EEOC Must Follow Certain Steps Before Filing a Systemic Bias Suit

The Equal Employment Opportunity Commission (EEOC) must receive a discrimination or retaliation charge from a worker and attempt to resolve the claim through voluntary procedures before filing a lawsuit alleging that the employer engaged in a pattern or practice of discrimination, according to a recent opinion letter.

The agency doesn't have the authority to bring a "pattern or practice" lawsuit on its own without following certain steps. Rather, the EEOC is a "creature of statute" and "only has the authority that Congress has given it," the agency said in the Sept. 3 opinion letter. 

However, employers shouldn't wait until they receive a discrimination charge to review their policies and practices. Rather, they should watch for early indicators of potential class exposure, such as numerous EEOC charges with the same or similar allegations, said Katie Bayt, an attorney with Ogletree Deakins in Indianapolis. Employers should adopt an organizational philosophy committed to diversity, equity and inclusion that treats employees fairly and with respect.

Employers should have "clear written policies and practices that honestly reflect the employer's equal employment opportunity values and routinely evaluate the policies and practices used to recruit, hire, promote, train and retain employees to ensure they do not potentially adversely affect certain categories of employees," Bayt said. 

Changing Course

The EEOC is responsible for enforcing federal employment laws, including Title VII of the Civil Rights Act of 1964, which prohibits employers with at least 15 employees from discriminating against job applicants and employees based on national origin, race, color, religion and sex.

Under section 707 of Title VII, Congress authorized the EEOC to sue employers that engage in a pattern or practice of discrimination. The agency has filed lawsuits in the past arguing that section 707 provides an independent basis to sue for violations of Title VII and that the EEOC could file such lawsuits without engaging in pre-suit requirements—but the agency has now reversed its interpretation of the law.

Any "pattern or practice" claim the EEOC brings under section 707 focuses on proving that "an employer regularly and purposefully discriminates against a protected group." The agency said any claim it pursues under section 707 must follow the procedures outlined in Title VII. "This includes that a charge has been filed and an attempt to conciliate has been made."

EEOC Chair Janet Dhillon and Commissioner Victoria Lipnic supported the opinion letter. Charlotte Burrows, the commission's sole Democrat, disagreed and said the agency "is working to roll back civil rights." She said the EEOC rejected a legal theory that has been "used for decades in Republican and Democratic administrations to stop extreme violations of employment rights, as in the successful federal suit against the Ku Klux Klan for threatening and beating black job seekers."

Pre-Suit Requirements

The EEOC can sue an employer on behalf of a worker for discrimination or retaliation under Title VII of the Civil Rights Act of 1964, but the agency must try to resolve the issue through "informal methods of conference, conciliation and persuasion."

When the agency finds that there is "reasonable cause" to believe that a worker was discriminated against, the EEOC will ask the worker and the employer to participate in discussions to attempt to voluntarily resolve the issue outside of court.

The opinion letter clarifies that these requirements also apply to allegations of widespread or systemic discrimination.  

"As a practical matter, there are several key takeaways for employers," said Jim Paretti, an attorney with Littler in Washington, D.C. First, the letter makes clear that a lawsuit alleging a pattern or practice of discrimination must be grounded in a violation of either the nondiscrimination or nonretaliation provisions of Title VII and that the agency will not attempt to stretch beyond the boundaries of the law to allege an employer's "resistance" that doesn't on its face violate the act. 

Second, Paretti said, even in a "pattern or practice" lawsuit, the agency acknowledges that it is obligated to follow the procedures set forth in the statute.

Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis, noted that the EEOC can't skip steps in the process. "Even when pursuing claims on its own, the EEOC must begin with a charge, and move through the conciliation process before filing a lawsuit."

Don't Wait for a Claim

Employers need to address any potential systemic discrimination before a lawsuit or an administrative charge is filed and as soon as the issue arises, said Bonnie Mayfield, an attorney with Dykema in Bloomfield Hills, Mich. Leaders should have an open-door policy, she said, that encourages employees to make suggestions and try to resolve a disputed matter first with their immediate supervisor and lets employees know that they can to talk to someone else in management with the expertise and responsibility to address the concern.

Anthony Dick, an attorney with Fisher Phillips in Cleveland, suggested that employers conduct regular workplace audits that include a review of the employee handbook, company policies and HR practices. Employers may also wish to conduct a statistical analysis of hiring and termination decisions to determine if there is a pattern of discrimination against a particular protected class, he added.

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Tracking complaints is also critical. Martin said employers should ensure discrimination and retaliation complaints are collected and stored in a centralized reporting mechanism to allow for a big-picture review of issues.

Paretti noted that leaders should be asking themselves: "What am I doing to ensure that my workplace is free of discrimination in all instances, for each and every employee?" 

Different employers may implement the following in different ways, he said, but all companies should work toward:

• Building a culture of awareness and respect.
• Ensuring all employees, especially managers and supervisors, are well-trained in how to detect and respond to allegations of discrimination, harassment and retaliation.
• Making sure anti-discrimination policies, reporting procedures and investigations are fair, impartial and adequately resourced.

Above all, Paretti said, those qualities and values should be modeled at the highest level of the organization.