Friday, September 11, 2020
The U.S. Equal Employment Alternative Fee (EEOC) lately issued an opinion letter clarifying its authority to carry “sample and apply” lawsuits beneath § 707(a) of Title VII of the Civil Rights Act of 1964. The Fee’s detailed steering, issued September 3, 2020, pronounces a extra restrained method by the company in bringing such claims.
The Commissioners voted to approve the steering on August 27, 2020. Within the letter, the EEOC states as a matter of coverage that an alleged “sample or apply of resistance” is just not an unbiased purpose for the company to sue an employer, absent an underlying allegation of discrimination or retaliation. The EEOC has used Part 707’s “resistance” provision of late—unbiased of any precise violations of Sections 703 or 704—to problem employer practices that it contends intrude with the proper of staff to pursue Title VII claims.
Historic Background. Part 707 dates from the unique passage of Title VII when the Justice Division and never the EEOC litigated violations of Title VII. Part 707 permitted the Legal professional Basic to file a lawsuit in opposition to “any particular person or group of individuals engaged in a sample or apply of resistance” to the rights protected by Title VII. Earlier than the EEOC was given litigation authority in 1972, the Legal professional Basic did often file 707 lawsuits with out underlying fees and in opposition to people.
Questions Answered. The EEOC addressed two questions: (1) “[D]oes a sample or apply declare beneath part 707(a) require allegations of violations of part 703 or part 704?” and (2) “[D]oes a declare beneath part 707 require the pre-suit necessities of part 706 be glad earlier than the EEOC can file swimsuit?” The opinion letter states: “The very best studying of the related statutory textual content is that the reply to each questions is sure.”
Altering Course. This newest stance is in distinction with the EEOC’s earlier place on each questions. Up to now, the Fee has filed swimsuit difficult employer insurance policies or practices even the place no underlying violations of Sections 703 or 704 of the statute had been alleged. The U.S. Court docket of Appeals for the Seventh Circuit, the one appeals courtroom to have thought of the difficulty, rejected such an expansive tackle the Fee’s authority in EEOC v. CVS Pharmacy, Inc., a 2015 determination rebuffing the EEOC’s unbiased problem to severance agreements that included language which, within the EEOC’s view, deterred staff from pursing EEOC fees, or taking part in EEOC proceedings. “Part 707(a) doesn’t create a broad enforcement energy for the EEOC to pursue non-discriminatory employment practices that it dislikes,” the courtroom wrote.
Falling in keeping with the Seventh Circuit, the EEOC now says that “the higher studying of the statutory textual content is that it doesn’t assist such a studying of part 707.” A Part 707 declare should be “tethered” to an underlying allegation of discrimination or retaliation, it now concludes. “Relatively than giving the Fee wide-ranging energy to carry swimsuit in opposition to undefined practices that it believes facilitate illegal ‘resistance’ in a roundabout way, however will not be themselves illegal discrimination, part 707 offers the Fee the vital energy of performing in opposition to acts of discrimination in violation of sections 703 or 704.”
Pre-suit Procedures Required. The opinion letter additionally states that the EEOC should have interaction in pre-suit procedures, together with a proper cost, cheap trigger discovering, and conciliation efforts, earlier than it could carry a Part 707 sample and apply declare, holding itself to the identical procedures it should observe when pursuing allegations on behalf of particular person claimants beneath Part 706.
Justice Division Authority. Though the EEOC now has the authority to sue personal employers, the Justice Division has litigation authority regarding sue state and native governments for Title VII violations. The opinion letter notes that the EEOC is just not opining on the Justice Division’s authority to file fits with out a cost, and notes that the Justice Division does have the authority beneath Part 707 to sue people.
Takeaway. The EEOC seldom points formal opinion letters, and this uncommon steering is welcome information for employers. It represents a big step again from the EEOC’s expansive view of its personal authority to problem employer practices with out citing a particular alleged violation of discrimination—and its authority to take action with out first making an attempt to resolve the matter informally. As a proper steering, employers can cite it favorably when defending firm insurance policies in opposition to any such freestanding actions by the EEOC.
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