Fending Off Future Bench-Slaps, the EEOC Slaps Itself

By John Alan Doran

Yesterday the EEOC took the extraordinary step of limiting its own jurisdiction. Section 707 of Title VII empowers the EEOC to bring “pattern and practice” lawsuits to challenge an employer’s “resistance” to the rights protected by Title VII.  In the past, the Commission has used its “pattern and practice” powers under Title VII to initiate its own lawsuits challenging a wide variety of employer practices that do not, of themselves, violate Title VII.  And, the Commission brought these actions without any regard for the usual Title VII prerequisites of a charge, an investigation, a cause finding, and post-finding conciliation. 

Yesterday, the EEOC issued an opinion, unanimously approved by the three current EEOC commissioners (there are two vacancies presently).  The letter makes clear that the EEOC’s “pattern and practice” authority is limited to challenging practices that actually violate Title VII, as opposed to practices the EEOC thinks somehow chill employee rights under Title VII.  The opinion letter also concludes that any such action must proceed through the usual Title VII statutory prerequisites of a charge, a cause finding, and attempts at conciliation before a suit can proceed.

The EEOC’s introspection here is refreshing and will certainly curb some of its litigation abuses.  However, it may be short-lived as commissioners come and commissioners go, and this issue will likely resurface under a new administration sometime in the future.