Private actions can be brought by individuals who themselves filed charges, or on whose behalf charges were filed, with the EEOC. If these individuals have not agreed to a settlement of the charge and a public action has not been filed, they may bring an individual action after receiving a right-to-sue letter. Moreover, if the EEOC has failed to take any action on a charge for 180 days, after the expiration of the deferral period, an individual can receive a right-to-sue letter at his or her request.
Before any litigation is commenced, the EEOC will disclose the results of its investigation of a charge, but not discussions in attempted conciliation, to the charging party or to the person on whose behalf the charge was filed. The Supreme Court has held that the general prohibition against public disclosure of the results of an EEOC investigation before an action is filed does not apply to disclosure to those who are the subject of the charge or their attorneys.
Private actions under Title VII are often brought as class actions. A named plaintiff can exhaust administrative remedies on behalf of the class and with respect to any claim that was the subject of or could reasonably have been expected to grow out of the EEOC's investigation of the charge. A line of cases, originating in the Fifth Circuit, initially adopted a principle of liberal certification of Title VII class actions. These cases applied the requirements of Federal Rule of Civil Procedure 23 loosely in Title VII cases and certified "across-theboard" classes that included all employees who suffered from discrimination throughout an employer's operations.
The Supreme Court subsequently halted this trend in two cases in which it reversed certification of classes approved by the Fifth Circuit.
In East Texas Motor Freight System v. Rodriguez, the Court held that a class was erroneously certified on appeal when the named plaintiffs had not sought certification before trial, the case had not been tried as a class action, the relief requested by the named plaintiffs had been rejected in a union vote by most of the class members, and the named plaintiffs had lost on their individual claims at trial. In General Telephone Co. v. Falcon, the Court held that a class of applicants for employment was erroneously certified by the district court because the only named plaintiff was an employee who claimed discrimination in promotions. In Rodriguez, the Court stated, "We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed. Rule Civ. Proc. 23 remains nonetheless indispensable." In Falcon, the Court added that the "across-the-board" rule led to neglect of the requirements of Rule 23, but left open the possibility that employment practices applicable to both employees and applicants might justify certification of an equally broad class. A similar possibility led to the Court's later decision in Bazemore v. Friday, affirming the denial of class certification in some respects, but not others, based on geographical differences in conditions of employment.