Over the last 5 years, the EEOC has become increasingly aggressive in the bringing and pursuit of broad initiatives and, in particular, class litigation.  Cynics can debate whether this springs from a desire to make a difference or one to bully employers through litigation costs into abandoning lawful practices that are not to its liking, but either way the Commission has been pursuing ever larger cases on questionable facts.

The EEOC, however, is not simply a federally funded plaintiff’s employment firm, but one charged with enforcing the nation’s civil rights laws that view litigation as a last resort.  Further, while Congress has given the EEOC unique tools when that last resort proves necessary, it still must meet certain requirements including, naturally enough, having evidence that the employer actually did something wrong. 

In the past two months, several courts have expressed concern over the EEOC’s current tactics and in particular its failure to conciliate charges under Title VII reasonably and in good faith and its bringing of expensive class action litigation based on little more than extrapolation of one individual circumstance across an entire workforce.

We’ve written earlier about some of these cases as they unfolded, but a few recent decisions are worthy of comment.

Most recently, in EEOC v. Bass Pro Outdoor World, LLC, Case No. 4:11-CV-3425 (S.D. Tex., Oct. 2, 2013), the EEOC brought claims against the Bass Pro outdoor retailer, contending that it discriminated against minorities in its hiring practices.  As an aside, even if you are not the outdoors type, their stores are practically destinations unto themselves with an astonishing array of products for campers, hikers, fishers, hunters and others that you may not have even dreamed of.

We commented previously on the court’s treatment of the EEOC’s efforts to combine a straight-forward discrimination claim with a pattern or practice claim. Unfortunately, the court later permitted part of the case to proceed, but the defendant then charged the EEOC with failing to conciliate in good faith under Title VII. Rather than defend its tactics during the conciliation process, the Commission moved the court for partial summary judgment based on its contention that the court had no power to review its good faith or the reasonableness of its conduct during conciliation.

The court viewed the Commission’s motion as raising mostly an issue of law, and methodically rejected its arguments.  It reviewed Title VII’s history and noted the statute’s strong preference for “settling disputes, if possible, in an informal, noncoercive fashion.”  Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977).  It found that under the statute the EEOC was to act in a reasonable and responsive manner while conciliating a charge.  More specifically, it found that the EEOC was required to (1) outline for the employer the basis for its belief that reasonable cause existed; (2) offer the employer the opportunity for voluntary compliance, and (3) “respond in a reasonable and flexible manner to the reasonable attitudes of the employer.”  Citing EEOC v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th Cir. 2009).

The court found that the EEOC’s arguments were proscribed by this binding authority, but also analyzed them separately and found they were without merit.  The court reiterated that voluntary compliance was the preferred means of enforcement under Title VII and overruled the EEOC’s motion.

The district court’s decision was not only legally right, but good policy.  The vast majority of employers want to run their businesses ethically and lawfully.  Even in litigation, courts express a strong preference for amicable resolution of such claims, in part because the parties can fashion for themselves a better and more suitable resolution than one imposed by the court, and for the wise reason that the parties are willing to view their commitments more favorably if they were reached voluntarily than imposed by an outside court or agency. 

While this case dealt with the commonsense and non-burdensome obligation to conciliate, other courts have been critical of the EEOC’s conduct in litigation, particularly when it files or pursues claims when it has no evidence of widespread discrimination.  Less than two months ago, a federal district court described the EEOC’s arguments in a class-wide discrimination case challenging the employer’s use of criminal background checks as “laughable.”  EEOC v. Freeman, Case No. RWT 09cv2573 (D. Md. Aug. 9, 2013).  We blogged that case on August 19, 2013

Two weeks before that, in a case that is now in its seventh year, a district court again sanctioned the EEOC for pursuing class-wide sex discrimination claims against a trucking company without any evidence.  EEOC v. CRST Van Expediting Inc., Case No. 07-CV-95-LRR (D. Iowa, Aug. 1, 2013). We blogged that case twice before, on March 21, 2012 (relating to the Eighth Circuit’s affirming the dismissal of most of the Commission’s claims) and on April 20, 2011 (the prior order for sanctions). In this instance, in well-written 40-page opinion, the court found the EEOC liable for $4.6 million in fees and costs.

The upshot? Courts are coming to question the EEOC’s tactics in class litigation. Unfortunately, the Commission remains unrepentant, and continues to press claims as in the CRST case for years after it has become apparent it has no evidence.  Hopefully, more courts will address these issues and ultimately force the Commission to adhere to its statutory mandate to attempt reasonable voluntary resolution of claims and to file suit only when it has good evidence and has done so.

The Bottom Line: The EEOC must attempt to resolve claims reasonably and in good faith and to commence suit only after those efforts have failed and it has competent evidence that the employer has actually committed the violation it is being charged with.