The U.S. Equal Employment Opportunity Commission may not sue an employer unless it has engaged in pre-litigation conciliation — even for pattern or practice claims — a federal district court has held.
The U.S. District Court for the Northern District of Illinois Oct. 7 dismissed an EEOC suit alleging that CVS Pharmacy’s separation agreement violated Title VII of the Civil Rights Act of 1964.
The dispute began when a CVS manager filed a sex and race discrimination charge with the EEOC, despite having signed a separation agreement with the employer forbidding such claims. The commission dismissed her charge but sued CVS, alleging that the agreement violated Title VII.
Because CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement, it interfered with employees’ rights to file discrimination charges and communicate and cooperate with the EEOC, the agency alleged. Interfering with these rights violates Title VII because the law prohibits employer conduct that constitutes a pattern or practice of resistance to the rights it protects, EEOC explained.
According to the court, it is undisputed that the EEOC did not engage in conciliation before filing the lawsuit.
(Note: The commission has filed similar suits alleging illegal severance agreements against CollegeAmerica and an Applebee’s and Panera franchisee. See EEOC Targets Separation Agreements for the full story.)
(Also Note: The U.S. Supreme Court has agreed to decide whether employers can challenge the EEOC’s pre-litigation tactics. See Supreme Court Will Review EEOC’s Enforcement Tactics for the full story.)
While Title VII grants EEOC the authority to investigate and act on a charge of a pattern or practice of discrimination, it must engage in conciliation before filing suit, the appeals court held.
EEOC argued that the statute’s conciliation mandate only applies to individual charges — not pattern or practice suits.
The court, however, was not persuaded. The section authorizing pattern or practice claims states that “[a]ll such actions shall be conducted in accordance with the procedures set forth in section 2000e-5of this title [section 706].” Section 706 grants EEOC authority to pursue individual claims but requires it to first endeavor to eliminate alleged unlawful conduct by informal methods of conference, conciliation and persuasion.
Moreover, the EEOC cites to no case law distinguishing its litigation of individual claims from pattern or practice claims, the court said.
In addition, the EEOC’s own regulations require the agency to use informal methods of eliminating an unlawful employment practice where it has reasonable cause to believe that such a practice has occurred or is occurring, the court said. “As such, EEOC was required to follow the procedures in 706, including conciliation,” it concluded (EEOC v. CVS Pharmacy, No. 14-cv-00863 (N.D. Ill. Oct. 7, 2014)).