Thursday, September 3, 2020: Trump EEOC Pulls Back Obama EEOC’s Claimed ‘Section 707’ Authority
In a rare U.S. Equal Employment Opportunity Commission (EEOC) Opinion Letter, two of the Commission’s three sitting Commissioners voted to trim back powers the Obama EEOC claimed the Commission had when filing so-called Section 707 “pattern or practice” discrimination lawsuits. The Commission addressed two questions involving “stretch” legal positions the EEOC had taken in litigation during the Obama Administration and lost in the Courts:
“First, does a pattern or practice claim under section 707(a) require allegations of violations of section 703 or section 704? And second, does a claim under section 707 require the pre-suit requirements of section 706 be satisfied before the EEOC can file suit? The best reading of the relevant statutory text is that the answer to both questions is yes.”
We recently reported that the EEOC held a meeting to discuss a formal Opinion Letter on the Commission’s authority under Section 707 of the Civil Rights Act of 1964. Section 707 empowers the U.S. Department of Justice (USDOJ) Attorney General to bring suit against state and/or local governments alleging a “pattern or practice” of alleged unlawful discrimination (i.e., a class-based disparate treatment (intentional discrimination) statistical claim…also known to OFCCP practitioners as a “systemic” claim). Significantly, section 707 also allows the EEOC (since 1972) to bring pattern or practice claims against non-governmental entities.
The first question is a technical, but important, legal issue whether Section 707 is an independent source of non-discrimination authority under Title VII. The Obama EEOC position had been that Section 707 gave the Commission the legal authority to prosecute discrimination claims which would NOT be unlawful under all the other sections of Title VII (i.e. under Sections 703 and 704 which describe which employer actions constitute unlawful discrimination, such as disparate treatment, adverse impact; non-retaliation, etc.). The Commission has now laid down the EEOC’s policy that Section 707 claims must allege a violation of employer decisions which would violate Section 703 and/or Section 704. Said another way, the Commission is now saying that Section 707 does NOT provide a third undefined, unbounded and different freestanding (“wildcard”) definition of unlawful discrimination.
The second question goes to whether the Commission, in bringing a Section 707 pattern and practice case, may skip the procedural steps designed to protect employer rights Title VII prescribes. These requirements include the presence of a Charge of alleged unlawful discrimination, and separately, pre-suit conciliation of any claimed violation of Title VII. (This issue arose since the USDOJ does NOT have to follow these procedural steps when it prosecutes state and local governments pursuant to its separate (from the EEOC’s) Section 707 prosecutorial authority). While previously jealous of USDOJ’s lack of obligation to adhere to Title VII’s procedural safeguards when prosecuting state and local governments, the Commission has now bound itself to follow these procedural safeguards in Section 707 litigation the Commission pursues against non-governmental employers.
The Commission voted 2-1 on August 27, 2020 to approve the Opinion Letter. Predictably, Commissioner Charlotte Burrows (the now lone Democrat appointee to the Commission: the Commission remains two Commissioners short of a full five-member Commission) dissented. In addition, Commissioner Burrows issued a public Statement urging the Commission to rescind its Opinion Letter.
So, the Commission is now back to where it was on Section 707 claims before the arrival of the Obama Administration.