Seventh Circuit rejected EEOC to Bypass Conciliation Requirement

In EEOC v. CVS Pharm., Inc., No. 14-3653, 2015 U.S. App. LEXIS 21963, the United States Court of Appeals for the Seventh Circuit rejected EEOC’s aggressive effort to sue an employer without engaging in conciliation or even alleging discrimination or retaliation.


In July 2011, CVS fired store manager Tonia Ramos. She signed the company's standard four-and-a-half page severance agreement (also known as the separation agreement), which included the release of all discrimination and retaliation claims under Title VII of the Civil Rights Act in exchange for a severance pay. The EEOC never alleged that the employee was discriminated by the employer but emphasized upon the use of its standard separation agreement. The agency also argued that the severance agreement was overly broad, misleading, and unenforceable as it interfered with employee’s rights to file charges with the EEOC as also to participate in the EEOC investigations.


EEOC claimed that under section 707(a) of Title VII, Attorney General was allowed to sue employers directly for discriminatory employment practices without having to follow under section 706, providing for conciliation and other pre-lawsuit procedures. It further argued that it had similar power as that of the Attorney General, to sue employers directly under Section 707(e).


Contrary to EEOC’s findings, Judge Flaum rejected the arguments based on the fact that section 707(e), more specifically 42 U.S.C.S. § 2000e-6, merely requires that claims alleging a pattern or practice "of discrimination" comply with Section 706 procedures.


The court highlighted that Section 707(a) allows the EEOC to challenge resistance to the full enjoyment of any of the rights secured by Title VII, 42 U.S.C.S. § 2000e-6(a). Therefore, suits under Section 707(a) must challenge practices that threaten the employee's right to be free from workplace discrimination and retaliation for opposing discriminatory employment practices—the only rights secured by Title VII. Section 707(a) does not create a broad enforcement power for the EEOC to pursue non-discriminatory employment practices that it dislikes—it simply allows the EEOC to pursue multiple violations of Title VII (i.e., unlawful employment practices involving discrimination or retaliation defined in Sections 703 and 704) in one consolidated proceeding.


A separate reason was offered by the Court for its ruling against EEOC that the separation agreement did not interfere with employees' rights to file charges or participate in EEOC proceedings. Moreover, the court stressed that the language used was sufficient as the agreement itself advised employees to consult an attorney and required employees to acknowledge that they understand and voluntarily accept the agreement.


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