By Gerald L. Maatman, Jr.

The nightmare scenario for a corporate counsel is being on the receiving end of an EEOC lawsuit where the Commission sues on behalf of a class of allegedly injured individuals based on a purported discriminatory pattern or practice. More often than not, the EEOC does not limit the temporal scope of its claims, and sues for relief since the “inception” of the alleged discriminatory pattern or practice. This pleading theory poses significant risks and financial exposure to an employer, since such a litigation position is unencumbered by any statute of limitations. Indeed, having briefed this issue multiple times, the refrain I have heard from the government is “We [the EEOC] don’t have a statute of limitations for our lawsuits…”

Employers have racked victory after victory in challenging this litigation strategy by invocation of the 300-day statute of limitations in Title VII of the Civil Rights Act of 1964 (i.e, claims can only be asserted that arise within 300 days of the initial EEOC administrative charge that triggered the subsequent EEOC investigation and lawsuit). We have blogged on these decisions previously (here, here, and here). We also recently published a law review article in the ABA Journal of Labor & Employment Law on this body of case law.

This issue surfaced again this week in one of the key lawsuits brought by the EEOC over the past year – EEOC v. Freeman, a case now pending in the U.S. Court of Appeals for the Fourth Circuit. Our previous blog posts on this litigation are here and here. The case is currently pending for oral argument over the EEOC’s appeal of a summary judgment order granted to the employer (on various grounds, including previous rulings rejecting the EEOC’s litigation strategy relative to the statute of limitations).

Most recently, after briefing was concluded, the EEOC submitted an additional letter brief to the Fourth Circuit on the statute of limitations issue. The letter brief is here.

The district court’s ruling in EEOC v. Freeman seems us to have been on very solid ground, so one wonders if the EEOC has selected a poor candidate in which to raise the statute of limitations issue at the appellate level.

Implications For Employers

The growing body of case law favors the defense arguments in this area on the statute of limitations defense in EEOC lawsuits. Courts have overwhelmingly rejected the notion that the EEOC should have carte blanche to litigate in derogation of Title VII’s statute of limitations. Stay tuned for further adjudication of this issue in the Fourth Circuit.

Readers can also find this post on our EEOC Countdown blog here.