Section 707, Akin Gump partner Esther Lander said she thinks the meeting likely addressed pre-litigation procedures.

“I suspect that the issue might be an opinion as to whether the EEOC believes itself to be bound by the procedures of 706 when it brings a pattern or practice lawsuit,” she said in an email. “The Obama administration EEOC decided to test this issue by pursuing pattern or practice claims in court under Section 707 without first satisfying the administrative perquisites in Section 706 involving the charge filing process.”

“We were trying to give meaning to the plain text of the statutes,” David Lopez, EEOC general counsel during the Obama administration, said of its approach to Sections 706 and 707.

We’ll have to wait to see if the EEOC releases an opinion letter or leaves the matter to the courts.

Ben Penn: The Labor Department’s silence on its partially vacated paid-leave rule hits the four-week mark Monday. But DOL has weighed in on other crucial matters at the intersection of school reopenings and parents working from home.

DOL’s Wage and Hour Division offered guidance last week on employers’ responsibilities to track unscheduled teleworking hours to ensure they’re not liable for unpaid wages. Four management attorneys I interviewed said they welcomed the assurance that their clients don’t need to sleuth for evidence of an employee’s unrecorded work by scanning laptop or cellphone data.

Groundbreaking? Aside from clarity in that area, which applies in limited scenarios, the field assistance bulletin didn’t break much new ground. The lawyers told me it was helpful, albeit maybe a few months too late, and mostly served as a reminder to be extra cautious about off-duty compensable time during the telework surge.

But there are unresolved questions. Lawyers haven’t seen many claims from workers on issues of remote work and wages, but as working parents juggle helping children in virtual classrooms this fall, they expect more litigation to emerge.

Example 1: An assistant, such as a paralegal, is available to work but not particularly busy, and so takes 15 minutes to help a child with a school assignment, explained Michele Fisher, a managing partner at plaintiff firm Nichols Kaster. Will an employer be allowed to require the worker to clock out for that time, even though they’re simultaneously monitoring their phone for emails?

“I think we’re going to start seeing more situations on that,” said Fisher, who devotes her practice to nationwide wage-hour class and collective actions.

Example 2: An overtime-eligible employee works irregular periods early in the morning or late into the night, because they’re preoccupied with helping their children during the heart of the workday. Per DOL’s guidance, if a supervisor were to get an email at 9:30 p.m., showing the employee was working, the employer would therefore know about the time and be responsible for paying for it, even if the worker didn’t report it.

“But that doesn’t mean the person is working extra hours; it could be a part of their continuous workday,” said Fred Plevin, chair-elect of the Wage & Hour Defense Institute. “Employers really need to monitor the timesheets to see when people are working.”

While those questions could use more clarity, the WHD has been quite active on other fronts this month, most notably by moving the independent contractor proposed rule to the White House for review over the weekend. Plus, the agency will be releasing more Fair Labor Standards Act guidance Monday in four new opinion letters, an agency spokeswoman tells Punching In. They’ll cover minimum wages for delivery drivers, applying the fluctuating workweek method for calculating overtime, and more.

Genevieve Douglas: U.S. Citizenship and Immigration Services, an agency funded by user fees, has canceled furloughs that were set to take effect Monday for 75% of its staff. But the agency’s cash crunch, and the uncertainty of relief from Congress, present problems for employers and immigrants applying for work visas.

Everett Kelly, national president of the American Federation for Government Employees, said that while the “immediate threat” of furloughs has passed, “we still need Congress to act to prevent similar funding challenges and ensure that the agency is able to operate without further threats to workers and their jobs.”

Pandemic Side Effect: The agency, responsible for processing visa applications and benefits, sounded the alarm in May that the pandemic had caused a dramatic drop in visa petitions and, therefore, revenue. Acting agency head Joseph Edlow said it would need $1.2 billion in emergency funding from Congress to remain solvent through 2020.

The cost-cutting measures needed to avert the furloughs will mean increased wait times for pending case inquiries, longer processing times, and additional delays for applicants hoping to adjust their visa status or complete their naturalization process, the agency said.

Uncertain Future: The House on Aug. 22 unanimously passed H.R. 8089 to give the agency the funding it says it needs to continue adjudicating benefits into 2021. The measure would raise fees for premium processing, a fast-track option for visa applications, and expand which categories qualify for the service.

But the funding fix is wrapped up in the partisan impasse over broader virus-relief legislation.

The White House hasn’t formally requested an emergency infusion for USCIS, but the Office of Management and Budget sent a letter to Senate Appropriations Chair Richard Shelby (R-Ala.) backing a “deficit-neutral approach” to shoring up the agency. An appropriations bill Senate Republicans released as part of their Covid-19 stimulus proposal would provide $1.2 billion in loan authority.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us. See you back here on Sept. 8 due to the Labor Day holiday.

To contact the reporters on this story: Paige Smith in Washington at; Ben Penn in Washington at; Genevieve Douglas in Washington at

To contact the editor responsible for this story: John Lauinger at