Public Actions

Author:George Rutherglen

Title VII authorizes the EEOC to sue private employers, and the Attorney General to sue state and local government employers.[499] In addition, it authorizes EEOC commissioners to initiate administrative proceedings by filing charges with the EEOC.[500] Public actions can be filed only after investigation and conciliation efforts have failed, and in any event, no sooner than 30 days after a charge has been pending in the EEOC, after the 60-day deferral period.[501] In general, more exacting compliance with administrative procedures is required in public actions than in private actions because the EEOC is held responsible for its own mistakes.[502] However, a very broadly worded charge filed by an EEOC commissioner was held sufficient to meet the requirements of specificity and notice prescribed by Title VII and EEOC regulations.[503] If a public action is filed, the charging party has a right to intervene, and if a private action is filed, the EEOC or the Attorney General may seek permissive intervention after certifying that the case is of general public importance.[504]

Public actions may be brought under either section 706 or section 707.[505] Section 706 actions usually allege discrimination against a small number of individuals, whereas section 707 actions allege a "pattern or practice" of discrimination against a class of employees.

Nothing turns on the difference between the two sections, however.

The Supreme Court has held that the EEOC or the Attorney General can bring section 706 actions on behalf of a class of employees without certification of a class action under Federal Rule of Civil Procedure 23.[506] Moreover, the allocation of authority to sue is the same in section 707 actions as it is in section 706 actions. The EEOC can sue private employers, and the Attorney General can sue state and local government employers. The language of the statute, however, is confused on this point, and it was only clarified by an executive...

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