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Home Archive Current Volume Volume 63, Issue 1 Duke-ing Out Pattern or Practice After Wal-Mart: The EEOC as Fist
Duke-ing Out Pattern or Practice After Wal-Mart: The EEOC as Fist

By Angela D. Morrison | 63 Am. U. L. Rev. 87 (2013)

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 plaintiff classes 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 VII.

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