The “frappe” button on a blender is useful for all kinds of recipes when you want to mix things up, but it, until now, has not been considered a viable rule of statutory construction.

We’ve written before (previous post) about Title VII’s structure and, to a degree, its legislative history. The statute provides a number of tools to address different types of discrimination, and Congress very specifically spelled out what type of claim could be brought and under what circumstances. These legislative decisions were also bound up on Congress’s view that the EEOC was to work first by informal efforts at conciliation and that different means of proof called for different handling and remedial schemes.

The EEOC does have different tools at its disposal. Under section 706 of Title VII, it can bring a garden-variety claim of discrimination and recover extensive remedial relief and damages (up to Title VII’s caps), including on a class-wide basis. Under section 707, the EEOC can bring a “pattern or practice” claim if it can show that the employer’s “standard operating procedure” was to discriminate. See Teamsters v. United States, 431 U.S. 324 (1977). The upside (for the EEOC) is that in a section 707 case, the Commission can shift the burden of proof to the employer to prove that it did not discriminate in a given situation. The downside is that there are more limited damages, and the case is tried to a court, not to a jury.

Yes, the scheme forces the EEOC to make a choice, but it is one that Congress made and reflects careful choices in the methods of proof and the available damages. The “pattern or practice” claim does ease the burden of proof for the purposes of equitable relief, but since the Commission is being relieved of its obligation to prove that a given individual was the subject of a given discriminatory decision, it also makes sense to limit relief. The relief provided, incidentally, still includes panoply of equitable remedies. Of course, given Title VII’s emphasis on informal efforts to conciliate, having the different schemes also aids the conciliation process by requiring the EEOC to find and discuss the alleged pattern or practice with the employer before filing suit.

But wouldn’t it be much easier, if you were the Commission, just to throw the two claims into a blender and to use the best of each? Some courts have examined Title VII and have determined that it cannot. See our related post from June 15, 2012.

Last week, a divided Sixth Circuit demoted “pattern or practice” claims to a mere “standard of proof” and held that it can. In Serrano v. Cintas Corp.pdf., Case. No. 10-2629/11-2057 (6th Cir. Nov. 9, 2012), the EEOC did try to assert both claims under section 706, as well as class-type claims, in a generally vague complaint. It asserted that uniform supplier Cintas discriminated against women in its sales positions. The district court held that the Commission could not bring a pattern or practice claim under the rubric of section 706 and ultimately granted summary judgment for the employer.

The Sixth Circuit panel consisted of two Sixth Circuit judges and one senior judge from the Ninth Circuit. The court issued a 2:1 decision reversing the district court with one Sixth Circuit judge, Karen Moore, writing the majority opinion and the other, Julia Gibbons, dissenting.

For such a difficult issue, the case presented less than pristine facts. First, of course, the district court’s finding that there was no sufficient evidence that discrimination even took place as to the individual claimants suggests strongly that there was no “pattern or practice.” “Pattern or practice” evidence, proof that the employer operates under a general practice of discrimination, would very likely result in there being a question of fact on the individual claims as well, yet even the majority opinion identified no such evidence. There were also serious questions as to whether the Commission had adequately pleaded a pattern or practice claim, an issue that would have caused the dissent to affirm. In light of its decision, the majority ordered additional discovery, including possibly the defendant’s CEO, but in doing so the majority violated the Sixth Circuit Rule not to rely upon unpublished decisions, as it also did with respect to its underlying holding that a pattern or practice claim could be pursued under section 706.

The Serrano decision is troublesome and will simply make the defense of traditional Title VII claims more difficult and expensive. Given the conflict among the courts, at some point this issue may call for Supreme Court review.

The Bottom Line: The Sixth Circuit has held that the EEOC may pursue pattern or practice theories under section 706 of Title VII.