U.S. Court of Appeals for the Fifth Circuit

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Petition for rehearing en banc denied

April 28, 2017

Click here to view the order.

Fifth Circuit upholds EEOC’s novel pattern or practice theory and refusal to conciliate

June 17, 2016

The court held that the EEOC can bring pattern-or-practice claims under Section 706 of Title VII. Further, it held that the agency can seek punitive damages during a phase one trial of a pattern-or-practice case. Finally, the court concluded that the EEOC fulfilled its conciliation obligations under the Mach Mining standard when it notified the defendants that it sought class-wide relief without identifying class members.

U.S. Chamber files amicus brief urging reversal

June 26, 2015

The U.S. Chamber joined the Retail Litigation Center, Inc. in filing an amicus brief in the Fifth Circuit regarding (1) whether the EEOC may bring a pattern or practice claim seeking damages under Section 706 of Title VII but rely on the plaintiff-friendly burden shifting framework developed in Teamsters v. United States under Section 707, and (2) whether the EEOC’s obligation to conciliate includes the obligation to identify the specific members of an alleged class.

The brief explains that allowing the EEOC to utilize the Teamsters framework to seek damages under Section 706 would distort the carefully calibrated statutory scheme that Congress set up (which reserves pattern or practice claims for Section 707 cases, where no damages are available). This distortion would make it even easier for EEOC to coerce large settlements by threatening massive monetary liability based on alleged statistical imbalances but without specifying any of the predicate facts. The brief further points out that the EEOC filed this suit without ever investigating or identifying the concrete “pattern or practice” at issue or the individuals allegedly aggrieved by it. Allowing the EEOC to file suit in these circumstances, the brief argues, would further disregard Congress’s carefully calibrated statutory scheme and allow EEOC to unfairly pressure employers into settlements.

Eric S. Dreiband, Yaakov M. Roth, and Haley A. Wojdowski of Jones Day served as counsel for the amici.

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