EEOC Issues Opinion Letter Restricting Its Own Ability to Bring Suit


As we discussed in an E-Update earlier this year, the Equal Employment Opportunity Commission has recently begun issuing opinion letters, which have been used by other federal agencies, like the Department of Labor, to reflect official agency positions on topics of (more or less) general interest to businesses that may then be relied upon as official guidance. The EEOC’s second such Opinion Letter addresses its ability to bring pattern or practice claims under Title VII.

Section 707 of Title VII allows the EEOC to bring suit against an employer for a pattern or practice of unlawful discrimination. In the opinion letter, the EEOC confirms that Section 707 does not provide a separate violation of Title VII; rather, a Section 707 claim only arises from violations of Sections 703 (discrimination) or 704 (retaliation). Thus, “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.” The EEOC acknowledges that it has not always taken a consistent position on this issue in the past, and is using the Opinion Letter to formalize its position now.

The EEOC also discussed the technical requirements for bringing such claims. First, there must be a charge of discrimination, whether filed by an individual victim of alleged discrimination or by a member of the EEOC. Next, the EEOC must attempt to conciliate any claim after it finds reasonable cause and before filing suit.

Interestingly, in this Opinion Letter, the EEOC is retreating from the aggressive approach to Section 707 claims that it has asserted in the past, which is good news generally for employers. This is in keeping with the generally business-friendly approach employers are seeing from the Department of Labor and the National Labor Relations Board under the Trump administration.