Procedures Under Title VII

• Pages: 169-191
• Author: George Rutherglen

169

Chapter 8

PROCEDURES UNDER TITLE VII

Title VII establishes an enforcement scheme that is divided into

three stages: state or local administrative proceedings; investigation

and conciliation by the Equal Employment Opportunity Commission

(EEOC); and litigation by private individuals, or by the EEOC or the

Attorney General. This three- stage scheme is inherently more

complicated than any simple mechanism for purely administrative or

judicial enforcement. Questions repeatedly have been raised about

the relationship among the different stages of enforcement, the time

limits that apply at each stage, and the effect that both have on the

remedies ultimately available to the plaintiff. As a result, the legal

doctrine governing these issues has become ever more complex,

making litigation of employment discrimination cases highly

technical and specialized. The doctrinal complexity, moreover, does

not point in a single direction, but serves a variety of different

purposes, some favorable to plaintiffs, others to defendants.

Any scheme of procedures and remedies must promote, at least

to some degree, the fair and efficient enforcement of the obligations

defined by substantive law. In Title VII, these are obligations not to

discriminate. Title VII thus gives individuals who believe they are

victims of discrimination a fair opportunity to raise their claims in

an administrative or judicial forum, and correspondingly, it gives

employers an opportunity to defend against these claims. By

requiring resort to administrative proceedings, Title VII also

attempts to reduce the cost of resolving claims of discrimination, and

at the remedy stage, it provides a full range of legal and equitable

relief to compensate for past discrimination and to deter future

discrimination. Superimposed on these standard procedural values,

however, are additional policies concerned with protecting

federalism, fostering settlement, limiting administrative

enforcement, and assisting plaintiffs in obtaining legal counsel. All

of these additional values can be implemented, on an optimistic view,

without detracting from the fair and efficient enforcement of the

statute. But on a pessimistic view, these additional values inevitably

require some compromise with the standard procedural values of

fairness and efficiency. Even if these values coincide in support of

some procedures and remedies, they diverge and conflict with respect

to others.

The first stage of Title VII enforcement, through state and local

administrative remedies, illustrates how values of federalism

complicate the resolution of Title VII claims. The first stage remedies

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PROCEDURES UNDER TITLE VII

Ch. 8

must be exhausted, but only if a state or locality has enacted a statute

or ordinance against employment discrimination.

1

An EEOC

regulation contains an authoritative list of states and localities with

appropriate agencies.

2

The EEOC must give “substantial weight” to

the findings of state and local agencies,

3

but the courts are not bound

by any administrative findings, whether by state or local agencies or

by the EEOC.

4

Federal courts, however, are bound by the decisions

of state courts reviewing the decisions of state or local administrative

agencies.

5

Thus, a plaintiff who wants to pre serve her right to bring

a Title VII claim in federal court must exhaust state or local

administrative proceedings, but be careful to avoid state judicial

proceedings that would have preclusive effect in subsequent federal

litigation.

The second stage of enforcement, through administrative

proceedings in the EEOC, reveals both the policy in favor of

settlement and the restrictions on administrative authority under

Title VII. The EEOC exercises no adjudicatory authority, except in

cases filed by federal employees or by certain high-level state

employees, for which special procedures apply.

6

The only powers of

the EEOC are to investigate charges, to determine whether there is

reasonable cause to support them, to attempt to reach a settlement

through conciliation, and to decide whether to sue or, if the charge is

filed against a state or local government agency, to refer it to the

Attorney General for a decision whether or not to sue.

7

If conciliation

does not result in a settlement that is satisfactory to the charging

party and if the EEOC or the Attorney General decides not to sue,

the EEOC issues a right-to-sue letter to the charging party.

8

Apart

from the requirement of exhaustion of state and local administrative

1

§ 706(c), (d), codified as 42 U.S.C. § 2000e–5(c), (d) (2018); 29 C.F.R.

§ 1601.70 (2019).

2

29 C.F.R. § 1601.74 (2019).

3

§ 706(b), codified as 42 U.S.C. § 2000e–5(b) (2018).

4

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 110–14 (1991);

University of Tennessee v. Elliott, 478 U.S. 788, 795–96 (1986); McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 798–99 (1973). However, the federal courts may be bound

by the unreviewed decisions of state agencies as they affect claims under other federal

statutes. University of Tennessee, 478 U.S. at 796–99.

5

Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982).

6

§ 717, codified as 42 U.S.C. § 2000e–16 (2018); Civil Rights Act of 1991, Pub.

L. No. 102–166, § 321, 105 Stat. 1071, 1097. Employees of the House of

Representatives and the Senate are subject to separate procedures for each house.

Civil Rights Act of 1991, Pub. L. No. 102–166, § 117, 301–19, 105 Stat. 1071, 1080,

1088–96. Presidential employees also are subject to special procedures. Pub. L. No.

102–166 § 320, 105 Stat. 1071, 1096–97.

7

§ 706(f), codified as 42 U.S.C. § 2000e–5(f) (2018); EEOC v. Illinois State

Tollway Auth., 800 F.2d 656 (7th Cir. 1986). The duty of the EEOC to conciliate

charges of discrimination is man datory and can be enforced by judicial review. Mach

Mining, LLC v. EEOC, 575 U.S. 480, 486–95 (2015).

8

§ 706(f), codified as 42 U.S.C. § 2000e –5(f) (2018).