Duke-Ing out Pattern or Practice after Wal-Mart: The Eeoc as Fist

The Equal Employment Opportunity Commission (EEOC) has an essential role to play in bringing pattern or practice suits, and now is the time for it to assert its role. A pattern or practice claim, also called a systemic claim, is one in which an employer has regularly and purposefully discriminated against a class of employees based on their religion, race, sex, color, or national origin, such that the discrimination is the employer's standard operating procedure. In recent years, the Supreme Court has limited private litigants' access to the courts in ways that impact the ability of plaintiffclasses to assert systemic claims of employment discrimination under Title VII of the Civil Rights Act of 1964. The culmination of the Court's limitation on private Title VII pattern or practice suits was the 2011 case, Wal-Mart Stores, Inc. v. Dukes. Post Wal-Mart, the private pattern or practice class appears to be dead, and with it the advantages of pattern or practice suits for litigants and the courts. At the same time, lower courts have begun to limit the EEOC's ability to bring pattern or practice claims in its own name. Specifically, they have restricted the scope of the EEOC's class and limited remedies for an employer's pattern or practice of discrimination. What these decisions fail to recognize, however, is the EEOC's unique role and history in enforcing Title VII. As an institutional player and by design, the EEOC is best suited to litigate systemic violations of Title VII. Additionally, the EEOC's administrative process addresses many of the due process concerns of both employee-victims and employers. Preserving the EEOC's litigation authority-both in terms of the scope of employees for whom the EEOC can seek relief and the type of damages it can recover-is necessary to ensure the effective enforcement of Title VIIINTRODUCTIONThe pattern or practice employment discrimination suit, rather than being knocked out by the Supreme Court in Wal-Mart Stores, Inc. v. Dukes,1 has a natural champion in the United States Equal Employment Opportunity Commission (EEOC or "the Commission"). Many legal scholars have focused on the Supreme Court's 2011 decision in Wal-Mart and its negative impact on the future of systemic employment discrimination claims.2 In particular, commentators have viewed the Court's decision in Wal-Mart as effectively ending the private pattern or practice claim.3 In the decade after Congress enacted the Civil Rights Act of 1991,4 which amended Title VII of the Civil Rights Act of 1964,5 there "ha[d] been a substantial increase in disparate treatment class actions" due to the availability of punitive and compensatory damages in intentional discrimination cases.6 But in the years immediately preceding Wal- Mart, courts had already appeared more reluctant to certify class actions in employment discrimination cases.7 As others have pointed out, the Court's decision in Wal-Mart is just the latest manifestation of its discomfort with certifying employment discrimination claims that focus on general, widespread harms.8At the same time, the EEOC's role in the enforcement of Title VII has received relatively little attention in legal scholarship.9 And, there has been no real analysis of the EEOC's role in bringing pattern or practice claims as opposed to private litigants' role in the wake of Wal-Mart, beyond noting that the EEOC is not required to seek class certification to bring a pattern or practice claim.10 However, the EEOC itself has noted that one of the impacts of Wal-Mart is that it "may result in some of those [1.5 million] claimants filing sex discrimination charges against the company with the EEOC."11This Article begins with the background of the Title VII pattern or practice claim before turning to the advantages plaintiffs gain by bringing a discrimination claim as a pattern or practice, which include: a more favorable method of allocating burdens of proof, the ability of pattern or practice claims to address unconscious or hidden biases, the efficiencies gained in litigating as a class, and the wider array of remedies. …