The vast majority of all equal employment opportunity lawsuits are filed by individual employees or job applicants. The Equal Employment Opportunity Commission (EEOC) may file cases on behalf of individuals, but it rarely does so because of limited resources. To get more “bang” for its litigation bucks, the EEOC is increasingly turning to “pattern-or-practice” cases. You should respond to any EEOC charges against your company with that in mind, crafting your responses to avoid creating issues that trigger federal court litigation funded by the agency.
EEOC Focus: Systemic Claims
In recent years, the EEOC has shifted much of its focus to systemic claims, otherwise known as pattern-or-practice claims, which target discriminatory patterns, practices, or policies that have a broad impact on certain groups of individuals. In 2005, for example, the EEOC created the Systemic Task Force for the primary purpose of improving its methods and strategies for targeting systemic discrimination. In fact, although the EEOC has recently filed fewer lawsuits on behalf of individual employees, the number of systemic discrimination lawsuits it has initiated has approximately doubled in the past 10 years. In 2010 alone, out of 165 systemic investigations, the agency obtained 29 settlements or conciliation agreements, bringing in approximately $6.7 million.
Statute of Limitations Issues
The danger is enhanced still further by the aggressive position the EEOC takes in such matters. More specifically, the agency contends that it may pursue pattern-or-practice claims even if they are based on conduct outside the 300-day limitations period. Put another way, the EEOC contends that it isn’t bound by the 300-day limitations period when it’s litigating pattern-or-practice cases. Although several courts have held that the EEOC, like individual plaintiffs, is bound by the limitations period, at least one district court in New York has held otherwise.
In a 2009 case, a magistrate judge held that the time limitations “do not limit the relief . . . the EEOC may seek.” The agency commenced an enforcement action against an employer that included both individual and pattern-or-practice charges and alleged discriminatory acts beginning on January 1, 2003, at the latest. The employer asked the court to dismiss the complaint to the extent that it sought relief for alleged discrimination occurring before July 22, 2004, or 300 days before the date on which the first individual charge was filed. In response, the EEOC argued that the statute of limitations didn’t apply to its claims. The magistrate judge agreed and recommended that the employer’s request for dismissal be denied. His report and recommendation were later adopted by the district court judge. EEOC v. Sterling Jewelers Inc., 2009 U.S. Dist. LEXIS 122102 (W.D.N.Y., 2009).
Other courts, both before and after the Sterling Jewelers decision, have reached the opposite conclusion. Indeed, in some of the more recent cases, district courts have dismissed claims filed by the EEOC outside the 300-day statute of limitations as untimely. Nevertheless, because the law is unsettled and because the EEOC continues to take the position that it isn’t bound by the limitations period, employers must be prepared to defend against potential pattern-or-practice charges, even if they’re arguably untimely.
Practical Pointers
In light of the fact that the EEOC has made pattern-or-practice claims a priority, you should be cautious when responding to charges and participating in the investigation of individual claims. Indeed, the EEOC has authority to expand the scope of its inquiry to address systemic claims that are ascertainable during the course of its investigation of individual charges. Thus, you must be aware that any information you provide to the agency can raise potential pattern-or-practice issues and may result in additional, more threatening EEOC charges.
The bottom line is that you cannot necessarily rely on the short limitations period of the federal antidiscrimination laws. The EEOC is willing to look beyond the traditional 300-day period if it believes there’s evidence of a systematic form of discrimination. Be sure you consider that when drafting responses to EEOC charges.
Diane Pietraszewski is an associate with Bond, Schoeneck & King, PLLC, in the Buffalo, New York, office and a contributor to New York Employment Law Letter. She can be reached at dpietraszewski@bsk.com or (716) 566-2853.