EEOC Must Attempt Conciliation of Class-Wide Claims Before Litigating Them
Litigation involving the EEOC and class-type claims differs significantly from those brought by individual class members. As the Supreme Court recognized in EEOC v. Waffle House, 534 U.S. 279 (2002), because of the governmental interest in rooting out discrimination, many of the rules that might limit claims brought by individuals may not apply to litigation brought by the EEOC. This issue may arise, for example, in the case where a putative class member has signed an arbitration agreement and could not pursue claims on his or her own behalf, but the agreement may not bar action by the Commission. Similarly, the EEOC, because it technically does not represent the individual employee, may not be bound by some of the strictures that might govern counsel for an individual plaintiff.
