EEOC Not Required to Conciliate on Behalf of Individuals Before Bringing Class Lawsuit: Ninth Circuit | Practical Law

EEOC Not Required to Conciliate on Behalf of Individuals Before Bringing Class Lawsuit: Ninth Circuit | Practical Law

In Arizona ex rel. Horne v. The Geo Group, Inc., the US Court of Appeals for the Ninth Circuit held that the Equal Employment Opportunity Commission (EEOC) is not required to conciliate claims on behalf of each individual employee before bringing a lawsuit on behalf of a class.

EEOC Not Required to Conciliate on Behalf of Individuals Before Bringing Class Lawsuit: Ninth Circuit

by Practical Law Labor & Employment
Published on 18 Mar 2016 • USA (National/Federal)
In Arizona ex rel. Horne v. The Geo Group, Inc., the US Court of Appeals for the Ninth Circuit held that the Equal Employment Opportunity Commission (EEOC) is not required to conciliate claims on behalf of each individual employee before bringing a lawsuit on behalf of a class.
On March 14, 2016, in Arizona ex rel. Horne v. The Geo Group, Inc., the US Court of Appeals for the Ninth Circuit held, among other things, that the EEOC is not required to conciliate claims on behalf of each individual employee before bringing a lawsuit on behalf of a class, and that the EEOC meets its pre-class action suit conciliation requirements by attempting to conciliate on behalf of an identified class of individuals before filing a class action lawsuit. The Ninth Circuit relied in part on the US Supreme Court's 2015 decision in Mach Mining. ( (9th Cir. Mar. 14, 2016).)

Background

On June 5, 2009, Alice Hancock, a female corrections officer for a corrections and detention management company (Geo), filed a discrimination charge with the EEOC and the Arizona Civil Rights Division (Division), alleging that she was inappropriately touched by a male Sergeant. Three months later, Geo terminated Hancock's employment. The Division and the EEOC investigated the charge, and on May 19, 2010, the Division issued a Reasonable Cause Determination (adopted by the EEOC) that:
  • Substantiated Hancock's sexual harassment, hostile work environment, and retaliation allegations.
  • Identified other incidents of misconduct and inappropriate conduct by male corrections officers against Hancock and other female corrections officers.
  • Found that Geo:
    • did not take reasonable steps to correct and prevent the harassment of female officers; and
    • subjected Hancock and a class of other similarly situated female officers to harassment and retaliation.
The EEOC and the Division attempted to conciliate Hancock's claims with Geo, including making a written proposal to Geo to settle the claims of Hancock and other aggrieved Geo employees (whom the Division/EEOC did not identify). The conciliation was unsuccessful and the EEOC and the Division filed civil actions that were consolidated into one action in a US district court.
The district court:
  • Dismissed the claims of female officers who were not specifically identified in the EEOC's and the Division's Reasonable Cause Determination.
  • Held that the EEOC and the Division were required to identify the female officers and attempt to conciliate their claims before bringing a lawsuit on their behalf.
  • Granted summary judgment to Geo on the claims of several additional female officers who were discovered during conciliation, finding that their claims were untimely because they were not filed within 300 days of the Reasonable Cause Determination.
  • The EEOC and the Division appealed.

Outcome

The Ninth Circuit vacated the district court's decision and reinstated the female officers' claims, holding that:
  • The EEOC:
    • is not required to conciliate claims on behalf of each individual employee before bringing a lawsuit on behalf of a class; and
    • meets its pre-class action suit conciliation requirements by attempting to conciliate on behalf of an identified class of individuals before filing a class action lawsuit.
  • The EEOC and the Division complied with their conciliatory requirements under both Title VII and the Arizona Civil Rights Act (ACRA).
  • The district court erred in limiting the timeframe for employees to allege discriminatory acts in an EEOC class action to those acts occurring within 300 days before the EEOC's Reasonable Cause Determination. Hancock's charge put Geo on notice of potential classwide allegations, and therefore allegations of discrimination, harassment, or retaliation against other female employees occurring within 300 days before the filing of Hancock's charge were timely.
  • Aggrieved employees need not file a new EEOC charge if their claim is encompassed in the EEOC's Reasonable Cause Determination or is "like or reasonably related to" the initial charge.
The Ninth Circuit noted that:
  • The EEOC's duty to conciliate unlawful employment practices before filing a lawsuit is subject to limited judicial review, focusing solely on whether the EEOC complied with its statutory obligations (Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1653 (2015)).
  • The US Supreme Court held in Mach Mining that the EEOC satisfies its pre-suit conciliation requirements by identifying:
    • what the employer has done to aggrieved employees; and
    • which employees (or what class of employees) have been aggrieved as a result of the employer's actions.
    (Mach Mining, 135 S. Ct. at 1656.)
  • Other circuit courts have held that the EEOC satisfies its pre-suit conciliation requirements by providing an employer notice that it is investigating or pursuing class claims (Serrano v. Cintas Corp., 699 F.3d 884, 904 (6th Cir. 2012); EEOC v Rhone-Poulenc, Inc., 876 F.2d 16, 17 (3d Cir. 1989)).
  • If the EEOC were required to conciliate on behalf of every aggrieved individual employee in a class, that requirement would effectively prevent the EEOC from pursuing claims on behalf of unnamed class members. It would be "illogical" for the EEOC to have a narrower ability to seek class relief than private litigants.
  • Title VII:
    • requires that a charge be filed "within three hundred days after the alleged unlawful employment practice occurred"; and
    • does not refer at all to the EEOC's reasonable cause determination.
    (42 U.S.C. § 2000e-5(e)(1).)

Practical Implications

The Ninth Circuit's decision in Arizona ex rel. Horne v. The Geo Group, Inc. holds that the EEOC meets its pre-suit conciliation obligations by attempting to conciliate on behalf of an identified class of individuals before filing a class action lawsuit. This decision resolves an ambiguity from Mach Mining and makes it easier for the EEOC to pursue class action discrimination lawsuits in the Ninth Circuit on behalf of a larger number of employees than it would under an alternative interpretation. It remains to be seen whether other circuits will adopt the Ninth Circuit's interpretation of the EEOC's conciliation obligations before filing class action lawsuits.
This decision also may make it more difficult for employers in the Ninth Circuit to know when statutes of limitations on discrimination claims have run. Employees who fail to file timely EEOC charges may have their otherwise stale claims reinvigorated if they are swept into EEOC class actions. This decision suggests that the EEOC need only determine those employees' uncharged claims are arguably related to another employee's timely charge that refers to discrimination or harassment against other employees.