Sixth Circuit Gets it Wrong on Title VII Pattern or Practice Claims

by BakerHostetler
Contact

The “frappe” button on a blender is useful for all kinds of recipes when you want to mix things up, but it, until now, has not been considered a viable rule of statutory construction.

We’ve written before (previous post) about Title VII’s structure and, to a degree, its legislative history. The statute provides a number of tools to address different types of discrimination, and Congress very specifically spelled out what type of claim could be brought and under what circumstances. These legislative decisions were also bound up on Congress’s view that the EEOC was to work first by informal efforts at conciliation and that different means of proof called for different handling and remedial schemes.

The EEOC does have different tools at its disposal. Under section 706 of Title VII, it can bring a garden-variety claim of discrimination and recover extensive remedial relief and damages (up to Title VII’s caps), including on a class-wide basis. Under section 707, the EEOC can bring a “pattern or practice” claim if it can show that the employer’s “standard operating procedure” was to discriminate. See Teamsters v. United States, 431 U.S. 324 (1977). The upside (for the EEOC) is that in a section 707 case, the Commission can shift the burden of proof to the employer to prove that it did not discriminate in a given situation. The downside is that there are more limited damages, and the case is tried to a court, not to a jury.

Yes, the scheme forces the EEOC to make a choice, but it is one that Congress made and reflects careful choices in the methods of proof and the available damages. The “pattern or practice” claim does ease the burden of proof for the purposes of equitable relief, but since the Commission is being relieved of its obligation to prove that a given individual was the subject of a given discriminatory decision, it also makes sense to limit relief. The relief provided, incidentally, still includes panoply of equitable remedies. Of course, given Title VII’s emphasis on informal efforts to conciliate, having the different schemes also aids the conciliation process by requiring the EEOC to find and discuss the alleged pattern or practice with the employer before filing suit.

But wouldn’t it be much easier, if you were the Commission, just to throw the two claims into a blender and to use the best of each? Some courts have examined Title VII and have determined that it cannot. See our related post from June 15, 2012.

Last week, a divided Sixth Circuit demoted “pattern or practice” claims to a mere “standard of proof” and held that it can. In Serrano v. Cintas Corp.pdf., Case. No. 10-2629/11-2057 (6th Cir. Nov. 9, 2012), the EEOC did try to assert both claims under section 706, as well as class-type claims, in a generally vague complaint. It asserted that uniform supplier Cintas discriminated against women in its sales positions. The district court held that the Commission could not bring a pattern or practice claim under the rubric of section 706 and ultimately granted summary judgment for the employer.

The Sixth Circuit panel consisted of two Sixth Circuit judges and one senior judge from the Ninth Circuit. The court issued a 2:1 decision reversing the district court with one Sixth Circuit judge, Karen Moore, writing the majority opinion and the other, Julia Gibbons, dissenting.

For such a difficult issue, the case presented less than pristine facts. First, of course, the district court’s finding that there was no sufficient evidence that discrimination even took place as to the individual claimants suggests strongly that there was no “pattern or practice.” “Pattern or practice” evidence, proof that the employer operates under a general practice of discrimination, would very likely result in there being a question of fact on the individual claims as well, yet even the majority opinion identified no such evidence. There were also serious questions as to whether the Commission had adequately pleaded a pattern or practice claim, an issue that would have caused the dissent to affirm. In light of its decision, the majority ordered additional discovery, including possibly the defendant’s CEO, but in doing so the majority violated the Sixth Circuit Rule not to rely upon unpublished decisions, as it also did with respect to its underlying holding that a pattern or practice claim could be pursued under section 706.

The Serrano decision is troublesome and will simply make the defense of traditional Title VII claims more difficult and expensive. Given the conflict among the courts, at some point this issue may call for Supreme Court review.

The Bottom Line: The Sixth Circuit has held that the EEOC may pursue pattern or practice theories under section 706 of Title VII.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!