Labor & Employment Law Daily EEOC says Section 707 pattern or practice claims are not freestanding Title VII violations
Wednesday, September 9, 2020

EEOC says Section 707 pattern or practice claims are not freestanding Title VII violations

By Pamela Wolf, J.D.

And they are also subject to pre-suit requirements including a charge, reasonable cause finding, and conciliation efforts.

On September 3, the EEOC issued the opinion letter that was the topic of its August 27 closed-door meeting on the Commission’s interpretation and enforcement of Section 707(a), relating to “pattern and practice” litigation under Title VII. The letter responds to a request from an undisclosed member of the public. The opinion letter was approved by vote of the Commission at the meeting, but the EEOC’s press release did not indicate whether the vote was split, and if so, how.

Two questions. The letter addresses two primary questions about Section 707 actions brought by the Commission:

  • Does a pattern or practice claim under Section 707(a) require allegations of violations of Section 703 or Section 704?

  • Does a claim under Section 707 require the pre-suit requirements of Section 706 be satisfied before the EEOC can file suit?

The currently constituted three-member Commission (there are two vacancies) said that the “best reading of the relevant statutory text is that the answer to both questions is yes.”

Reversal from earlier commission position. The EEOC acknowledged that it has previously filed lawsuits in which the Commission advocated that Section 707 provided its own independent basis on which to assert a violation of Title VII, and that the Commission’s suits under Section 707 were not subject to the pre-suit requirements set out in Section 706.

However, the only federal appeals court to rule on the issue was the Seventh Circuit, in EEOC v. CVS Pharmacy, Inc. (2015), which rejected the EEOC’s arguments.

“Although there are reasonable arguments for EEOC’s previous interpretation, the Commission believes that the better reading of the statutory text is that it does not support such a reading of section 707,” the opinion letter states.

Not a freestanding violation. The opinion letter explains that Section 707 does not create a freestanding violation of Title VII, but rather provides for a “pattern or practice” of discrimination delineated in Sections 703 and 704.

“[T]he “pattern or practice” language in section 707 is read most naturally as signifying a pattern or practice (as distinct from an act or acts identifiable in isolation) of unlawful discrimination as defined in sections 703 and 704, not an otherwise undefined Title VII violation to be known as “resistance” to Title VII rights,” the opinion letter states. “In the text of 707(a), “resistance” is directly tied to the statutory rights specified elsewhere in Title VII.”

The letter also reiterates the similar conclusion and specific language of the Seventh Circuit in the CVS Pharmacy case: “Section 707(a) does not create a broad enforcement power for the EEOC to pursue non-discriminatory employment practices that it dislikes—it simply allows the EEOC to pursue multiple violations of Title VII (i.e., unlawful employment practices involving discrimination or retaliation defined in Sections 703 and 704) in one consolidated proceeding.”

Subject to pre-suit requirements. The opinion letter also explains that Section 707 pattern and practice claims are subject to the same Section 706 requirements, including a charge, reasonable cause finding, and conciliation efforts, that apply to all other suits.

Here the Commission relies on the language used when Congress in 1972 transferred to the EEOC the Attorney General’s enforcement authority under Section 707, in newly added Sections 707(c), (d) and (e).

“These provisions indicate that upon EEOC’s assumption of the Attorney General’s previous authority to bring pattern or practice cases against non-government employers under section 707, the Commission was required to follow the procedural requirements of section 706 (such as, a charge, reasonable cause finding, and an attempt to conciliate the dispute) that applied to all other suits that the EEOC sought to bring under Title VII,” the opinion letter states. “To find that section 706 procedures do not apply to actions under section 707 would have the effect of reading section 707(e) ‘out of the statute.’” For this notion the Commission also cites the CVS Pharmacy case.

The Commission also relied on its own regulations, as well as the Supreme Court’s 2015 decision in Mach Mining, LLC, v. EEOC, in concluding that Section 707 claims are subject to pre-suit requirements.

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