In Arizona Ex Rel. Horne v. The Geo Group, No. 13-16081 (9th Cir. Mar. 14, 2016), the U.S. Court of Appeal for the Ninth Circuit vacated the district court’s summary judgment orders and reinstated a pattern or practice action brought by the Equal Employment Opportunity Commission and the Arizona Civil Rights Division against The Geo Group, Inc. (“Geo”). Most significant is the Ninth Circuit’s ruling that the EEOC and the Division sufficiently conciliated its class claims in light of Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015). Further, the Ninth Circuit held that Title VII’s 300-day limitations period starts to run from the date the first aggrieved employee files an agency charge and that, in an EEOC pattern or practice action, an aggrieved employee is not required to file a new agency charge for acts occurring after the reasonable cause determination if the claims are “like or reasonably related” to the initial charge.
In sum, the Ninth Circuit’s decision emphasized that the EEOC deserves “flexibility” and “discretion” to investigate and litigate claims with limited interference from the courts, and shows that Mach Mining, while helpful, is not a panacea for all overreaching agency conduct.
On June 5, 2009, a female corrections officer, Alice Hancock, filed a charge of discrimination with the Arizona Civil Rights Division (“the Division”) against her employer The Geo Group, Inc. alleging gender-based discrimination and harassment as well as retaliation for reporting such conduct. Id. at 7. After agency investigations led to identification of other potential aggrieved employees, the Division issued a reasonable cause determination concluding Geo had violated Arizona state laws prohibiting discrimination, harassment, and retaliation against “Hancock and a class of female employees” at two correctional facilities operated and managed by Geo. Id. at 8-9. After conveying a settlement proposal to Geo and completing a conciliation session, the Division and the EEOC filed suit on behalf of Hancock and similarly situated employees at the two correctional facilities. Id. at 10. The District Court then granted Geo’s motions for partial summary judgment dismissing, in part, the claims of several employees who were not identified until after filing of the complaint on the basis that these individuals’ claims were not conciliated, and also, dismissing several employees who had not alleged acts within 300 days of the reasonable cause determination. Id. at 11-12.
The Ninth Circuit’s Review And Decision
In reversing the District Court’s holding that the EEOC must identify and conciliate on behalf of each aggrieved employee prior to bringing a pattern or practice action, the Ninth Circuit began by analyzing the U.S. Supreme Court’s ruling in Mach Mining. While recognizing that the EEOC’s pre-suit conciliation efforts are subject to judicial review, the Ninth Circuit emphasized the Supreme Court’s discussion on the “limited” and “relatively bare bones review” process, and further, reiterated that any analysis of good faith efforts would improperly extend such review. Id. at 15-17. The Ninth Circuit held that pre-suit conciliatory requirements are satisfied in an EEOC pattern or practice action if there have been attempts to conciliate “on behalf of an identified class of individuals.” Id. at 18. The Ninth Circuit refused to impose any additional requirements, such as identification of each aggrieved employee, on the grounds that the Supreme Court in Mach Mining did not require anything more. Id. at 18-19.
The Ninth Circuit further reasoned that requiring conciliation on an individual basis would effectively bar recovery on behalf of those class members not yet identified at the time of filing suit, noting private litigants are able to do. Id. at 19. The Ninth Circuit recognized, however, that there may be limits where a class extends nationwide, but the investigation is based on less than a dozen employees. Id. at 19 fn. 6. Here, such limitation did not exist where there was investigation into multiple aggrieved employees in two facilities, the two facilities were identified in the reasonable cause determination and part of pre-suit conciliations efforts, and the pattern or practice action was limited in scope to the two facilities. Id. The Ninth Circuit additionally stated its holding is consistent with “the Supreme Court’s broad interpretation of the EEOC’s enforcement powers” and its prior acknowledgement of case law holding “the EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant in a [pattern or practice action].” Id. at 19-20.
Next, the Ninth Circuit reversed the dismissal of employees who had not alleged acts within 300 days of the Division’s reasonable cause determination, holding that the timeliness of other aggrieved employees’ claims in an EEOC pattern or practice action is calculated from 300 days prior to the first aggrieved employee’s charge, the same as for private litigants. Id. at 24. The Ninth Circuit further held that an aggrieved employee in an EEOC pattern or practice action who alleges unlawful conduct occurring after the reasonable cause determination is not required to file a new agency charge if the claim is “like or reasonably related” to the initial charge. Id. at 27. As such, the Ninth Circuit determined that the District Court’s per se exclusion of any discrimination or retaliation that occurred after the date of the reasonable cause determination was improper. Id. at 28-29.
Implications For Employers
The Ninth Circuit’s ruling in The Geo Group, Inc. appears to be a win for the EEOC, but it is not without limits as the pattern or practice action against Geo dealt with a more limited class of alleged victims. While the Ninth Circuit ruled that the EEOC does not need to conciliate on behalf of each aggrieved employee by name, it also noted there must be a sufficiently clear scope of the class of alleged victims, and further cautioned that any investigation must be related in scope to the actual litigation. Time will show how far the EEOC tries to push the ruling in The Geo Group, Inc. as well as the Ninth Circuit’s interpretation of Mach Mining to broaden the scope of any future pattern or practice actions.