United States: Conciliation Made Easy? The Ninth Circuit Reinstates EEOC Pattern Or Practice Action In Light Of Mach Mining

In Arizona Ex Rel. Horne v. The Geo Group, No. 13-16081 (9th Cir. Mar. 14, 2016), the U.S. Court of Appeal for the Ninth Circuit vacated the district court's summary judgment orders and reinstated a pattern or practice action brought by the Equal Employment Opportunity Commission and the Arizona Civil Rights Division against The Geo Group, Inc. ("Geo").  Most significant is the Ninth Circuit's ruling that the EEOC and the Division sufficiently conciliated its class claims in light of Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015).  Further, the Ninth Circuit held that Title VII's 300-day limitations period starts to run from the date the first aggrieved employee files an agency charge and that, in an EEOC pattern or practice action, an aggrieved employee is not required to file a new agency charge for acts occurring after the reasonable cause determination if the claims are "like or reasonably related" to the initial charge.

In sum, the Ninth Circuit's decision emphasized that the EEOC deserves "flexibility" and "discretion" to investigate and litigate claims with limited interference from the courts, and shows that Mach Mining, while helpful, is not a panacea for all overreaching agency conduct.

Background

On June 5, 2009, a female corrections officer, Alice Hancock, filed a charge of discrimination with the Arizona Civil Rights Division ("the Division") against her employer The Geo Group, Inc. alleging gender-based discrimination and harassment as well as retaliation for reporting such conduct.  Id. at 7.  After agency investigations led to identification of other potential aggrieved employees, the Division issued a reasonable cause determination concluding Geo had violated Arizona state laws prohibiting discrimination, harassment, and retaliation against "Hancock and a class of female employees" at two correctional facilities operated and managed by Geo.  Id. at 8-9.  After conveying a settlement proposal to Geo and completing a conciliation session, the Division and the EEOC filed suit on behalf of Hancock and similarly situated employees at the two correctional facilities.  Id. at 10.  The District Court then granted Geo's motions for partial summary judgment dismissing, in part, the claims of several employees who were not identified until after filing of the complaint on the basis that these individuals' claims were not conciliated, and also, dismissing several employees who had not alleged acts within 300 days of the reasonable cause determination.  Id. at 11-12.

The Ninth Circuit's Review And Decision

In reversing the District Court's holding that the EEOC must identify and conciliate on behalf of each aggrieved employee prior to bringing a pattern or practice action, the Ninth Circuit began by analyzing the U.S. Supreme Court's ruling in Mach Mining.  While recognizing that the EEOC's pre-suit conciliation efforts are subject to judicial review, the Ninth Circuit emphasized the Supreme Court's discussion on the "limited" and "relatively bare bones review" process, and further, reiterated that any analysis of good faith efforts would improperly extend such review.  Id. at 15-17.  The Ninth Circuit held that pre-suit conciliatory requirements are satisfied in an EEOC pattern or practice action if there have been attempts to conciliate "on behalf of an identified class of individuals."  Id. at 18.  The Ninth Circuit refused to impose any additional requirements, such as identification of each aggrieved employee, on the grounds that the Supreme Court in Mach Mining did not require anything more.   Id. at 18-19.

The Ninth Circuit further reasoned that requiring conciliation on an individual basis would effectively bar recovery on behalf of those class members not yet identified at the time of filing suit, noting private litigants are able to do.  Id. at 19.  The Ninth Circuit recognized, however, that there may be limits where a class extends nationwide, but the investigation is based on less than a dozen employees.  Id. at 19 fn. 6.  Here, such limitation did not exist where there was investigation into multiple aggrieved employees in two facilities, the two facilities were identified in the reasonable cause determination and part of pre-suit conciliations efforts, and the pattern or practice action was limited in scope to the two facilities.  Id.  The Ninth Circuit additionally stated its holding is consistent with "the Supreme Court's broad interpretation of the EEOC's enforcement powers" and its prior acknowledgement of case law holding "the EEOC is not required to provide documentation of individual attempts to conciliate on behalf of each potential claimant in a [pattern or practice action]."  Id. at 19-20.

Next, the Ninth Circuit reversed the dismissal of employees who had not alleged acts within 300 days of the Division's reasonable cause determination, holding that  the timeliness of other aggrieved employees' claims in an EEOC pattern or practice action is calculated from 300 days prior to the first aggrieved employee's charge, the same as for private litigants.  Id. at 24.  The Ninth Circuit further held that an aggrieved employee in an EEOC pattern or practice action who alleges unlawful conduct occurring after the reasonable cause determination is not required to file a new agency charge if the claim is "like or reasonably related" to the initial charge.  Id. at 27.  As such, the Ninth Circuit determined that the District Court's per se exclusion of any discrimination or retaliation that occurred after the date of the reasonable cause determination was improper.  Id. at 28-29.

Implications For Employers

The Ninth Circuit's ruling in The Geo Group, Inc. appears to be a win for the EEOC, but it is not without limits as the pattern or practice action against Geo dealt with a more limited class of alleged victims.  While the Ninth Circuit ruled that the EEOC does not need to conciliate on behalf of each aggrieved employee by name, it also noted there must be a sufficiently clear scope of the class of alleged victims, and further cautioned that any investigation must be related in scope to the actual litigation.  Time will show how far the EEOC tries to push the ruling in The Geo Group, Inc. as well as the Ninth Circuit's interpretation of Mach Mining to broaden the scope of any future pattern or practice actions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions