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On September 3, 2020, the Equal Opportunity Commission (“EEOC”) issued an Opinion Letter concerning the so-called “pattern or practice suits” brought under section 707 of Title VII. The questions answered in the letter are: (1) Does a pattern and practice claim under section 707(a) require allegations of violations of section 703 or section 704; and (2) Does a section 707 claim require the pre-suit requirements of section 706 be satisfied before suit can be filed? The EEOC answered both questions in the affirmative, which was a change from previous stances on both issues.
Section 707(a) allows the EEOC to bring suit when “a person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described.” 42 U.S.C. § 2000e-6(a). The subchapter is Title VII itself and the rights secured by Title VII are the rights to be free from unlawful discrimination (section 703) and retaliation (section 704). Reading the sections together, the EEOC opines that a claim under section 707 must therefore be based on a pattern or practice that is tied to unlawful discrimination or retaliation. This position deviates from the EEOC’s earlier broader interpretation that it had authority to pursue claims based on undefined practices that it believed facilitated unlawful “resistance” in some way, even if those practices did not violate section 703 or 704.
The EEOC further advised that the 706 pre-suit requirements must be satisfied before bringing suit. Thus, a charge must be filed, a reasonable cause finding must issue, and conciliation must be pursued before suit is filed. This too was a change from the EEOC’s earlier position that it was not bound by the section 706 requirements when pursuing a claim of “pattern or practice of resistance.”
Employers who rely in good faith and in conformance with the interpretations provided in the Opinion Letter may have a defense to a claim even if the Opinion Letter is subsequently rescinded, modified, or invalidated by a court.