Ohio Judge Thwarts EEOC Effort To Expand Pattern and Practice Lawsuits

In a story widely reported in the news last year, the EEOC sued Kaplan Higher Education Corporation, a nationwide provider of postsecondary education, alleging that it engaged in a pattern or practice of unlawful discrimination by refusing to hire a class of black job applicants nationwide.  The suit was based on the allegation that since at least 2008, Kaplan had rejected job applicants based on their credit history and that the practice had an unlawful discriminatory impact because of race.  One issue that arose in the case was the proper scope of the class of claimants in pattern or practice suits brought by the EEOC.  Specifically, whether individuals claiming to aggrieved more than 300 days before the filing of the charge that triggered the EEOC’s investigation could be included in the class.  This week, the Court answered that question in the negative, holding that the plain language of Title VII does not carve out an exception for the EEOC to bring untimely claims.

Littler has done a thorough analysis of the case that is well worth reading.  They note that:

Finding the plain language of the law controlling, the district judge in Kaplan narrowed the "class" of potential claims by barring as untimely those claimants who may have been affected more than 300 days before the operative charge giving rise to the lawsuit. Indeed, the court agreed with another recent decision in the District of Maryland in explaining that "had Congress intended to allow the EEOC to resurrect the stale claims of individuals who did not timely file charges, it would have expressly so stated." Other courts have even opined that this 300-day time limit should begin to run for claims arising within 300 days of the employer first being made aware of a broader EEOC investigation into possible "class" or pattern or practice claims, and not necessarily from the earlier date that an individual charge was filed (i.e., if a pattern or practice of discrimination, or an alleged discriminatory policy was not asserted in the original charge).

In the Kaplan case and in other cases involving older "class" claims, the EEOC relied on the policy argument that, given its enforcement mission and power to bring pattern or practice claims, Congress did not intend to limit the EEOC's ability to reach back beyond the charge filing limit to attempt to remedy alleged instances of discrimination. Some district courts have sided with the EEOC on this question, and no U.S. Court of Appeals has decided the issue. For this reason, given the EEOC's emphasis on bringing the more sweeping pattern or practice claims on behalf of larger "classes" of claimants, the EEOC can be expected to continue asserting that it has no time restrictions in recruiting and proceeding on behalf "class" members similarly affected by the challenged pattern or practice.

I agree that the EEOC will continue to try to push the envelope in pattern and practice cases but this decision is good news for employers, particularly in conjunction with other courts’ recent willingness to sanction the EEOC for overreaching



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