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.

But EEOC class-type litigation also has its limits.  Because public policy also favors efforts at voluntary conciliation, the EEOC is required to make good faith efforts to settle matters for which it has made a finding of probable cause.  Under Title VII, once it has found probable cause, the Commission “shall endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  42 U.S.C. section 2000e-5(b).  Thus, while the EEOC may have flexibility that other claimants may lack after suit has been filed, the same policies that grant that flexibility also require it to provide notice and to attempt to resolve disputes amicably before suit is filed.

On September 20, 2010, the United States District Court for the Eastern District of Michigan entered a decision that underscores the Commission’s obligation to give the employer proper notice of its intention to pursue class-wide claims and to conciliate them before filing suit.    In EEOC v. Cintas Corp.pdf., the court found that the EEOC’s failure to do so entitled the employer to judgment in its favor.

The Cintas litigation had a long procedural history, but started with two individual actions with multiple plaintiffs alleging sex discrimination in violation of Title VII.  The EEOC initially did not join the litigation, but did intervene years after suit was filed.  After the court denied class certification and the individual claims were largely resolved, the EEOC sought to pursue pattern and practice claims on behalf of approximately 50 individuals, a number that subsequently dwindled to 13. These individuals were not part of the original suit or the Commission’s earlier conciliation efforts.   The court found that the EEOC had not exhausted its administrative remedies and had not engaged in the statutorily mandated conciliation.  It rejected the Commission’s argument that its efforts on behalf of the original individual plaintiffs was sufficient, finding, in essence, that the EEOC was required to conciliate the matters it was pursuing in the case.   

The Bottom Line:  Litigation against the EEOC can be difficult because of its unique role, but the Commission cannot create a class claim after suit is filed.  The EEOC must advise the employer of the class claims it seeks to assert and must follow its statutory mandate to attempt to resolve them without litigation.