EEOC v. Freeman

Filing 17

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on March 1, 2010, before Judge Roger W. Titus. Court Reporter/Transcriber Tracy Dunlap, Telephone number 301.344.3912. Total number of pages filed: 63. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER... Redaction Request due 4/1/2010. Redacted Transcript Deadline set for 4/12/2010. Release of Transcript Restriction set for 6/9/2010. (Attachments: # 1 Appendix)(trd, Court Report)

1 U N I T E D STATES DISTRICT COURT FOR THE D I S T R I C T OF MARYLAND ---------------------------x EEOC, : Plaintiff : : : vs :Civil Action: RWT-09-2573 : : FREEMAN, : : Defendant. : ---------------------------x Monday, March, 2010 Greenbelt, Maryland T h e above-entitled action came on for a Motions H e a r i n g Proceeding before the HONORABLE ROGER W. TITUS, United States District Judge, in courtroom 2C, commencing a t 9:05 a.m.

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APPEARANCES: O n behalf of the Plaintiff: R O N A L D L. PHILLIPS, Esquire O n behalf of the Defendant: D O N A L D R. LIVINGSTON, Esquire P A U L E. MIRENGOFF, Esquire

T r a c y Rae Dunlap, RPR, CRR O f f i c i a l Court Reporter

( 3 0 1 ) 344-3912

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INDEX

Page 63

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T H E CLERK:

The matter now pending before this

c o u r t is civil docket RWT-09-2573; EEOC versus Freeman. W e ' r e here for the purpose of a motions hearing. Counsel, please identify yourselves for the Plaintiffs first. M R . PHILLIPS: Your Honor, Ron Phillips for the

M R . LIVINGSTON: b e h a l f of Freeman. MR. MIRENGOFF: Freeman. T H E COURT:

Your Honor, I'm Don Livingston on

And Paul Mirengoff on behalf of

We're here on your motion.

I will be

g l a d to hear from you. M R . LIVINGSTON: Good morning. Judge, the issue

t h a t ' s presented by our partial Motion to Dismiss is w h e t h e r , when the EEOC sues under Section 707 of Title V I I , the EEOC can seek remedies for hiring decisions that w e r e made more than 300 days prior to the filing of the c h a r g e that underlies the lawsuit. I n this case, an individual named Katrina Vaughan f i l e d a charge of discrimination with the EEOC in January o f 2008. The charge alleged that the defendant refused The

t o hire Ms. Vaughan because she's African-American.

E E O C investigated the charge and determined that there w a s cause to believe that discrimination had occurred in

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h i r i n g against three classes, all men, all A f r i c a n - A m e r i c a n s of either gender, and all Hispanics of e i t h e r gender. The only favored group, I believe under E E O C ' s finding, would be non-minority females. T h e EEOC attempted to settle the cause, finding w i t h the defendant. And when the matter couldn't be

s e t t l e d , the EEOC filed this lawsuit in 2009. T h e lawsuit alleges that the company has a policy t h a t goes back to 2001 of making hiring decisions based o n criminal histories and credit checks that resulted in u n i n t e n t i o n a l discrimination against men and minorities. T h e EEOC brings this lawsuit under two statutes, t w o statutory sections of Title VII. And these are Title

V I I , Section 706 and Title VII, Section 707. U n d e r Section 707, they challenge all hiring d e c i s i o n s since February 2001, which extends back seven y e a r s before the filing of the charge of Ms. Vaughan, t h a t sets the prerequisite for this lawsuit. N o w , I have a briefing book for Your Honor that c o n t a i n s some cases that I'm going to refer to in my argument. T H E COURT: Yeah. Please pass it up. I've already provided a copy to

M R . LIVINGSTON: c o u n s e l for EEOC.

I think, in considering this issue, that it's

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i m p o r t a n t to understand the historical context within w h i c h Congress gave EEOC litigation authority, both under 7 0 6 and 707. As Your Honor knows, the Civil Rights Act When Congress enacted Title VII, the

w a s passed in 1964.

C i v i l Rights Act, it did not entrust the EEOC to bring lawsuits. The EEOC was not given litigation authority.

B u t one federal agency of the United States government w a s , and that was the Department of Justice. T h e Department of Justice's litigation authority w a s given to it under Section 707 of Title VII, and I've i n c l u d e d a copy of that provision under Tab 1 in the booklet. 7 0 7 ( a ) of Title VII, enacted in 1964, gives the a t t o r n e y general the authority to sue both public and p r i v a t e employers under Title VII when the attorney g e n e r a l believed that the employer was engaged in a p a t t e r n or practice of discrimination, in violation of t h e Act. N o w , there were no conditions precedent attached t o the authority of the attorney general to sue private o r public employers. That changed in 1972. In 1972,

C o n g r e s s amended a different Section of Title VII, and it a m e n d e d Section 706. And it amended Section 706 to allow

t h e EEOC to bring discrimination lawsuits against private employers.

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I ' v e got a chart of 706 under Tab 3. c o u l d sue private employers.

The EEOC

But based upon four

c o n d i t i o n s precedent under 706(e), a charge has to be f i l e d against the employer within 180 or 300 days after t h e unlawful employment practice occurred. Under 706(b),

t h e EEOC has to have investigated the charge, made a d e t e r m i n a t i o n that it believed that there was -- that c a u s e exists to believe that discrimination had occurred; a n d , three, the EEOC has to have attempted to settle the d i s p u t e with the employer. If those conditions precedent

h a d been established, a charge, investigation, cause f i n d i n g , conciliation, then the EEOC could sue an e m p l o y e r under 706 for employment discrimination under T i t l e VII. N o w , Your Honor, having amended Title VII to give E E O C litigation authority, Congress now had under -- if 7 0 7 wasn't changed, they would have had two federal a g e n c i e s empowered to sue employers under employment d i s c r i m i n a t i o n under Title 707. The way that was

a d d r e s s e d in the 1972 amendments is that Congress amended S e c t i o n 707, the portion of the statute that gave the J u s t i c e Department authorization to sue. G o i n g back to Tab 1, you will see the amendments t h a t were created to 707 that did this. Section 707(c)

s a y s , in the middle of the chart, "The functions of the

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a t t o r n e y general under this section shall be transferred t o the EEOC," but it doesn't stop there. It doesn't say

t h a t the functions of the attorney general are just t r a n s f e r r e d to the EEOC. It says the EEOC shall carry

o u t such functions in accordance with Subsection (e) of t h i s section. N o w , Congress could have just given the EEOC the s a m e powers that the Department of Justice had, which was t o sue EEOC without any of the condition precedents which w e r e established under Section 706, but Congress didn't. I t said that the functions of the attorney general must b e carried out in accordance with Subsection (c) of -S u b s e c t i o n (e) of 707. A n d the next provision I have on this page is 707(e). And what 707(e) says is that pattern or practice

a c t i o n s have to be pursued pursuant to, or pardon me, in a c c o r d a n c e with the procedures set forth in 706 of this Act. It's our view that nothing could be plainer; that

i n enacting 707(e), Congress created an integrated system f o r EEOC cases. It didn't establish a dual track system.

I t didn't say to the EEOC under 706, you have to go t h r o u g h a multi-step procedure before you can file suit, b u t under 707 you have the same powers as the attorney again. This is very specific that the EEOC did not have

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t h e powers of the attorney general but had to pursue its c l a i m s pursuant to Section 707(e). I hope I've made

c l e a r but, if not, I wish to remind Your Honor that 7 0 7 ( e ) was a creation of the 1972 Act. It didn't apply

w i t h respect to the cases that could be brought by the a t t o r n e y general prior to the 1972 amendments. N o w , why did Congress enact 707(e) instead of just c o n t i n u i n g to allow pattern or practice cases to be b r o u g h t without regard to the provisions of Section 706, t h e way that the Justice Department brought them? Well,

t h a t ' s because Congress believed that the procedures of 7 0 6 serve valuable purposes. F o r e m o s t among these valuable purposes are the p r o m p t notification of employers that they were accused o f discrimination and the prompt efforts to resolve a c c u s a t i o n s of discrimination through conciliation. o f the Sections 706 procedures, which is incorporated i n t o Section 707 by 707(e), is -- I know. Pardon me for One

t h r o w i n g all of these numbers and letters out; I know it g e t s confusing. T H E COURT: That's fine. But, 706(e) of Title VII requires

M R . LIVINGSTON:

a timely filed charge of discrimination before the EEOC c a n act. The charge is what triggers the process. We've

i n c l u d e d in the booklet, under Tab 7, the Occidental Life

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I n s u r a n c e case by the Supreme Court.

In this case the

S u p r e m e Court held that the EEOC is not subject to a s t a t u t e of limitations in the traditional sense, in that o n c e a charge has been filed with EEOC there is no time w i t h i n which EEOC has to process that charge and sue an employer. B u t what the Court recognizes on Page 11 of the s l i p opinion that I've included in the book, it's the h i g h l i g h t e d section at the bottom of that page, is that t h e Supreme Court recognized that when Congress enacted T i t l e VII, it put the limitations period at the front end o f the process. The limitations period is the period

w i t h i n which the charge has to be filed under 706(e), and t h e Supreme Court recognized that Congress viewed it as e x t r e m e l y important that the charge be filed promptly. R e m e m b e r , the whole overall purpose of Title VII w a s the voluntary resolution of the employment d i s c r i m i n a t i o n disputes expeditiously. C o u r t said in Occidental: Here is what the

"Congress did express concern

f o r the need for time limitations in a fair operation of t h e Act, but that concern was directed entirely to the i n i t i a l filing of the charge with the EEOC and prompt n o t i f i c a t i o n thereafter to the alleged violater." T h e bills passed in both the House and the Senate c o n t a i n short time periods within which charges were to

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b e filed with the EEOC and notice given to the employer. I t is the protection afforded by this time period that t h e EEOC now wants to eliminate in cases that it c h a r a c t e r i z e s as "pattern or practice cases." L e t me see if I can make an effort at cutting t h r o u g h the haze and narrowing the issue before the Court. I n this circuit, if the 300-day charge filing p e r i o d in Section 706(e) applies to this case, then the E E O C cannot challenge hiring decisions that predate March 2007. That's the issue before the Court. Now, EEOC

a r g u e s that even if the 300-day charged filing period d o e s apply to it, that it can still go all the way back t o 2001 under a doctrine of continuing violation. t h a t argument is foreclosed by the Fourth Circuit d e c i s i o n in Lewis versus Blumberg Mills, which is in the b o o k l e t under Tab 9. I n Lewis versus Blumberg Mills, the plaintiffs b r o u g h t a class pattern and practice race discrimination c a s e against the defendant. The case is very similar to But

t h e case here, in that the contention is that the d e f e n d a n t had a pattern or practice of engaging in hiring d i s c r i m i n a t i o n against African-Americans. And the

a l l e g a t i o n was not intentional discrimination but that t h e practice was neutral on its face and had a disparate

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i m p a c t which disproportionally excluded minorities. s a m e claim that we have in this case.

The

T h e plaintiffs urged that they be permitted to s e e k to remedy hiring what they viewed as "hiring d i s c r i m i n a t i o n violations" which occurred earlier than t h e charge filing period, more than in this instance the c h a r g e filing instance was 180 days; more than 180 days p r i o r to the filing of the charge. s a i d you can't do that. On Page 15 of the slip opinion, we've highlighted t h e relevant passage from Footnote 20. The Court says The Fourth Circuit

t h i s period meaning the, you know, claim period, is l i m i t e d at its beginning by the date 180 days before S e p t e m b e r 18, 1969, the date on which plaintiff Lewis f i l e d her EEOC charge. I n the next paragraph the Court explains why: f i x i n g the beginning date, we reject appellant's c o n t e n t i o n that he thinks the two year back limitations p e r i o d of 42 U.S.C. Section 200(e)(5)(G) dictates the b e g i n n i n g date two years before filing of Louis's charge. W e do not agree that a discriminatory hiring pattern, as o p p o s e d to other possible discriminatory practices e x i s t i n g prior to the charged filing period, can be c o n s i d e r e d a continuing violation extending into the c h a r g e d filing period to get this result." So, unless -"In

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T H E COURT:

Is there a distinction to be made

b e t w e e n pattern on the one hand and practice on the

M R . LIVINGSTON:

No.

No.

The Supreme Court, in

t h e United States versus Teamsters said that these terms a r e not terms of art, and they essentially -- they've b e e n consistently referred to "as a pattern or practice w i t h o u t any legal recognition that there could be a d i f f e r e n c e between a pattern or a practice." w h a t you're asking me? T H E COURT: Well, without regard to what the Is that

S u p r e m e Court said -- of course I have to give regard to w h a t the Supreme Court said. But if there is a pattern

t h a t doesn't -- it's not the product of any specific d e c i s i o n - m a k i n g by an employer but just happens to be t h i s pattern that when you look at it a big picture emerges. Put that on one hand. And then a practice: We

s a t down at a board meeting today and said we're not g o i n g to hire people with criminal records in this c o m p a n y from January 1st forward. I s there a difference between how one might treat t h a t , as opposed -- one is a very clear, specific decision. You have a criminal record, you don't work for

F r e e m a n on one hand, and the other one simply being that o v e r a long period of time collectively we sort of had a

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b i a s that, well, if you have a criminal record we're not l i k e l y to hire you. But it wasn't a specific practice

t h a t was emboldened in board meeting minutes. Is there any different -M R . LIVINGSTON: For disparate impact claim, the

t y p e that EEOC is pursuing here, EEOC, under Title VII, h a s to identify a specific practice and show that p r a c t i c e resulted in an adverse and statistically s i g n i f i c a n t differences when it played out in a selection p r o c e s s , promotion process, or compensation decision and s o on. S o , I answer that by saying that the law has e v o l v e d to the point, Your Honor, where, in a disparate i m p a c t case, there would be no meaningful difference. e i t h e r case, the EEOC has to point to a particular s p e c i f i c practice that causes that result. I n the Louis case, that practice that was being p o i n t e d to was the practice of having the receptionist be t h e point person and designating who would and who would n o t be interviewed by the decision-makers. The In

p l a i n t i f f s allege that that practice had a disparate i m p a c t on minorities and resulted in fewer minorities b e i n g hired for positions even though the practice itself w a s facially neutral. The plaintiffs said they ought to

b e able to challenge that outside the charge filing

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period.

The Fourth Circuit said you can't do that. T h e Fourth Circuit's decision is wholly consistent

w i t h the Supreme Court's later decision in National R a i l w a y Passengers Association versus Morgan, which might g o more to Your Honor's question, where the Court said t h a t when you're dealing with discreet decisions, a p o l i c y or a practice that results in discreet d e c i s i o n - m a k i n g , like -- and the Court says, "like t e r m i n a t i o n decisions, or decision of who to promote, or d e c i s i o n who to hire." If those are discreet acts, each And those

o n e of them constitutes a potential violation.

a c t s , even if part of a repeating nature, have to be c h a l l e n g e d within the charge filing period under Title VII. W e have discussed in our brief that in Williams v e r s u s Giant, the Fourth Circuit said that that applies e v e n in a situation of pattern or practice. And the

p o i n t that I'm trying to make, Your Honor, is that even b e f o r e Morgan; before Williams verse Giant, the Fourth C i r c u i t had already said that in a case like this, in a c a s e like the one before Your Honor, that the charge f i l i n g period determines how far back the plaintiff can g o to seek to remedy claims, to assert claims. N o w , the EE- -- that doesn't end the matter, b e c a u s e EEOC says that the Louis case and the Morgan case

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a n d the Giant case don't apply to it.

And the reason the

E E O C says that those cases don't apply to it is because i t ' s suing under Section 707 of Title VII. T h e s e other cases were brought under Title VII, S e c t i o n 706. And what EEOC is arguing to the Court is Let's go back to --

t h a t under -- that they say 707(a). i f you would, go back to Tab 1.

707(a), which gave the

a t t o r n e y general the power to bring pattern or practice c a s e s doesn't have a timely charge filing requirement w i t h it. So, EEOC argues that it has no timely charge

f i l i n g requirement when it sues under Section 707. W e say, then, what does 707(e) mean when Section 7 0 7 ( e ) says that once this litigation authority was t r a n s f e r r e d from the attorney general to the EEOC, that E E O C would bring its actions in accordance with the p r o c e d u r e s set forth in 706. T h e procedures in 706 are the procedures I've a l r e a d y discussed. Timely filed charge, notice to the

e m p l o y e r of the charge, investigation, conciliation, c a u s e finding, and ultimately resulting in litigation. T h e r e is no basis -- you know, we talk -- I did a Google search. with." You know, I took this language "in accordance You know, you should do something "in accordance And I did a Google search, and it

w i t h " something else.

j u s t lit up the screen with regulations, statutes, and

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w i t h the local rules of this court. l a n g u a g e of incorporation.

It's very common

W e say in the brief, I think, how many times that l a n g u a g e is used in this court's local rules to mean to i n s t r u c t lawyers to conduct their business in accordance w i t h some other rule or regulation. T H E COURT: You're talking to the chairman of the

l o c a l rules committee; we have used that word a lot. M R . LIVINGSTON: Well I'm pleased to hear that I

a m , because Your Honor knows that that doesn't mean that l a w y e r s should start to parse that language and figure o u t which ones can they avoid because the language may n o t mean -- "in accordance with" may not mean everything, a n d that's precisely to what is being urged to Your Honor b y the EEOC today, that "in accordance with" doesn't mean w h a t it says, and that it doesn't mean what it says (sic.). And to make the argument that it doesn't mean

w h a t it says, the EEOC reaches for statements of public policy. T H E COURT: There is a famous Maryland Court of

A p p e a l s case written by the late Judge McWilliams, and he w a s a big fan of British writings. And there was a case And the

c a l l e d Canada's Tavern versus Town of Glen Echo.

- - in that case, the contention was being made by someone t h a t the county council's legislation didn't mean what it

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said.

And he got off the book, a book that I actually

h a v e on my bookshelf because of this case called A.P. H e r b e r t ' s , The Uncommon Law . And what he quoted was "The You can even imagine "If the Council didn't So, that's

D e a t h l e s s Dictum of Lord Mildew." i t being with a British accent.

m e a n what it said, it should have said so."

e s s e n t i a l l y what your argument is is "The Deathless D i c t u m of Lord Mildew." M R . LIVINGSTON: Had I known that, I would have

c e r t a i n l y given it at least a footnote in the brief, b e c a u s e it encapsulates our argument that it is -- EEOC's p o s i t i o n is that in 707(e) that Congress only intended t h a t EEOC comply with the investigation, cause finding, a n d conciliation requirements of 706(e) and nothing else. I n fact, EEOC says that Congress in 707(e) never i n t e n d e d to limit EEOC's remedies, and they view a timely c h a r g e as limiting EEOC's remedies. I submit to Your

H o n o r that this is awfully strained; it's an awfully s t r a i n e d interpretation of 707(e). If Congress had

i n t e n d e d for the functions of the attorney general to be c a r r i e d out in accordance with only the investigationc a u s e finding conciliation portions of Section 706, one w o u l d have expected Congress to say so and not to have s a i d in all actions, all actions shall be conducted in a c c o r d a n c e with procedures set forth in Section 706 of

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t h i s Act. N o w , if 707(e) doesn't say what we say it says, a n d that means that everything in 706 is incorporated i n t o 707, then there must be some other fair reading of t h e provision. T h e EEOC attempts to provide a cohesive rule for a n a r r o w e r interpretation. The EEOC states that 707(e) is

b e s t read as making explicit only that EEOC must i n v e s t i g a t e and conciliate a charge before it's sued. E E O C states that 707(e) does not make 706's l i t i g a t i o n procedures applicable to 707 actions and, as I s a i d , particularly to the extent those procedures limit remedies. T h e EEOC asserts that the requirements that a c h a r g e be filed within a certain number of days is a l i t i g a t i o n procedure that limits remedies and, therefore, i s outside the scope of 707(e). F i r s t , even if 707(e) could be read as excluding S e c t i o n 706 litigation procedures from pattern or p r a c t i c e cases, it would still incorporate the r e q u i r e m e n t of a timely filed charge and the limitations p e r i o d that flows from that requirement, because the r e q u i r e m e n t of a timely filed charge lies at the heart of t h e administrative process. it. In fact, it's what triggers

The Supreme Court made this clear in the Shell Oil

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d e c i s i o n which I have at Tab 8. A t Page 9 of the slip opinion, at Tab 8, the Court d i s c u s s e s the EEOC process. This case was a case brought

b y the EEOC under Section 707, the Section that is before t h e Court. And the Court says at the bottom of the page,

" T h e process begins with the filing of a charge with the E E O C alleging that a given employer has engaged in an u n l a w f u l employment practice." T h e timely filed charge is the step that invokes t h e administrative process that EEOC concedes is i n c o r p o r a t e d into Section 707 by Section 707(e). So,

e v e n if the EEOC were correct, that 707(e) does not i n c o r p o r a t e litigation procedures, a view which is at o d d s with the plain language of the statute, it would s t i l l incorporate the timely charge filing requirement a n d the consequences of not filing a timely charge. T h e second point, and I -- the second point, Your H o n o r , is that EEOC's interpretation of Section 707 r e s u l t s in so many absurd consequences that you would h a v e to reject it even if the statutory language were l e s s clear. Let me give you a few examples. Perhaps we

c o u l d look back to the chart under Tab 3.

Again, the It's

c h a r t under Tab 3 are the Section 706 procedures. t h e position of the defendant that all of these p r o c e d u r e s are incorporated in the 707 by virtue of

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707(e).

It's the EEOC's position, as I understand it,

t h a t only the procedures of Section 706(b) are i n c o r p o r a t e d into 707 actions. The requirement for a

t i m e l y filed charge is in 706(e). T h e point I'd like to make to Your Honor is that 7 0 6 contains a lot more provisions, too. And in crafting

a rule of incorporation, the Court needs to keep in mind t h e consequences of that rule in future cases dealing w i t h arguments with respect to incorporation of other S e c t i o n 706 provisions. F i r s t , under Section 706(f)(2) the EEOC can obtain e m e r g e n c y injunctions where they are important. But if

S e c t i o n 706 litigation procedures are not incorporated i n t o Section 707, as EEOC argues, then the EEOC has no s t a t u t o r y authority to obtain such injunctions in pattern o r practice cases. S e c o n d , until 1991, when Congress enacted 42 U . S . C . Section 1981(a), EEOC for the very first time o b t a i n e d the right to seek compensatory and punitive d a m a g e s in employment discrimination cases; but that r i g h t to seek compensatory damages was specifically l i n k e d to a claim under Section 706. The statutory

p r o v i s i o n states that in 706 actions, the EEOC can seek c o m p e n s a t o r y punitive damages if EEOC is correct and 7 0 7 ( e ) does not incorporate the litigation procedures of

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S e c t i o n 706.

That means EEOC cannot seek compensatory

a n d punitive damages in pattern or practice cases. I think that means one of two things, that either C o n g r e s s , when it enacted the punitive damage provisions, d i d n ' t agree with EEOC's assertions that these pattern or p r a c t i c e cases are of paramount importance to the c o u n t r y , or it didn't agree with the EEOC's view that t h e s e provisions would not be incorporated into Section 7 0 7 by 707(e). T h i r d , the right to a jury trial exists only for c a s e s under Section 706(h). Now, in our view, this is

n o t a problem, because 707(e) incorporates the right to a j u r y trial into a Section 707 action pattern or practice lawsuit. Under EEOC's interpretation that litigation

p r o c e d u r e s are not incorporated by Section 707(e), then t h e r e is no right to a jury trial in a pattern or p r a c t i c e case brought by the EEOC. sense. T h e EEOC has emphasized to this court that pattern o r practice cases are designed to attack the worst forms o f employment discrimination. It would be absurd for the These results make no

E E O C to be able to obtain emergency injunctions, trial by j u r y and compensatory and punitive damages in 706 cases, b u t not in pattern or practice cases. But these are the

c l e a r consequences of EEOC's argument that the litigation

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p r o c e d u r e s of 706 are not incorporated into Section 707. T h e plain language of Section 707(e) answers all questions. It does not require thoughtful analysis of

p u b l i c policy considerations to go down the list of 706 p r o c e d u r e , litigation procedures, administrative p r o c e d u r e s and find which ones are incorporated into S e c t i o n 707 sections and which ones are not. I will tell

Y o u r Honor that in those cases where courts have a t t e m p t e d to do this gerrymandering, that the results are i n c o n s i s t e n t and irreconcilable, and the reason is t h e y ' r e all using different rules. F o r example, in the EEOC versus Mitsubishi, a d i s t r i c t court decision that the EEOC cites as holding t h a t there is no charge filing period under Section 707, t h e Court also said EEOC cannot bring a 707 pattern or p r a c t i c e case based upon a charge filed by an individual u n d e r 706 that the EEOC can only act on a commissioner charge. Well if that's the law, an EEOC 707 action

s h o u l d be dismissed because EEOC is proceeding on an i n d i v i d u a l charge and there is no EEOC commissioner c h a r g e filed in this case. I ' m not suggesting that that's the correct result. I am making the point that in erasing the line drawn by C o n g r e s s of incorporation, there is no other line; and t h e courts are struggling to try to create one, and

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t h e y ' r e coming up with different results except, of c o u r s e , in those instances where they're agreeing with o u r position. A n o t h e r point that I think is quite important, and I know I've spent a lot of time up here Your Honor so I'd l i k e -- I'll try to -T H E COURT: No, that's fine. I'll try to wrap it up.

M R . LIVINGSTON:

B u t , you know, the EEOC has argued that you s h o u l d n ' t worry. You shouldn't -- the Court shouldn't be

c o n c e r n e d about not imposing a limitations period on E E O C ' s actions because, after all, in Section 706(g) the E E O C cannot recover back pay going back more than two y e a r s prior to the filing of the charge. p o i n t s to make about that. I have two

Number one is, how is EEOC

a p p l y i n g 706(g) to its pattern or practice case under 707? EEOC's arguing that 707(e) is not intended to limit

E E O C ' s remedies, and it doesn't incorporate the l i t i g a t i o n procedures of Section 706. S e c t i o n 706(g) is, number one, a litigation p r o c e d u r e and, number two, quite clearly limits EEOC's remedies. The only way that EEOC can argue as it does

t h a t 706(g) limits its pattern or practice cases is by c o n c e d i n g that it's incorporated into 707 by 707(e). o n c e it's made that -- once it's made that concession, But

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t h e n where do you draw the line?

It's not rational that

7 0 6 ( g ) would be incorporated into the statute, but the c h a r g e filing in period 706(e) would not be. The second point I want to make is going back to t h e case, Louis versus Blumberg Mills, which we've d i s c u s s e d with Your Honor for the point that the Fourth C i r c u i t has said that in a case like this -- in a pattern o r practice case like this, the plaintiffs can't go b e y o n d the charge filing period to seek to establish claims. I n that case the plaintiffs argued that they s h o u l d be able to go back at least two years prior to the f i l i n g of the charge under this provision that allows b a c k pay up to two years prior to the filing of the charge. That argument in the passage that I read to the The Court said that a

C o u r t was specifically rejected.

t w o - y e a r back pay period did not provide a basis upon w h i c h litigants could go back beyond the charge filing p e r i o d to bring cases. I ' d like to spend just a minute discussing the L . A . Weight Loss case, which is a case decided by one of Y o u r Honor's colleagues on this court and ruled in EEOC's f a v o r in that case. And he held that Section 707 does

n o t incorporate the requirement for a timely filed charge u n d e r 706(e). In our brief, we've explained why we

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b e l i e v e that L.A. Weight Loss was decided incorrectly. T h e point I'd like to stress today is that to our k n o w l e d g e , the parties did not explain to the judge the c o n s e q u e n c e s of the EEOC's interpretation of Section 7 0 7 ( e ) for pattern and practice litigation. So,

a p p a r e n t l y , the Court was unaware, for example, that the E E O C thought that 706(g), which limits back pay to two y e a r s , applies in pattern or practice suits, but the l i m i t a t i o n s period that flows from the charge filing p e r i o d does not. T h e Court apparently was unaware that under EEOC's p o s i t i o n , the EEOC would not be entitled to seek a jury t r i a l or compensatory or punitive damages in pattern or p r a c t i c e s cases. These results cannot be reconciled with

t h e judge's statement in L.A. Weight Loss about the i m p o r t a n c e of pattern practice suits in a Title VII's e n f o r c e m e n t scheme. A l s o , the Court held that the nature of pattern or p r a c t i c e cases is not susceptible to placing a time p e r i o d on it, that it constitutes a type of continuing v i o l a t i o n that can be challenged all the way back to its inception. It doesn't appear from the case that the

j u d g e was familiar with the Louis versus Blumberg Mills d e c i s i o n ; that case is not cited anywhere in the opinion. I f Your Honor has no additional question, then

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I ' l l cede the podium. T H E COURT: Thank you very much.

M r . Phillips. MR. PHILLIPS: I ' m Ron Phillips. Good morning, Your Honor. Again,

I'm here for the EEOC in this matter.

I want to address some of the points that counsel for F r e e m a n referenced in his argument. But before I do, I

j u s t want to give a brief overview of the EEOC's position i n this matter regarding the defendant's motion for p a r t i a l dismissal. F i r s t , it -- the EEOC does not contend that in o r d e r to institute a 707, or pattern or practice lawsuit, i t does not need a timely charge. In that regard, we

a g r e e with the defendant that in order to trigger an i n v e s t i g a t i o n that would lead to a pattern or practice l a w s u i t , the EEOC requires a charge that is timely, that i s what triggers the process that begins with a charge t r i a l filing and investigation, a reasonable cause d e t e r m i n a t i o n and a conciliation, all of which took place i n this case. But that's not the issue.

T h e issue is not whether the EEOC had authority to i n v e s t i g a t e this matter. c h a r g e filed. It did. There was a timely

The issue is whether the timing of that

c h a r g e filing restricts the EEOC's remedies for a class i n v o l v i n g a pattern or practice, a continuing violation

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i n subsequent litigation.

That's a separate question.

A n d it's the position of the EEOC that although a t i m e l y charge is required to trigger an investigation, t h e charge filing period for an individual under Section 7 0 6 ( e ) ( 1 ) does not limit the scope of relief that the E E O C may obtain in a pattern or practice lawsuit brought p u r s u a n t to its public interest exclusive authority under S e c t i o n 707. T H E COURT: If I'm an employee of a company and I

w a s the victim of five different discriminatory actions i n the workplace, five specifically discreet things done t o me: I wasn't promoted; on a different date I was Five

s u s p e n d e d ; on another date I was, and so forth.

s e p a r a t e things, three of which occur prior to 300 days a n d two of which are after. Is there any question that

t h e only ones that would properly be before the EEOC, as w e l l as before this court, would be the two that are w i t h i n the period of time? M R . PHILLIPS: With respect to the individual who

f i l e d the charge, that is true, unless it were part of a p a t t e r n or practice and that individual had filed to r e p r e s e n t a class with the EEOC and in this court. t h a t case, under the -- again, we're talking about s e t t i n g aside Section 707. l i t i g a n t under Section 706. We're talking about a private In

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I n that situation, under the Fourth Circuit case l a w , that individual would not be able to raise prior a c t s of discrimination, acts that were time barred under t h e charge filing period, unless that person could prove u n d e r Teamsters a pattern or practice of discrimination, a n d unless that person were a class representative in a c e r t i f i e d class action. T H E COURT: All right. But that is certainly the tradeoff.

M R . PHILLIPS:

U n d e r Williams, and under the prior decision that W i l l i a m s cited, Lowery, the Fourth Circuit has made clear t h a t an individual cannot evade the timely charge filing r e q u i r e m e n t and bring in otherwise time barred acts of d i s c r i m i n a t i o n by simply asserting a pattern or practice o f discrimination. The pattern or practice claim has to

b e properly before the Court, and that can only happen u n d e r Lowery if there's a class action before the court. W i t h respect to -- which raises the additional i s s u e here. Separate and apart from any construction of

S e c t i o n 707, under the Fourth Circuit case law the c o n t i n u i n g violation doctrine would apply to this case a n d toll the limitations period to permit recovery for v i c t i m s beyond the 300 day charge filing period even if t h i s action were brought solely under EEOC's authority u n d e r Section 706(f). This is so because of the

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a p p l i c a t i o n of the continuing violation doctrine. C o u n s e l cited a case of Louis versus Blumberg Mills. In the briefs, the EEOC cited a case which

p r e - d a t e s Louis, another panel decision called Patterson v e r s u s American Tobacco Company. In that case the Fourth

C i r c u i t held that the pattern -- that a continuing v i o l a t i o n in the situation of a pattern or practice would a p p l y and would permit the class to be broader than a 3 0 0 - d a y charge filing period. It would permit bringing

i n individuals and acts of discrimination prior to that period. A n o t h e r case that was not cited in the briefing b u t I can provide the court with a copy of, Chisum versus U n i t e d States Postal Service, stands for the same proposition. And again, that is another Fourth Circuit

d e c i s i o n that pre-dates Louis. G o i n g back for a moment to the issue of statutory c o n s t r u c t i o n under Section 707. Defendant contends that

t h e language of Section 707(e) is plain and that it e n c o m p a s s e s and limits the EEOC's remedies in a 707 a c t i o n in accordance with when the charging party filed t h e charge. That EEOC's remedies would be restricted to Respectfully, we

t h e 300-day charge filing period.

r e g a r d that as a misreading of the statute. T h e issue -- and in counsel's argument there was a

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r e f e r e n c e to the phrase in 707(e), "in accordance with." I n accordance with the procedures set forth in Section 2 0 0 0 ( e ) ( 5 ) of this Title, otherwise Section 706. We take

n o issue with the defendant's interpretation of the p h r a s e "in accordance with," but that's not the issue. T h e issue in this case is "in accordance with" what? a c c o r d a n c e with what? It says all actions shall be In

c o n d u c t e d in accordance with. T H E COURT: You asking me to pick and choose

p o r t i o n s of Section 706? M R . PHILLIPS: No, Your Honor. What I'm

s u b m i t t i n g to the Court is that the phrase "all such a c t i o n s , " that's the operative language that has to be c o n s t r u e here under 707(e), not "in accordance with." T h e prior sentence in Section 707(e) reads in relevant part: The commission shall have authority to investigate

a n d act on a charge of a pattern or practice of discrimination. "In investigate and act on." This

s t a t u t o r y subsection does not reference reasonable cause findings. It does not reference conciliation. It

r e f e r e n c e s "investigate and act on." W e l l , given the comprehensive administrative p r o c e d u r e set up under Section 706, the phrase "act on" h a s to be interpreted as including reasonable cause d e t e r m i n a t i o n s and conciliation.

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A n d in the next Section -T H E COURT: Isn't the whole purpose of And the mandatory

c o n c i l i a t i o n in the mandatory aspect?

a s p e c t of it that hopefully most of those cases will not e n d up in federal court or, rather, they will be c o n c i l i a t e d using the good and expert auspices of your a g e n c y and that both with regard to discreet cases and p a t t e r n and practice cases that in effect Congress is s a y i n g , let's nip these in the bud promptly. Let's

i d e n t i f y the problems, address them and resolve them, h o p e f u l l y administratively. Isn't that the purpose of

w h a t Congress was trying to accomplish? M R . PHILLIPS: Yes it is, Your Honor. Indeed, it

i s , and that is precisely what occurred in this case. T h e EEOC -T H E COURT: Well, what happened in this case

t h o u g h did not relate to a period of time as vast as y o u ' r e seeking. M R . PHILLIPS: It actually did, Your Honor. The

E E O C ' s reasonable cause determination in this case e n c o m p a s s e d the full time period that is the subject of t h e litigation in this case and that reasonable cause determination. There was a conciliation attempt made as

t o the full scope of the case. T H E COURT: Perhaps it failed because you were

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t r y i n g to go back too far. M R . PHILLIPS: That is not correct, Your Honor.

T h a t is not why it failed. T H E COURT: Okay. All right.

M R . PHILLIPS:

In any event, Your Honor, looking

a t this language of 707(e), all such actions in the last s e n t e n c e has to refer to the phrase "act on" in the first s e n t e n c e of 707(e). "Act on" is best understood given

t h e language "investigate" that precedes it as a r e f e r e n c e to the remaining portions of the administrative p r o c e s s , including -- that precede litigation, including i n v e s t - -- including a reasonable cause determination and conciliation. T h i s is the interpretation of this language that's b e e n given to it by now a majority of district courts to c o n s i d e r this issue, including this court in L.A. Weight Loss. Most recently, Your Honor, a decision of the

W e s t e r n District of New York in EEOC versus Sterling J e w e l e r s dealt with this issue, and I have a copy for the Court. T H E COURT: Hand it up to me. In EEOC versus Sterling Jewelers,

M R . PHILLIPS:

Y o u r Honor, the Western District of New York was very r e c e n t l y presented with this issue and sided with the E E O C , concluding that Section 707(e) -- I'm sorry, Your

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H o n o r , that Section 706(e) charge filing period does not a c t as a restriction on EEOC's remedies in pattern or p r a c t i c e litigation. I n addition in Sterling Jewelers, the Western D i s t r i c t of New York also concluded that the Supreme C o u r t ' s decision in Morgan did not abrogate prior Second C i r c u i t case law that provided for a continuing violation i n situations where a pattern or practice of d i s c r i m i n a t i o n had been proven. And in that circumstance

w h e r e there was a continuing violation involving a p a t t e r n or practice that the class remedies would not be r e s t r i c t e d by the 300-day charge filing period under S e c t i o n 706(e). I n addition, Your Honor, it's important to read t h e language of Section 707(e) in light of its subject matter. Section 707(e) and the entirety of 707 deal with Pattern or practice

p a t t e r n or practice violations.

v i o l a t i o n s by their very nature require proof of repeated r e g u l a r discriminatory conduct over time. p o l i c y -T H E COURT: Is that really the case? As I said, In this case a

i f you take the example I was asking defense counsel a b o u t , a board meeting is held this morning and the b o a r d says, from now on we're not going to hire anybody w i t h a criminal record henceforth and forever more.

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T h a t ' s our decision; that's our company policy. t h a t require multiple instances to prove it?

Does

I mean, if

y o u were to come out of discovery in this case and had a s m o k i n g gun right in your hand, here is our company p o l i c y ; we will not hire somebody with a criminal record, period. Why do I need to have repeated instances? M R . PHILLIPS: Your Honor, there would be no

r e m e d y in that situation, because there has yet to be an a p p l i c a t i o n of the policy. circumstance. There is no class in that

It would require an actual application of

t h a t policy to individuals. T H E COURT: All right. Let's suppose we put the

p o l i c y into effect October 1 of last year, and here it is J a n u a r y 1 and we've had 1,000 applicants and not one s i n g l e African-American was hired because of this policy. M R . PHILLIPS: T H E COURT: A pattern of practice, Your Honor.

Is that enough? Yes, it is.

M R . PHILLIPS: T H E COURT:

What you're addressing though is the

e f f e c t of that practice -- of that policy, excuse me, as b e i n g -- having a discriminatory effect; correct? M R . PHILLIPS: In this situation Your Honor we are It's

n o t contending there was purposeful discrimination. a disparate impact claim. T H E COURT:

Well, the purposeful act, assuming

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t h a t that's what ultimately is found in this case, is we d o n ' t hire people with criminal records. p u r p o s e f u l act. That's the

That's not perfect -- on its face a In order to prove it's

p u r p o s e f u l l y discriminatory act.

u l t i m a t e l y a discriminatory act, you have to prove d i s c r i m i n a t o r y effect; correct? M R . PHILLIPS: In this case, to be clear, Your

H o n o r , there was intentional discrimination in the sense t h a t the company adopted a discriminatory policy intentionally. It did not adopt the policy -- we don't

c o n t e n d it adopted the policy for the purpose of s c r e e n i n g out minorities or male candidates. But that

w a s its effect which really goes to the heart of what the S u p r e m e Court was talking about in Morgan, where it t a l k e d about a continuing violation. In Morgan the Supreme Court dealt with a situation i n v o l v i n g harassment where a repeated pattern of -- the n a t u r e of the discrimination would -- and the existence o f discrimination, actionable discrimination, would not b e c o m e evident until there were a pattern of acts over time. This is the nature of a hostile work environment

a s described by the Supreme Court in Morgan. T h i s case very closely resembles that fact p a t t e r n , Your Honor, in the sense that it would not b e c o m e -- the discriminatory impact of the defendant's

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p o l i c i e s in this case would not become evident until they w e r e applied to a significant number of applicants over t i m e and the pattern of disparate impact became clear b o t h on minorities and on male job applicants. T h i s is really the -- an important point. In

l o o k i n g at the statutory language, we have to look at the n a t u r e of what it describes, and it describes pattern or p r a c t i c e discrimination. Pattern or practice

d i s c r i m i n a t i o n involves a pattern or a policy of conduct o v e r a period of time. In addition, looking at the

l a n g u a g e , even assuming -- even assuming that the l a n g u a g e -- strike that, Your Honor. G o i n g beyond the plain language of the statute and l o o k i n g at the legislative history, it's also quite clear t h a t Section 707(e) was not intended to act to i n c o r p o r a t e the charge filing period under 706(e) as a s u b s t a n t i v e limitation on the EEOC's remedies in litigation. T h i s was the conclusion of the Fifth Circuit in E E O C versus Allegheny Ludlum, a case in the 1970. The

i s s u e in Allegheny Ludlum was whether or not private i n d i v i d u a l s had an ability to intervene in EEOC 707 litigation. t h e y did not. And what the Fifth Circuit concluded is that And the reason they did not, upon

e x a m i n a t i o n of the legislative history the EEO- -- the

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F i f t h Circuit concluded that Congress, when it enacted S e c t i o n 707(e), never intended -- never intended 707(e) t o act as a -- to set up a set of procedures for EEOC litigation. Rather, what 707(e) was intended to do was

t o provide for pattern or practice charge filing and EEOC a d m i n i s t r a t i v e process to investigate, find reasonable c a u s e and conciliate charges of pattern or practice of d i s c r i m i n a t i o n , whether brought by an individual or b r o u g h t by a commissioner under a commissioner's charge. I n this regard it's important to keep in mind C o n g r e s s ' objectives. In granting EEOC authority to

l i t i g a t e pattern or practice cases under Section 707, c o n g r e s s had as one purpose to provide full remedies for p a t t e r n s and practices of discrimination. p r i n c i p l e that's repeated in the case law. This is a It most

p r o m i n e n t l y it's noted in the briefs in the case T e a m s t e r s versus -- International Brotherhood of T e a m s t e r s versus United States. In that case there was a

l a r g e class, and the Supreme Court directed the lower c o u r t s to formulate the fullest remedy possible for the e n t i r e class. I n addition, Congress had as a purpose, as d e s c r i b e d in the Supreme Court's decision in Waffle H o u s e , to give the EEOC broad independent authority to r o o t out systemic discrimination. That's also noted by

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S u p r e m e Court in the Shell Oil decision, which is cited i n the briefs, authority that is not contingent upon the s u b s t a n t i v e rights of particular individuals. I n their brief, the defendant, and in some of the c a s e s that the defendant cites, there is this view that t h e EEOC acts as a proxy for individuals for whom it s e e k s relief. The Supreme Court has made clear

r e p e a t e d l y in the General Telephone decision and in W a f f l e House that that is not true. And in addition,

C o n g r e s s had as a key purpose to deter systemic v i o l a t i o n s of the law by providing the EEOC with a more f o r c e f u l remedies possible. T h i s is why, as the Fourth Circuit described in t h e General Electric decision, the EEOC may seek remedies r e g a r d i n g any violations it uncovers in the scope of an i n v e s t i g a t i o n regardless of whether those violations were p l e a d e d by the charging party in their charge, regardless o f whether the charging party who filed the initial c h a r g e has standing to do so. And this is why, as the

F i f t h Circuit concluded in EEOC versus Allegheny Ludlum t h e r e is no intervention permitted in a Section 707 action. If the defendant's construction of Section

7 0 7 ( e ) is correct, then private individuals would be p e r m i t t e d to intervene. T h e r e are certain other portions of the statute

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t h a t also clearly indicate that Congress did not intend t h e 300-day charge filing period to restrict EEOC's r e m e d i e s in pattern or practice litigation. For example,

l o o k i n g at Section 706(g), which limits back pay to a two y e a r period preceding the charge filing, that provision w o u l d be completely unnecessary if Congress viewed the r e m e d i e s of a litigant as being restricted to only those d i s c r i m i n a t o r y acts that took place within 300 days of t h e charge. T h e two year period obviously is a much broader period. So, obviously, what Congress had in mind was

t h a t in some situations -- in certain situations the p l a i n t i f f or the government would be permitted to recover b a c k pay for a period exceeding the 300 day period of the charge. What are those situations? Well, it's clear

f r o m a reading of the majority of decisions that have r e a c h e d this question of the EEOC's remedies under 707, a n d it is clear from a reading of the continuing v i o l a t i o n case law, both pre-Morgan and post-Morgan i n v o l v i n g these -- the kinds of claims that are at issue h e r e that in a pattern or practice case, a plaintiff c l a s s or the EEOC was intended to be able to recover b e y o n d the 300 day period. This is why the two year

p e r i o d becomes necessary, certainly involving a private c l a s s under Section 706.

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T h e defendant, in its argument, raises several p o i n t s that I'd like to address specifically. First, the

d e f e n d a n t argues that if the Court were to construe S e c t i o n 707(e) as not incorporating in its entirety all t h e provisions Of Section 706, that the EEOC would have n o ability to obtain injunctive relief in a Section 707 action. In the defendant's view, injunctive relief is

o n l y provided for in Section 706 in the litigation a u t h o r i t y provisions of Section 706. m i s r e a d i n g of the statute. L o o k i n g at Section 707(a), there is specific l a n g u a g e concerning the ability of the attorney general, w h o s e authority has become the EEOC's, to file an a p p l i c a t i o n for a permanent or temporary injunction to s e e k a restraining order or other order against the p e r s o n or persons responsible for such pattern or practice. Section 707(a) specifically addresses the That is a

s t a t u t o r y construction concern the defendant has. T h e defendant also asserts that with respect to c o m p e n s a t o r y and punitive damages, and with respect to j u r y trial, that unless 707 incorporates in its entirety t h e procedures of Section 706, that the EEOC would have n o ability in a pattern or practice case to seek c o m p e n s a t o r y or punitive damages or to obtain a jury trial.

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W e l l , first of all, just to note for the Court, t h e EEOC is not seeking compensatory and punitive damages i n this case. This case is purely a case involving

d i s p a r a t e impact discrimination, and the statute provides o n l y for equitable remedies in this situation including b a c k pay, injunction, front pay. Furthermore, given that

s i t u a t i o n , the EEOC is not seeking a jury trial in this case. So, that -- those two issues are simply not at

i s s u e here. T H E COURT: t r i a l in this case? M R . PHILLIPS: a r e not. No, Your Honor, they are not. They Is the defendant entitled to a jury

But with respect to their statutory

c o n s t r u c t i o n argument, the short answer to the question i s that the EEOC brings action -- pattern or practice a c t i o n s under both Section 706 and 707 and so 706 does p r o v i d e in those situations for both the jury trial and c o m p e n s a t o r y and punitive damages that the EEOC -- I'm s o r r y , that the defendant referenced. W i t h respect to the specific issue of 706(g) and t h e two year back pay period. The defendant argues that

t h e EEOC's construction of Section 707(e) is incorrect b e c a u s e of statements in the EEOC's brief concerning the a p p l i c a b i l i t y of Section 706(g). y e a r limitation on back pay. Specifically, the two

To be clear Your Honor, the

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E E O C ' s position in this case is that there is no l i m i t a t i o n s period applicable to the scope of EEOC's r e m e d i e s under Section 707. That includes the two year

b a c k pay period under Section 706(g). T H E COURT: y o u ' r e saying? M R . PHILLIPS: Honor. We are not bound by that, Your So you're not bound by that, is what

There were statements in the EEOC's brief to the Those

e f f e c t that 706(g) would apply in this case. s t a t e m e n t s were error on my part. statute.

I misconstrued the

To the extent that we stated that Section

7 0 6 ( g ) ' s two year back pay period would apply in this c a s e , that was -- the EEOC withdraws those statements. T h e y were a misconstruction of the statute on my part and m y part alone. H o w e v e r , if the defendant is correct in the a l t e r n a t i v e , and Section 706(g) -- I'm sorry, Section 706 i s incorporated in toto via Section 707(e), then it's v e r y clear that Section 706(g) would apply. And in that

c i r c u m s t a n c e , the restriction on EEOC's back pay remedies w o u l d be two years. There would be no purpose in having

S e c t i o n 706(g) exist in that circumstance unless Congress h a d in mind that the EEOC could recover beyond the 300 d a y period. D e f e n d a n t may argue that, well, Morgan answers

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t h a t question; that under Morgan the Supreme Court p r o v i d e d for a continuing violation in cases of hostile w o r k environment; in cases where a plaintiff was pleading harassment. And the plaintiff in that situation, as long

a s it was part of a continuing violation, could continue t o recover even for harassing acts that pre-dated the 300 d a y charge filing period. T h e problem with that argument, Your Honor, is t h a t , generally speaking, a plaintiff cannot recover back p a y for harassment alone. Section 706(g) has to mean And we believe the

m o r e than a hostile work environment.

a n s w e r to that question is Section 706(g) was intended t o , at a minimum, restrict a private class's ability to r e c o v e r involving a continuing violation and a pattern or p r a c t i c e involving employment actions other than h a r a s s m e n t , such as hiring, promotion, and other acts of d i s c r i m i n a t i o n that were the subject of pre-Morgan Fourth C i r c u i t case law and continuing violations. T h e defendant, in its briefing and again here t o d a y , stresses the decision of the Fourth Circuit in W i l l i a m s versus Giant, which was a single plaintiff d i s c r i m i n a t i o n action where the plaintiff asserted that m u l t i p l e , otherwise time barred acts of discrimination w e r e part of a pattern or practice for which she should b e able to recover.

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T o be clear, the Williams decision did not find t h a t a pattern or practice of discrimination could not be - - could not be considered a continuing violation. W i l l i a m s case doesn't address that issue at all. The The

c e n t r a l rule in Williams, which was dispositive in that c a s e , was the Lowery holding in Fourth Circuit, that a p r i v a t e individual not asserting a class action claim c o u l d not assert a pattern or practice. I n addressing the defendant's concern about absurd r e s u l t s , the EEOC notes that the defendant's i n t e r p r e t a t i o n also creates a significant tension and a b s u r d result in the statute. The EEOC investigates all

p a t t e r n of practice charges that are filed against p r i v a t e employers, against government, including state a n d local government employers. The EEOC, however, does

n o t have authority to file litigation against state or l o c a l governments involving violations of Title VII. t h a t circumstance the cases are referred to the U. S. D e p a r t m e n t of Justice for litigation. I f , as the defendant claims, the Section 706(e) c h a r g e filing period acts as restriction on the scope of E E O C ' s class remedies, then in cases involving state or l o c a l governments the EEOC would be restricted in its r e a s o n a b l e cause determination and would be restricted in i t s conciliation to seeking -- to making a finding and In

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s e e k i n g remedies for only victims of discrimination who h a d adverse action taken against them within the 300 day c h a r g e filing period. But that can't be right. And the

r e a s o n is because Section 707(e) is inapplicable to the U . S. Department of Justice. T h e U. S. Department of Justice, consistent in the c a s e law, has the authority to obtain remedies for the e n t i r e class of pattern or practice violation, including a n y individuals beyond the 300 day charge filing period. T h i s is a principle that was recognized in some of the c a s e s that were cited in EEOC's brief, including the N i n t h Circuit decision in United States versus Fresno U n i f i e d School District. S o if the defendant's interpretation is correct, t h e EEOC would be in the position of making findings only a s to a limited class within the 300 day period and c o n c i l i a t i n g only those violations. But if conciliation

i s unsuccessful, the EEOC has to refer that case now to t h e U. S. Department of Justice which has authority to s e e k remedies for the entire class. This creates an

e n o r m o u s disjunction in the administrative process i n v o l v i n g state and local government employers, and it c r e a t e s the potential that the EEOC would be forced, b e c a u s e the EEOC has an affirmative statutory duty, to e n g a g e in conciliation effort. Once it finds a

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v i o l a t i o n , the EEOC would be forced to settle cases out f r o m under DOJ on a much limited class scope. That

c a n n o t be a correct interpretation of the statute, but t h a t is the interpretation of the statute that the d e f e n d a n t is inviting this court to adopt. T h e defendant also argues that the 300 day period, a p p l y i n g that to restrict the EEOC's remedies in 707 l i t i g a t i o n is necessary to give employers prompt notice o f the violations that are at issue. The EEOC certainly

d o e s not quarrel with an interpretation of the charge f i l i n g period as it is existing to encourage prompt c h a r g e filing. However, as stated in the EEOC's brief,

w e do not believe that a restriction on the EEOC's r e m e d i e s in a pattern or practice litigation is necessary o r was intended to effectuate that outcome. I n d i v i d u a l s have very strong incentive to file t i m e l y charges of indiscrimination with the EEOC r e g a r d l e s s of what EEOC's remedies are in pattern and p r a c t i c e litigation. That incentive is if the individual

d o e s not file a timely charge, the charges will be deemed u n t i m e l y and it will be dismissed, and that individual w i l l have lost their rights under Title VII. I n addition, as I've stated previously, we do not d i s a g r e e with the defendant that in order to trigger an i n v e s t i g a t i o n of pattern or practice we require charge of

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discrimination.

Again, this is another incentive for

i n d i v i d u a l s who file charges to file them within 300 days o f the act of discrimination that they were subjected to. T h i s applies to both individuals and EEOC commissioners. F i n a l l y , Your Honor, I just wanted to go back to t h e issue of continuing violation under Section 706. n o t e d in the Western District of New York's opinion in S t e r l i n g , the Court found that in the alternative, even, e v e n if it had not agreed with the EEOC's interpretation o f Section 707 and the scope of EEOC's remedies under S e c t i o n 707; even if the case had been brought solely u n d e r Section 706, that the continuing violation d o c t r i n e , as applied to patterns and practices of d i s c r i m i n a t i o n , survives Morgan, has