Seyfarth Synopsis: A federal district court in Illinois recently granted the EEOC's motion for partial summary judgment in EEOC v. Dolgencorp, LLC, No. 13-CV-4307 (N.D. Ill. Apr. 10, 2017), relative to two defenses advanced by an employer, including: (1) the EEOC's claims were barred as beyond the scope of the charges of discrimination and investigation; and (2) the EEOC failed to satisfy its Title VII pre-suit duty to conciliate with the employer. The ruling should be required reading for any employer facing or engaged in litigation with the Commission.
An increasingly common issue in EEOC litigation against employers involves the scope of the Commission's lawsuits as related to the charges of discrimination, as well as the EEOC's conciliation efforts, or lack thereof. In EEOC v. Dolgencorp, LLC, No. 13-CV-4307 (N.D. Ill. Apr. 10, 2017), the EEOC moved for partial summary judgment regarding two defenses enumerated by the defendant, Dolgencorp, LLC ("Dollar General"): (1) the EEOC's claims were barred as beyond the scope of the charges of discrimination and investigation; and (2) the EEOC failed to satisfy its Title VII pre-suit duty to conciliate with the employer. On April 10, 2017, Judge Andrea R. Wood of the U.S. District Court for the Northern District of Illinois granted the EEOC's motion for partial summary judgment as to these defenses asserted by Dollar General.
As Judge Wood acknowledged, many courts across the country have embraced defenses asserted by employers relating to the sufficiency of the EEOC's investigation. However, this ruling demonstrates that not all courts may be as receptive to those arguments.
Case Background
Two former Dollar General employees filed charges of discrimination with the EEOC regarding Dollar General's allegedly discriminatory use of criminal background checks in hiring and firing determinations. Id. at 1. The EEOC investigated and determined that there was reasonable cause to believe that Dollar General had engaged in employment discrimination on the basis of race. The parties then engaged in written and oral communications regarding the alleged discrimination, which did not result in a conciliation agreement acceptable to the EEOC. Id. at 2. Thereafter, the EEOC brought a lawsuit against Dollar General under Title VII.
Amongst its enumerated defenses, Dollar General asserted that the EEOC's claims were barred as beyond the scope of the charges of discrimination and investigation (its 7th enumerated defense), and that the EEOC failed to satisfy the statutory precondition for bringing suit when it failed to conciliate with Dollar General (its 8th enumerated defense). The EEOC moved for partial summary judgment as to Dollar General's two enumerated defenses. Id. at 3. The EEOC contended that, on the undisputed facts, these two defenses failed as a matter of law.
The Court's Decision
The Court granted the EEOC's motion for partial summary judgment regarding Dollar General's two enumerated defenses. Dollar General's seventh enumerated defense relied upon two separate propositions: first, the EEOC's claims were barred because they went beyond the claims delineated in the charges of discrimination that generated the EEOC's lawsuit; and second, the EEOC's claims were barred because the EEOC failed to investigate those claims adequately prior to bringing suit. Id. at 4. The Court rejected the first proposition, holding that when the EEOC files suit, it is not confined to claims typified by those of the charging party, and further, that any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable. Id. As to the second proposition, the Court similarly opined that the Seventh Circuit has held that if courts may not limit a suit by the EEOC to claims made in the administrative charge, they likewise cannot limit the suit to claims that are found to be supported by the evidence obtained in the Commission's investigation. Id. Accordingly, the Court rejected Dollar General's defenses insofar as it sought to dismiss the EEOC's claims because they went beyond the charges of discrimination or because they were not subject to an adequate pre-suit investigation. Id. at 4-5.
In addition, the Court addressed Dollar General's eighth enumerated defense, which contended that the suit could not go forward because the EEOC did not satisfy its pre-suit statutory obligation to conciliate. The EEOC sent two Letters of Determination to Dollar General that stated that the EEOC found reasonable cause to believe that Dollar General engaged in discrimination in violation of Title VII because, through application of its background check policy, a class of African-American applicants and employees were not hired, not considered for employment, or discharged. Dollar General argued that this notice of the charge was not specific enough because it failed to identify the persons allegedly harmed and to identify the allegedly discriminatory practice.
Rejecting Dollar General's argument regarding the specificity of notice, the Court held that the EEOC's letters clearly set forth that there were African-American applicants and employees who were harmed by the allegedly discriminatory practice. Id. at 6. Further, the Court opined that as the Seventh Circuit has explained, the sufficiency of the EEOC's investigation was not a matter for the judiciary to second-guess. Dollar General also argued that the EEOC failed to specifically describe the allegedly discriminatory practice, and that merely pointing to the background check policy was not sufficient. The Court rejected this argument, holding that the EEOC's notice was sufficient since it identified the two complainants and further put Dollar General on notice that the EEOC's allegations related to African-American applicants and employees that were not hired, not considered for employment, or discharged due to failing a background check. Id. at 8-9.
Finally, Dollar General contended that the EEOC's conciliation discussions were inadequate because the EEOC did not provide Dollar General with an opportunity to remedy the allegedly discriminatory practice. Id. at 9. Citing Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1655-56 (2015) (which we analyzed here), the Court refused to examine the sufficiency of the EEOC's investigation, noting it was beyond the scope of its review. Id. The Court thus rejected Dollar General's argument that the EEOC did not adequately engage the employer in conciliation discussions.
Accordingly, the Court granted the EEOC motion for partial summary judgment on Dollar General's seventh and eighth enumerated defenses.
Implications For Employers
While the Court did not find in the employer's favor, other courts have routinely held the EEOC accountable in instances where it did not fulfill its pre-suit obligations. With rulings such as this one, it can be expected that the EEOC will continue to test courts' willingness to force the Commission to abide by its statutory duties under Title VII. As such, employers should continue to be aggressive in attacking instances where the EEOC improperly expands its lawsuits beyond charges or fails to conciliate.
Readers can also find this post on our EEOC Countdown blog here.
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