{"id":10724,"date":"2026-05-19T04:49:04","date_gmt":"2026-05-19T04:49:04","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/equal-employment-opportunity-commission-issues-rare-opinion-letter-curbing-its-enforcement-authority-for-pattern-or-practice-claims\/"},"modified":"2026-05-19T04:49:04","modified_gmt":"2026-05-19T04:49:04","slug":"equal-employment-opportunity-commission-issues-rare-opinion-letter-curbing-its-enforcement-authority-for-pattern-or-practice-claims","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/equal-employment-opportunity-commission-issues-rare-opinion-letter-curbing-its-enforcement-authority-for-pattern-or-practice-claims\/","title":{"rendered":"Equal Employment Opportunity Commission Issues Rare Opinion Letter Curbing Its Enforcement Authority for \u201cPattern or Practice\u201d Claims"},"content":{"rendered":"\n
\n
\n On September 3, 2020, the Equal Employment Opportunity Commission (\u201cEEOC\u201d) issued an Opinion Letter<\/a><\/strong> regarding the EEOC\u2019s interpretation and\u00a0 enforcement of Section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. \u00a7 2000e-6, which authorizes the EEOC to bring a civil action when it has \u201creasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured [under Title VII].\u201d\u00a0 The Opinion Letter announced that (i) Section 707(a) does not provide an independent basis for a lawsuit, and (ii) the EEOC is required to meet certain administrative prerequisites, including pre-suit conciliation, before filing suit under Section 707.\u00a0 The Opinion Letter explained that, although the EEOC had taken differing positions in a \u201csmall number of cases\u201d and that its prior arguments were \u201creasonable,\u201d its newly announced interpretation reflects \u201cthe better reading of the statutory text\u201d of Title VII.<\/p>\n

First<\/em>, the EEOC clarified that Section 707(a) does not provide an independent cause of action under Title VII.\u00a0 In other words, lawsuits brought by the EEOC under Section 707(a) must be tethered to an alleged pattern or practice of conduct that violates Section 703, which prohibits discrimination on the basis of \u201crace, color, religion, sex or national origin,\u201d[1]<\/a> or Section 704, which prohibits retaliation against an employee \u201cbecause he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.\u201d[2]<\/a>\u00a0<\/p>\n

The Opinion Letter narrows the EEOC\u2019s prior interpretation of Section 707(a), under which the EEOC had previously filed lawsuits challenging practices that it believed facilitated unlawful \u201cresistance\u201d of Title VII rights but may not themselves have constituted discrimination or retaliation in violation of Sections 703 and 704, respectively.\u00a0 For example, in EEOC <\/em>v. Doherty Enterprises, Inc.<\/em>, the EEOC argued that an employer\u2019s use of arbitration agreements to deter employees from filing charges of discrimination or cooperating with the EEOC constituted a \u201cpattern and practice of resistance\u201d in violation of Section 707(a).\u00a0 The district court agreed with the EEOC, finding that \u201ca resistance claim is not limited to cases involving an unlawful employment practice [i.e., discrimination and retaliation].\u201d[3]<\/a>\u00a0 In EEOC <\/em>v. CVS Pharmacy, Inc.<\/em>, the EEOC took a similar position and argued that Section 707(a) gives it \u201cbroad power to sue without\u00a0.\u00a0.\u00a0.\u00a0alleging that the employer engaged in discrimination\u201d and claimed that a severance agreement limiting employees\u2019 right to file charges with the EEOC violated Section 707(a).[4]<\/a>\u00a0 The Seventh Circuit, the only court of appeals to have considered the issue, rejected the EEOC\u2019s position, finding that \u201cSection 707(a) does not create a broad enforcement power for the EEOC to pursue non-discriminatory employment practices that it dislikes\u201d and that it \u201csimply allows the EEOC to pursue multiple violations of Title VII (i.e., unlawful employment practices involving discrimination or retaliation defined in Sections 703 and 704) in one consolidated proceeding.\u201d[5]<\/a><\/p>\n

In a reversal of the EEOC\u2019s broader interpretation of Section 707(a), the Opinion Letter adopts the Seventh Circuit\u2019s reasoning in CVS Pharmacy<\/em>.\u00a0 The Opinion Letter instructs that Section 707(a) does not give the EEOC \u201cwide-ranging power to bring suit against undefined practices\u201d but gives the EEOC \u201cthe important power of acting against acts of discrimination in violation of sections 703 or 704.\u201d\u00a0 The Opinion Letter also notes that Section 707(e) of Title VII confirms its interpretation of Section 707(a) because it limits the EEOC\u2019s authority to act upon \u201ca pattern or practice of discrimination<\/em>.\u201d[6]<\/a><\/p>\n

Second<\/em>, the Opinion Letter explains that Section 706\u2019s pre-suit procedural requirements apply to Section 707, including that (i) a charge must precede an action and (ii) the EEOC must attempt to conciliate any claim before filing suit. \u00a0In reaching this determination, the EEOC again relied on Section 707(e), which provides that actions brought under Section 707 be \u201cconducted in accordance with the procedures set forth in [Section 706].\u201d[7]<\/a>\u00a0<\/p>\n

The Opinion Letter provides greater protections to employers by curbing the EEOC\u2019s ability to challenge employment practices which do not constitute discrimination and retaliation under Sections 703 and 704 and bolstering procedural safeguards by requiring confidential pre-suit conciliation prior to the EEOC filing suit.\u00a0 Indeed, even if a court were to reach a different interpretation of Section 707, an employer\u2019s good faith reliance on the Opinion Letter is a defense from liability for so long as the policies announced in the Opinion Letter remain in effect.\u00a0 It is important to note, however, that the five-member commission currently has two vacant seats, and policies may change with the composition of the commission or changes in the administration. <\/p>\n

\u00a0 <\/p>\n
\n
[1]<\/a> See <\/em>42 U.S.C. \u00a7 2000e\u20132.<\/div>\n
[2]<\/a> See <\/em>42 U.S.C. \u00a7 2000e\u20133.\u00a0<\/div>\n
[3]<\/a> See EEOC <\/em>v. Doherty Enters., Inc.<\/em>, 126 F. Supp. 3d 1305, 1311 (S.D. Fla. 2015).<\/div>\n
[4]<\/a> See EEOC <\/em>v. CVS Pharmacy, Inc.<\/em>, 809 F.3d 335, 337 (7th Cir. 2015).<\/div>\n
[7]<\/a> See <\/em>42 U.S.C. \u00a7 2000e\u20136(e) (\u201cAll such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title.\u201d).<\/div>\n<\/p><\/div>\n<\/p><\/div>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

On September 3, 2020, the Equal Employment Opportunity Commission (\u201cEEOC\u201d) issued an Opinion Letter regarding the EEOC\u2019s interpretation and\u00a0 enforcement of Section 707(a) of Title VII of the […]<\/p>\n","protected":false},"author":1,"featured_media":10725,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[2475,300,1322,3712,451,1385,7973,2684,1968,5612,563,2441,1028,2126],"class_list":["post-10724","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-authority","tag-claims","tag-commission","tag-curbing","tag-employment","tag-enforcement","tag-equal","tag-issues","tag-letter","tag-opinion","tag-opportunity","tag-pattern","tag-practice","tag-rare"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10724","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=10724"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/10724\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/10725"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=10724"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=10724"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=10724"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}