TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................................ ii

STATEMENT OF INTEREST..................................................................... 1

STATEMENT OF THE ISSUE.................................................................... 2

STATEMENT OF THE CASE..................................................................... 2

1. Statement of Facts........................................................................ 2

A. Administrative charges of discrimination............................ 2

B. Complaint .......................................................................... 4

2. District Court Decisions................................................................ 7

ARGUMENT............................................................................................... 9

The claims presented in the complaint are sufficiently similar to the allegations in the plaintiffs’ administrative charges to satisfy exhaustion requirements................................................................... 9

I. The claims in the complaint were essentially identical to the

allegations in the administrative charges.................................... 11

II. Even under the district court’s reading of the charges and

complaint, the plaintiffs’ charges exhausted the claims they

presented in their complaint....................................................... 16

CONCLUSION.......................................................................................... 18

ADDENDUM

42 U.S.C. § 2000e-5(b), (e), (f)........................................ Addendum - 1

42 U.S.C. § 2000e-12...................................................... Addendum - 4

29 C.F.R. § 1601.12........................................................ Addendum - 5

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases page(s)

Cheek v. W. & S. Life Ins. Co.,

31 F.3d 497 (7th Cir. 1994)........................................................... 7, 17

Curtis v. Bembenek,

48 F.3d 281 (7th Cir. 1995)......................................................... 15, 16

EEOC v. Shell Oil Co.,

466 U.S. 54 (1984)........................................................................ 9, 16

Eichman v. Linden & Sons, Inc.,

752 F.2d 1246 (7th Cir. 1985)............................................................. 1

Gawley v. Ind. Univ.,

276 F.3d 301 (7th Cir. 2001)....................................................... 17, 18

Harper v. Godfrey Co.,

45 F.3d 143 (7th Cir. 1995)................................................................ 7

Huri v. Office of the Chief Judge of the Circuit Court,

804 F.3d 826 (7th Cir. 2015)............................................................. 16

Jenkins v. Blue Cross Mut. Hosp. Ins., Inc.,

538 F.2d 164 (7th Cir. 1976)......................................................... 7, 17

Kersting v. Wal-Mart Stores, Inc.,

250 F.3d 1109 (7th Cir. 2001)............................................................. 7

Mach Mining, LLC, v. EEOC,

135 S. Ct. 1645 (2015)........................................................................ 9

Moore v. Vital Prods., Inc.,

641 F.3d 253 (7th Cir. 2011)....................................................... 16, 17

Philbin v. Gen. Elec. Capital Auto Lease, Inc.,

929 F.2d 321 (7th Cir. 1991)............................................................. 10

Sitar v. Ind. Dep’t of Transp.,

344 F.3d 720 (7th Cir. 2003)............................................................. 16

Tamayo v. Blagojevich,

526 F.3d 1074 (7th Cir. 2008)........................................................... 14

Statutes

42 U.S.C. §§ 2000e et seq............................................................................. 1

42 U.S.C. § 2000e-5(b)........................................................................ 1, 9, 10

42 U.S.C. § 2000e-5(e)(1)............................................................................. 9

42 U.S.C. § 2000e-5(f)(1).............................................................................. 9

42 U.S.C. § 2000e-12(a)............................................................................... 1

Regulations

29 C.F.R. § 1601.12(a)............................................................................ 1, 10

29 C.F.R. § 1601.12(b)............................................................................ 1, 10

Rules

Fed. R. App. P. 29(a)................................................................................... 2

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with the interpretation, administration, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In Title VII, Congress conferred upon the EEOC the authority to investigate administrative charges filed by aggrieved individuals and to issue procedural regulations to implement the statutory requirements. 42 U.S.C. §§ 2000e-5(b), 2000e-12(a) (attached at Addendum - 1, 12). The EEOC has accordingly promulgated regulations governing the content of discrimination charges. See 29 C.F.R. §§ 1601.12(a), (b) (attached at Addendum - 5).

Such charges serve as the initiation point for the EEOC’s enforcement efforts under Title VII, as well as for the private enforcement that this Court has recognized as critical to the statutory scheme. See, e.g., Eichman v. Linden & Sons, Inc., 752 F.2d 1246, 1249 (7th Cir. 1985) (recognizing “Congress’ desire to encourage the enforcement of Title VII through the private attorney general concept”)

In this case, the district court dismissed the complaint on the grounds that the plaintiffs had failed to exhaust their administrative remedies by including their allegations in the EEOC charges. In reaching that conclusion, the court not only misinterpreted the content of the plaintiffs’ charges, but also misapplied the legal standards governing Title VII administrative exhaustion. Because the correct interpretation and application of these standards is an issue of critical importance to the EEOC, the agency respectfully offers its views to this Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE[1]

Whether the plaintiffs sufficiently exhausted their administrative remedies in their EEOC charges to support the claims in their complaint.

STATEMENT OF THE CASE

1. Statement of Facts

A. Administrative charges of discrimination

On February 18, 2016, plaintiffs Stephanie Galan, Jessica Galan, Kevin Zuniga, Antoino Zuniga, Antoinette DelReal, and Stacy DelReal, who are all Hispanic, filed administrative charges of discrimination against Ford, alleging “[d]iscrimination in hiring based on race and/or national origin.” District Court docket no. (“R.”) 3-1 at 4-15. On March 7, 2016, plaintiff Martin Chaidez, who is also Hispanic, filed a similar charge against Ford, also alleging “[d]iscrimination in hiring based on race and/or national origin.” R.3-1 at 2-3.

In their charges, each plaintiff alleged that at various times between September 2014 and September 2015, he or she had applied “to be a line worker at the Ford Motor Company plant in Harvey, Illinois (‘Ford’) through the Harvey, Illinois unemployment office.” R.3-1 at 3, 5, 7, 9, 11, 13, 15. Each also alleged that he or she was qualified for the position and had filled out a pre-employment questionnaire. Id. Stephanie Galan stated that she took a pre-employment basic skills test, R.3-1 at 5, but no other plaintiff so claimed in his or her charge, see R.3-1 at 3, 7, 9, 11, 13, 15.

Chaidez and Stephanie Galan each stated that several months after making their applications, they received letters from Ford informing them that they had not been hired. R.3-1 at 3, 5. Jessica Galan recounted that, when she returned to the Harvey unemployment office “[l]ater in 2015” to seek employment at Ford, she was told to apply online through the Illinois Department of Employment Security website; she did so, but she was never contacted for a line worker job. R.3-1 at 7. The other four plaintiffs alleged that after making their applications they never received any further information about employment at Ford. R.3-1 at 9, 11, 13, 15.

The seven charges all contained the following common allegations. Around 2013, Allan Millender became responsible for establishing hiring practices at Ford’s Harvey plant.[2] R.3-1 at 3, 5, 7, 9, 11, 13, 15. “As part of the hiring process Millender established, line workers were allegedly exclusively hired through the Harvey, Illinois unemployment office.” Id. “By agreement with the Harvey unemployment office, Hispanic applicants are allowed to apply and take pre-employment tests, but rarely pass basic skills testing.” Id. “In the event that Hispanic applicants do pass basic skills testing, their application process is stalled in some other way to preclude employment at Ford,” Hispanic applicants “are rarely, if ever hired,” and “Millender’s agreement with the Harvey unemployment office has ensured a gross underrepresentation of Hispanic works at Ford.” Id. The plaintiffs were aware of several non-Hispanic individuals who had been hired at Ford through the Harvey unemployment office and/or without any pre-employment testing. Id. Accordingly, “Ford and its agent Millender have created a process to either intentionally discriminate against [the charging parties] on the basis of [their] race and/or have created a hiring process that has a disparate impact on Hispanic applicants.” Id.

B. Complaint

After the EEOC dismissed the charges and issued right-to-sue notices, the plaintiffs filed suit. In their class complaint, the plaintiffs allege that Ford’s hiring practices at the Harvey facility constituted disparate treatment and/or disparate impact discrimination against Hispanic applicants. R.3 at 9-12. They allege that “[p]laintiffs, all Hispanic and/or Latino applicants, were denied employment at the Plant on the basis of their race and or ethnic descent,” and “Ford’s hiring practice has produced a primarily African American workforce at the Plant to the overwhelming detriment of Hispanic and/or Latino applicants.” R.3 at 1, 4. According to the complaint, “[t]he dearth of Hispanic and/or Latino line workers at the Plant is the result of its application process. Either the pre-employment testing creates an impermissibly adverse impact on Hispanics and/or Latinos, or Ford itself is excluding those of Hispanic and/or Latino descent from being processed for hire.” R.3 at 5. The complaint incorporates the statements from the plaintiffs’ charges regarding their qualifications and individual application experiences. R.3 at 2-6.

Under the heading “Intentional Scheme to Exclude Hispanics and/or Latinos from Employment at Ford,” the plaintiffs state that “[a]lternatively, the lack of Hispanic and/or Latino line workers is due to the hiring scheme put in place by Allan Millender[,] the United Auto Workers’ Plant Chairman at the Plant.” R.3 at 7. The complaint states that “the Harvey, Illinois unemployment office, at the direction of, and in concert with Millender, either does not accept, or destroys applications or contact information forms from Hispanic and/or Latino applicants; does not allow the applicants to take pre-employment testing, or otherwise interferes with the applications of Hispanic and/or Latino applicants.” R.3 at 7. The plaintiffs further allege that Ford was or should have been aware of “Millender’s influence and the unlawful hiring practices at the Harvey plant.” R.3 at 7.

According to the complaint, as part of this scheme, “unknown persons within the Harvey, Illinois unemployment office personally distribute contact information forms to Hispanic and/or Latino applicants but either do not forward the information to Ford for further testing, or interfere in some other way with the application process.” R.3 at 8. The plaintiffs noted that while “there are no racial or ethnic identifiers on the contact information forms, individuals at the Harvey, Illinois unemployment office personally observe the applicants when they apply.” R.3 at 8. As a result, “Latino and/or Hispanic applicants who have, in person, submitted contact information forms to certain unknown individuals at the Harvey unemployment office, are not moved forward in the application process and are never allowed to begin pre-employment testing, let alone be hired.” R.3 at 8. The plaintiffs added that “[e]ven if Latino and/or Hispanic applicants have been forwarded to individuals within Ford’s Human Resources or Labor Relations offices to be sent for pre-employment testing . . . individuals in both the Human Resources and Labor Relations offices . . . fail to forward the contact information of Hispanic and/or Latino applicants to its testing facility for hire.” R.3 at 8-9.

In Count I, the plaintiffs allege that Ford’s discriminatory hiring practices, “either directly or through its agents,” resulted in “disparate treatment of plaintiffs and a class of Hispanic and/or Latino line worker applicants” in violation of Title VII. R.3 at 10. Count I similarly states that Ford and its agents “engaged in a pattern or practice of intentional discrimination against other similarly situated Hispanic and/or Latino applicants based on their race, and/or national origin.” R.3 at 10. In Count II, the plaintiffs allege that “Ford’s policy and practice of hiring African-American line workers over Hispanics and/or Latinos, either directly or through its agents . . . result[ed] in a significant adverse impact on Plaintiffs and a class of Hispanic and/or Latino line worker applicants.” R.3 at 11.

Ford moved to dismiss the complaint, arguing, in relevant part, that the claims presented in the charges and in the complaint are factually distinct and therefore the plaintiffs failed to exhaust their administrative remedies. R.25 at 6. The plaintiffs responded that the allegations in the complaint mirror the charges. R.29 at 3-4.

2. District Court Decisions

The district court granted Ford’s motion to dismiss, concluding that the plaintiffs had not administratively exhausted their claims. R.32 at 3. The court began by stating the general rule that a claim not “explicitly stated” in the charge cannot be included in the complaint. Id. at 2 (citing Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118 (7th Cir. 2001)). Nonetheless, it explained, such a claim may be pursued in court when “(1) the claim is like or reasonably related to the EEOC charges, and (2) the claim in the complaint reasonably could develop from the EEOC investigation into the original charges.” Id. (quoting Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995) (citing Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc))). The court added, “[a] federal claim and EEOC charge ‘are not alike or reasonably related unless there is a factual relationship between them . . . [that is,] at minimum, [they] describe the same conduct and implicate the same individuals.’” Id. (citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994)). It stated that the purpose of the charge-filing requirement is “to give the EEOC and [the] employer the chance to settle the issue about which the employee complains and put the employer on notice of the offending conduct.” Id. at 2-3 (citation omitted).

The court characterized the plaintiffs’ charges as alleging that “Hispanic applicants are allowed to apply and take pre-employment tests, but rarely pass basic skills testing.” Id. at 3 (emphasis added by court). “However,” the court continued, “the Complaint . . . states that Plaintiffs applied for positions as line workers, but simply received letters stating they would not be hired or were never even contacted,” and only one plaintiff alleged to have been invited to undergo pre-employment testing. Id. The court added that the plaintiffs had “further undermined their claim” by alleging that “the Harvey, Illinois unemployment office . . . either does not accept, or destroys applications or contact information forms from Hispanic and/or Latino applicants; [and] does not allow the applicants to take pre-employment testing.” Id. (emphasis and alteration added by court).

The court continued that the plaintiffs had also contradicted their charges by alleging that “Hispanic or Latino applicants ‘are not moved forward in the application process and are never allowed to begin pre-employment testing.’” Id. (emphasis added by court). The court observed, “[a]ll of Plaintiffs’ EEOC charges asserted that they were allowed to take the pre-employment tests, but that Ford intentionally prevented them from passing the test. Contradictorily, Plaintiffs now assert that Defendants never afforded them the opportunity to take the pre-employment tests, thus preventing Plaintiffs from getting line worker positions.” Id. The court concluded that the plaintiffs had asserted “a novel Complaint in this proceeding” and had not exhausted their administrative remedies, warranting dismissal.

The plaintiffs moved for reconsideration, arguing that the court had erroneously concluded that all of their charges alleged they had undergone pre-employment testing. See generally R.34. The court denied the motion, stating that while it had not previously found that all the charges were identical, the complaint nevertheless “alleges a totally different scheme or agreement [from the charges] . . . wherein Hispanic and/or Latino applicants are completely precluded from ever even taking pre-employment testing.” R.40 at 2-3. The court also repeated its initial conclusion that the charges and complaint contain “conflicting allegations.” Id. at 3.

ARGUMENT

The claims presented in the complaint are sufficiently similar to the allegations in the plaintiffs’ administrative charges to satisfy exhaustion requirements.

Prior to bringing suit under Title VII, an aggrieved individual must first file a charge with the EEOC. 42 U.S.C. §§ 2000e-5(e)(1) (setting forth circumstances under which “[a] charge under this section shall be filed . . .”), (f)(1) (providing aggrieved individuals with private-suit rights following EEOC processing of a charge) (attached at Addendum - 1, 2); see also Mach Mining, LLC, v. EEOC, 135 S. Ct. 1645, 1649, 1651 (2015) (recognizing that “[t]he [Title VII enforcement] process generally starts when ‘a person claiming to be aggrieved’ files a charge of an unlawful workplace practice with the EEOC,” and “[a]n employee, for example, may bring a Title VII claim only if she has first filed a timely charge with the EEOC”).

Title VII “prescribes only minimal requirements pertaining to the form and content of charges of discrimination.” EEOC v. Shell Oil Co., 466 U.S. 54, 67 (1984). Accordingly, it is well-recognized that “a charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit.” Id. at 68. Title VII specifies that “[c]harges shall be in writing under oath or affirmation.” 42 U.S.C. § 2000e-5(b) (attached at Addendum - 1). With respect to the content of such charges and any other aspects of their form besides being required to be “in writing” and “under oath,” Congress expressly left the details to the EEOC, stating: “Charges . . . shall contain such information and be in such form as the Commission requires.” Id. To this end, Congress directed the EEOC to promulgate procedural regulations to implement Title VII. See 42 U.S.C. § 2000e-12(a) (EEOC has “authority . . . to issue . . . suitable procedural regulations” to carry out provisions of Title VII) (attached at Addendum - 4).

The regulations governing the content of Title VII charges provide that a charge should include “[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3) (attached at Addendum - 5). However, “[n]otwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b) (attached at Addendum - 5); see also Philbin v. Gen. Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 n.2 (7th Cir. 1991) (“In § 1601.12(b), the EEOC relaxed the requirements [of § 1601.12(a)] by declaring that notwithstanding § 1601.12(a) a charge was sufficient if it was . . . precise enough to identify the parties and generally describe the complained of practices.”).

In this case, the district court erred in dismissing the complaint for failure to exhaust administrative remedies on the ground that the claims in the complaint were different from the allegations in the plaintiffs’ EEOC charges. To the contrary, the allegations in the charges were functionally identical to the claims in the complaint. Moreover, even assuming the district court’s characterization of the charges and the complaint were correct, the allegations and claims in the complaint were sufficiently like or reasonably related to the charges to be deemed administratively exhausted. The plaintiffs thus satisfied the applicable exhaustion requirements, and the district court’s contrary conclusion was reversible error.

I. The claims in the complaint were essentially identical to the allegations in

the administrative charges.

As a factual matter, especially when viewed in light of the standards in 29 C.F.R. § 1601.12, there was no meaningful distinction between the allegations in the charges and those in the complaint. In both, the plaintiffs specifically alleged that Ford subjected them to race and/or national origin discrimination as a consequence of its hiring practices at its plant in Harvey, Illinois. See supra pp. 2-6. Both describe each plaintiff’s unsuccessful application to Ford through the Harvey unemployment office, the same hiring process and practices, and the same officials responsible for the alleged discrimination. See id. The charges and complaint also each clearly allege that Ford’s hiring practices at the plant constitute both disparate treatment and disparate impact discrimination in violation of Title VII. See id. Accordingly, the charges and complaint present the same factual and legal allegations of discrimination.

According to the district court, one way in which the complaint was materially inconsistent with the charges was that, while the charges alleged that Hispanic applicants were allowed to take Ford’s pre-employment tests, the complaint alleged that Ford had not allowed any Hispanic applicants to do so. See R.32 at 3. This is incorrect. As described supra pp. 2-3, the plaintiffs’ charges all alleged generally that Ford permitted Hispanic applicants to apply and take pre-employment tests, but only one of the plaintiffs—Stephanie Galan—alleged that she had actually been allowed to take a pre-employment test. The district court distinguished these charge allegations from the complaint, citing paragraph 33 of the complaint and stating that the “[p]laintiffs further undermined their claim by alleging that ‘[a]s part of the scheme, the Harvey, Illinois unemployment office . . . either does not accept, or destroys applications or contact information forms from Hispanic and/or Latino applicants; [and] does not allow the applicants to take pre-employment testing.’” Id. (emphasis and alteration by court).

However, the district court mischaracterized the complaint. In fact, paragraph 33 of the complaint lists the three methods of alleged discrimination as alternatives, not as a description of what happened to every single Hispanic applicant. This paragraph provides that Ford “either does not accept, or destroys applications or contact information forms from Hispanic and/or Latino applicants; does not allow the applicants to take pre-employment testing, or otherwise interferes with the applications of Hispanic and/or Latino applicants.” R.3 at 7 (emphasis added).

The district court failed to recognize that the complaint presents these three scenarios as alternatives to which some, but not necessarily all, of the plaintiffs had been subjected. Instead, it described the complaint’s language incorrectly, improperly inserting the word “and” between the first and second methods and omitting any mention of the third method and the key qualifying term “or.” See R.32 at 3. Thus, properly read, the complaint did not allege that Ford both refused to accept and/or destroyed applications and refused to permit Hispanic applicants to take pre-employment testing. See R.32 at 3. Rather, the complaint provided that each of these tactics occurred vis-à-vis different individuals. Most importantly, this latter, correct description of the complaint is consistent with the allegations in the plaintiffs’ charges.

This correct description of the allegations in paragraph 33 is also consistent with other allegations in the complaint. For example, the complaint also alleged that while each plaintiff applied for a job at Ford, only one was invited to take the pre-employment testing, and none ever heard back from Ford after such applications or testing, respectively. R.3 at 5-6. These individualized allegations are incompatible with the district court’s interpretation of paragraph 33 as alleging that Ford did not permit any Hispanic applicants to undergo pre-employment testing. However, they are consistent with the correct reading of paragraph 33 as alleging alternative methods of discrimination.

The district court similarly erred in its interpretation of paragraph 41 of the complaint, which states that “Latino and/or Hispanic applicants who have, in person, submitted contact information forms to certain unknown individuals at the Harvey unemployment office, are not moved forward in the application process and are never allowed to begin pre-employment testing, let alone be hired.” R.3 at 8. The district court again misinterpreted this paragraph as if it alleged that every Hispanic applicant, in every instance, was denied an opportunity to test. R.32 at 3.

But that is not what paragraph 41 says. Instead, it correctly asserts, in a general manner, that there are Hispanic applicants who were never permitted to take pre-employment testing—an allegation fully consistent with the administrative charges. The fact that one plaintiff out of seven was permitted to take such testing does not mean that other Hispanics, be they the other plaintiffs or other unnamed class members, were never permitted to do so. Moreover, in the very next paragraph, the plaintiffs qualified the assertion in paragraph 41, stating “[e]ven if Latino and/or Hispanic applicants have been forwarded to individuals within Ford’s Human Resources or Labor Relations offices to be sent for pre-employment testing, . . . [Ford] fail[ed] to forward the contact information of Hispanic and/or Latino applicants to its testing facility for hire.” R.3 at 8-9 (emphasis added).

The court also misinterpreted the charges on this point, stating that “[a]ll of Plaintiffs’ EEOC charges asserted that they were allowed to take the pre-employment tests, but that Ford intentionally prevented them from passing the test.” R.32 at 3. This is incorrect, as only Stephanie Galan alleged she had actually been permitted to take the test. See supra pp. 2-3.

It is well-settled that on a motion to dismiss, this Court “construe[s] the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008); see also Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995) (recognizing, in review of a district court’s grant of a motion to dismiss, that the court “resolve[s] all ambiguities in favor of the plaintiff”). Read most favorably to the plaintiffs, the complaint alleges that Hispanic applicants were either not moved forward beyond the application-submission stage of the hiring process, or if they were, their information was not forwarded to the testing facility for hiring. See R.3 at 8-9. This understanding of the complaint is consistent with the charge and complaint allegations of every plaintiff who was not invited for pre-employment testing, as well as the one plaintiff who was invited to test but was not hired. But instead of reaching this conclusion, the district court again failed to construe the allegations in the complaint in the light most favorable to the plaintiffs, and disregarded the “even if” qualification in paragraph 42 of the complaint.

The district court also erred in stating that while the charges alleged that “Hispanic applicants are allowed to apply and take pre-employment tests, but rarely pass basic skills testing,” “the Complaint . . . states that Plaintiffs applied for positions as line workers, but simply received letters stating they would not be hired or were never even contacted.” R.32 at 3 (emphasis added by court). Again, both sets of allegations are consistent. In each, the plaintiffs allege that Hispanic applicants were allowed to apply for line worker positions, which every plaintiff did; only one Hispanic applicant was invited to take pre-employment tests; and none of the plaintiffs were hired: Chaidez and Stephanie Galan received letters saying they would not be hired, and the remaining plaintiffs were never even contacted regarding their applications. See supra pp. 2-6.

Particularly given that any ambiguity in the details should have been resolved in the plaintiffs’ favor, Bembenek, 48 F.3d at 283, the district court should have found no inconsistency between the allegations in the charge and those in the complaint for purposes of administrative exhaustion. The court’s contrary ruling constitutes reversible error.

II. Even under the district court’s reading of the charges and complaint, the

plaintiffs’ charges exhausted the claims they presented in their complaint.

For the reasons explained in section I above, the district court was incorrect that the claims in the complaint deviated materially from the allegations in the charges. Nevertheless, even accepting the district court’s reading of the charges and complaint, the allegations in each were still sufficiently like or reasonably related to one another to satisfy the administrative exhaustion requirement.

“Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC.” Moore v. Vital Prods., Inc., 641 F.3d 253, 256 (7th Cir. 2011) (quoting Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir. 2003)). Nevertheless, it is equally well-recognized that “a Title VII plaintiff need not include in her charge every fact that, individually or in combination, forms the basis of a subsequent lawsuit’s claims.” Huri v. Office of the Chief Judge of the Circuit Court, 804 F.3d 826, 831 (7th Cir. 2015) (quoting Cheek, 31 F.3d at 500). As the Supreme Court has emphasized, “a charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit.” Shell Oil, 466 U.S. at 68. Thus, this Court holds that “if certain claims are not included in an EEOC charge, a plaintiff can still bring them if they are ‘like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations.’” Moore, 641 F.3d at 256 (quoting in part Jenkins, 538 F.2d at 167).

To be “like or reasonably related,” there must be a “factual relationship” between the claims in the complaint and the charge; they each “must, at minimum, describe the same conduct and implicate the same individuals.” Cheek, 31 F.3d at 501 (citations omitted). “The purpose of this requirement is to afford the EEOC and the employer an opportunity to settle the dispute through conference, conciliation and persuasion, and also to give the employer some notice of the conduct of which the employee is aggrieved.” Gawley v. Ind. Univ., 276 F.3d 301, 313-14 (7th Cir. 2001). This test “is satisfied if there is a reasonable relationship between the allegations in the charge and the claims in the complaint, and the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.” Cheek, 31 F.3d at 500.

Even viewing the charges and the complaint from the district court’s perspective, this standard is satisfied here. The plaintiffs’ charges described in significant detail the ways in which they believed Ford’s hiring practices at the Harvey plant violated Title VII as to Hispanic line worker applicants. The charges were more than sufficient to give rise to an EEOC investigation into matters that the plaintiffs subsequently alleged in their complaint because their subject matter involved the same course of conduct and implicated the same individuals.

For example, the district court characterized the complaint as deviating from the charges by alleging that the plaintiffs, except for Stephanie Galan, were not allowed to undergo pre-employment testing. R.32 at 3. Even if this were so, the claim in the complaint certainly could be expected to grow out of an EEOC investigation of these charges alleging systemic discrimination against Hispanics in the Harvey plant’s hiring practices for the line worker position. Notably, the district court did not dispute that the plaintiffs had alleged in their charges that Ford had engaged in systemic discrimination against Hispanic applicants for line worker positions at its Harvey plant. Nor did the court dispute that the plaintiffs presented such a claim in their complaint.

Indeed, it is difficult to conceive of how an EEOC investigation of the allegations in these charges could fail to implicate the claims in the complaint, which all pertain to the same hiring practices involving the same workers applying for the same positions as those identified in the charges. Likewise, because the differences between the charges and the complaint were minimal at best, and certainly immaterial for exhaustion purposes, there can be no reasonable dispute that Ford had adequate notice of the allegations that ultimately were presented in the complaint. See Gawley, 276 F.3d at 313-14.

CONCLUSION

For the foregoing reasons, the EEOC respectfully requests that this Court vacate the district court’s dismissal of the case and remand the matter to the district court for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

42 U.S.C.A. § 2000e-5

§ 2000e-5. Enforcement provisions

. . . .

(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d). If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d), from the date upon which the Commission is authorized to take action with respect to the charge.

. . . .

(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system

(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by section 1981a of this title, liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney; payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and determine case; assignment of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d), the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.

42 U.S.C.A. § 2000e-12

§ 2000e-12. Regulations; conformity of regulations with administrative procedure provisions; reliance on interpretations and instructions of Commission

(a) The Commission shall have authority from time to time to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter. Regulations issued under this section shall be in conformity with the standards and limitations of subchapter II of chapter 5 of Title 5.

(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission, or (2) the failure of such person to publish and file any information required by any provision of this subchapter if he pleads and proves that he failed to publish and file such information in good faith, in conformity with the instructions of the Commission issued under this subchapter regarding the filing of such information. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect, or (B) after publishing or filing the description and annual reports, such publication or filing is determined by judicial authority not to be in conformity with the requirements of this subchapter.

29 C.F.R. § 1601.12

§ 1601.12 Contents of charge; amendment of charge.

(a) Each charge should contain the following:

(1) The full name, address and telephone number of the person making the charge except as provided in § 1601.7;

(2) The full name and address of the person against whom the charge is made, if known (hereinafter referred to as the respondent);

(3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices: See § 1601.15(b);

(4) If known, the approximate number of employees of the respondent employer or the approximate number of members of the respondent labor organization, as the case may be; and

(5) A statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a State or local agency charged with the enforcement of fair employment practice laws and, if so, the date of such commencement and the name of the agency.

(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. A charge that has been so amended shall not be required to be redeferred.

[1] The EEOC takes no position on any other issue in this case.

[2] Although the plaintiffs did not identify Millender’s job title in their charges, they would later describe him in the complaint as “the United Auto Workers’ Plant Chairman at the Plant.” R.3 at 7. See infra p. 5.