Multiple Courts Criticize EEOC Behavior In Class Cases

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...