On September 3rd, the EEOC issued an opinion letter that reversed course on its authority under Section 707 of Title VII of the Civil Rights Act of 1964 to initiate discrimination actions against employers. The EEOC concluded it does not have the power to sue employers for discriminatory workplace practices without first complying with other procedural steps.
The opinion letter answered two questions: 1) does a pattern or practice claim under section 707(a) require allegations of violations of section 703 (discrimination) or section 704 (retaliation), and 2) does a claim under section 707(a) require the pre-suit requirements of section 706 to be satisfied before the EEOC can file suit? The EEOC answered both questions in the affirmative.
The EEOC’s current reading of statutory authority and case law led it to conclude that section 707(a) does not create a broad enforcement power for the EEOC. Section 707 does not provide a freestanding violation of Title VII. Instead, it gives the EEOC the authority to pursue multiple violations of discrimination and retaliation under Title VII. Accordingly, any suit that the EEOC brings under section 707(a) must be “tethered” to an alleged pattern or practice of conduct that violates either section 703 or section 704.
Further, the EEOC cannot pursue an action under section 707(a) until it complies with specific procedural steps. Under section 707(e) and section 706, a charge must be filed before the Commission can file a civil action. Even if a charge has been filed, section 706 requires the Commission to find reasonable cause and attempt conciliation before filing suit. The Commission concluded the requirements of section 706 must be followed for actions brought under section 707.
The opinion letter ends the EEOC’s previous interpretation of its authority under section 707, which it relied on for decades.