EEOC Update: The Commission Issues A Rare Opinion Letter Interpreting Requirements For Pattern Or Practice Claims

Seyfarth Synopsis: On September 3, 2020, the EEOC issued an opinion letter (only its second of the year) regarding the Commission's interpretation and enforcement of § 707(a) of Title VII, which authorizes the EEOC to sue employers engaged in a "pattern or practice" of discrimination. The opinion letter addresses two seemingly technical questions that may have a big impact on future litigation: (1) whether a pattern or practice claim under section 707(a) requires allegations of violations of section 703 or section 704 of Title VII; and (2) whether the EEOC must satisfy pre-suit requirements such as conciliation before it can bring a section 707 case. In a lengthy discussion, the EEOC ultimately concludes that the answer to both questions is "yes." The opinion letter is important for employers because – in essence – the EEOC is actually taking a somewhat surprising position limiting its enforcement powers.