7th Cir. Won’t Let EEOC Skip Pre-Suit Conciliation

When CVS fired store manager Tonia Ramos in 2011, it offered her its standard severance agreement that included a broad release of waivable claims, including claims under Title VII, but explicitly preserving the right to participate in any proceeding enforcing discrimination laws.  Tonia signed.  A month later she filed a charge with the EEOC claiming that CVS fired her because of her age and sex.

The EEOC sent CVS a letter charging that its use of the severance agreement with such a broad release constituted a pattern or practice of resisting employees’ exercise of their rights under Title VII.  The letter gave CVS 14 days to sign a consent decree.  CVS repeatedly asked the agency to comply with the pre-suit conciliation procedures of section 706.  The EEOC said it didn’t have to because it was proceeding under 707(a) and therefore wasn’t bound by 706.

When CVS declined to sign, the EEOC filed suit, pointing to the release in the severance agreement as proof of a pattern or practice of resisting enjoyment of rights under Title VII.  The district court granted summary judgment for CVS because of the agency’s failure to abide by the pre-suit conciliation requirement of section 706.

On Dec. 17 the Seventh Circuit unanimously affirmed, making short shrift of the EEOC’s argument that it isn’t bound by the section 706 conciliation requirement when it proceeds under section 707(a).  One problem with the argument, the court said, is that it proves too much: “it reads Section 707(e)–which requires all actions under 707 to be ‘conducted in accordance with the procedures set forth in [Section 706]’—out of the statute.”

The case is EEOC v. CVS, No. 1:14-cv-00863 (7th Cir., Dec. 17, 2015).

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