This blog relates to a highly technical and, in some respects, dry material, so let’s try to avoid getting overly legalistic.

Introduced back in the 1970’s, a line of children’s clothing called Garanimals was popular with parents.  The idea was that you could buy the Garanimals clothing and not worry about your children wearing patterns or styles that clashed.  Each item in the Garanimals line had a picture of an animal, and all your child had to do was to make sure that pieces of the clothing they wore had matching animals (all with the lion, the zebra, the okapi, etc.).  All in all, it was a pretty good idea, and also a good way to make sure that consumers bought essentially complete wardrobe of your product, or else the system wouldn’t work.

Title VII is a little like the Garanimals system.  The EEOC has broad enforcement powers under Title VII.  In addition to processing routine charges of discrimination, it can request records, can assert Commissioner’s charges, and can maintain essentially class action claims in court with fewer requirements than those imposed on private plaintiffs.

Unlike private plaintiffs, if you are the EEOC you can bring two types of claims.  First, you can bring a straightforward discrimination claim for equitable relief and damages, so long as you meet the burden of proving that the employer engaged in an act of discrimination.  This is a section 706 claim, but we can call it the “lion” pattern.  The good news is that the recovery can be extensive, including money damages up to Title VII’s caps.  The bad news is that you have to prove that the challenged decision was the result of unlawful discrimination.

The second type of claim is one for a pattern or practice of discrimination under section 707. We’ll call this the giraffe claim.  To establish a pattern or practice claim, the EEOC must show that the employer’s “standard operating procedure” was to discriminate.  If it makes that showing, it can shift the burden of proof to the employer to show that a given decision was NOT the result of illegal discrimination.  See Int’l Bhd. Of Teamsters. v. U.S., 431 U.S. 324 (1997).  The downside is that there is no right to trial by jury and the relief is limited to equitable relief.  So in a giraffe (section 707) claim, the burden of proof is easier, but the damages are less extensive.

So, can you mix the lion (section 706) and giraffe (section 707) claims to get both the easier burden and the greater damages?  The fashion police, and now the United States District Court for the Southern District of Texas say “no.”  In EEOC v. Bass Pro Outdoor World, LLC, the EEOC tried to bring a section 707/giraffe/pattern or practice claim under the rubric of a section 706/lion/discrimination claim.  It contended that it could bring a pattern or practice claim under section 706, take advantage of the easier burden of proof of section 707, and recover the higher section 706 damages.  It sought to pursue such claims on a nationwide basis against Bass Pro Outdoor retail chain.

These enforcement provisions have proven up to the task for decades, and as reflected in this blog, the commission has been guilty of overreaching in several cases, resulting in the imposition of serious sanctions from the courts.  Still, however, the EEOC wants to wield an even bigger club against target employers, and has tried to get the best of both worlds in claims against larger employers by trying to combine the two types of claims.

The district court, however, after reviewing Title VII’s language and history, found that the two could not be mixed, and that if the EEOC could maintain a pattern or practice claim under section 706, section 707 would be rendered redundant.  It therefore dismissed the section 706 “pattern or practice” claim, although it did give the EEOC leave to amend to fix other pleading deficiencies.

This may all sound like issues that are only important to lawyers, but the impact of a contrary decision would be to make it much harder for employers to defend EEOC pattern or practice claims.  This decision also stops the EEOC dead in its tracks (whether a lion or a giraffe) in its attempt to bring ever larger claims alleging systemic discrimination against employers with nationwide operations.  Title VII’s structure, like that of the Garanimals clothing line, only works if you don’t mix products that clash.

The Bottom Line:  Despite its effort to bring ever larger and more dangerous claims, EEOC cannot try to take advantage of both the greater damages of a garden variety discrimination claim and the easier burden of a pattern or practice claim in the same case.