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

STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1)....................................................... 1

FACTUAL STATEMENT............................................................................................................ 2

PANEL OPINION........................................................................................................................ 2

ARGUMENT................................................................................................................................. 4

I.... The Panel’s Holding that the EEOC Must Always Have a Charge of Discrimination In Order to File Suit Conflicts With Prior Case Law of the Supreme Court and of This Court, and Creates a Circuit Split With Four Other Courts of Appeal......................................................... 4

II. The Panel’s Misinterpretation of the “Resistance” Language in § 707 Conflicts With the Plain Language of the Statute, With Teamsters, and With Supreme Court Law on Statutory Construction............................................................................................................................................ 11

CONCLUSION............................................................................................................................ 15

CERTIFICATE OF COMPLIANCE.......................................................................................... 17

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases

Brooks v. Walls, 297 F.3d 518 (7th Cir. 2002)............................................................................... 8

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)............................................. 5, 14

Council 31, AFSCME, AFL-CIO v. Ward, 978 F.2d 373 (7th Cir. 1992)............................ 12, 13

EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996).............................................................. 15

EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424 (7th Cir. 1992)..................... 14

EEOC v. Cont’l Oil Co., 548 F.2d 884 (10th Cir. 1977)............................................................ 1, 9

EEOC v. Doherty Enters., Inc., ___ F. Supp. 3d ___, 2015 WL 5118067
(S.D. Fla. Sept. 1, 2015)..................................................................................................... 9, 13

EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963 (7th Cir. 1996).................................... passim

EEOC v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013)........................................................ 5

EEOC v. Shell Oil Co., 466 U.S. 54 (1984)............................................................................. 4, 6, 7

EEOC v. Univ. of Penn., 493 U.S. 182 (1990)....................................................................... 4, 6, 7

General Tel. Co. of the NW v. EEOC, 446 U.S. 318 (1980).................................................. 1, 6, 11

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977)...................................... 1, 11, 12, 13

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015)............................................................. 6, 10

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)................................................................ 14

Mojica v. Gannett Co., 7 F.3d 552 (1993)...................................................................................... 8

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).................................................. 14

Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013).................................................... 13

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)...................................................................... 14

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)............................................................................ 14

Russello v. United States, 464 U.S. 16 (1983)............................................................................. 1, 5

Serrano & EEOC v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012)........................................ 1, 9, 13

United States v. Allegheny-Ludlum Indus., 517 F.2d 826 (5th Cir. 1975)................................ 1, 9

United States v. Fresno Unified Sch. Dist., 592 F.2d 1088 (9th Cir. 1979)............................... 1, 9

Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013)...................................................... 6

Statutes

42 U.S.C. § 1981a(a)(1), (c).......................................................................................................... 10

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq................................. passim

Section 703, 42 U.S.C. § 2000e-2............................................................................ 3, 5, 11, 12

Section 704, 42 U.S.C. § 2000e-3.................................................................................. 3, 5, 12

Section 704(a), 42 U.S.C. § 2000e-3(a)........................................................................... 12

Section 705, 42 U.S.C. § 2000e-4.......................................................................................... 10

Section 706, 42 U.S.C. § 2000e-5.................................................................................... passim

Section 706(a), 42 U.S.C. § 2000e-5(a)........................................................................... 11

Section 706(b), 42 U.S.C. § 2000e-5(b).................................................................... passim

Section 706(e), 42 U.S.C. § 2000e-5(e)........................................................................... 12

Section 706(f), 42 U.S.C. § 2000e-5(f)....................................................................... 3, 4, 7

Section 707, 42 U.S.C. § 2000e-6.................................................................................... passim

Section 707(a), 42 U.S.C. § 2000e-6(a)......................................................................... 2, 3

Section 707(c), 42 U.S.C. § 2000e-6(c).................................................................... 4, 5, 11

Section 707(d), 42 U.S.C. § 2000e-6(d)............................................................................ 5

Section 707(e), 42 U.S.C. § 2000e-6(e)......................................................................... 4, 5

Regulations & Rules

29 C.F.R. § 1601.11........................................................................................................................ 8

Fed. R. App. P. 28(j)................................................................................................................ 9, 13

Fed. R. App. P. 32....................................................................................................................... 17

Fed. R. App. P. 35(b)(1)................................................................................................................ 1

Seventh Cir. R. 32(b)................................................................................................................... 17

Seventh Cir. R. 40(e)..................................................................................................................... 8

Other Authorities

Charge Statistics, EEOC, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
(last visited Jan. 28, 2016)..................................................................................................... 10

Charles A. Sullivan, The Puzzling Persistence of Unenforceable Contract Terms, 70 Ohio St. L.J. 1127 (2009).............................................................................................................................. 15

STATEMENT PURSUANT TO F ED. R. APP. P. 35(b)(1)

The EEOC petitions for rehearing or rehearing en banc because the panel decision in this case conflicts with opinions of the Supreme Court and of this Court. The panel’s holding that the EEOC may never file suit in the absence of a charge of discrimination conflicts with General Telephone Company of the Northwest v. EEOC, 446 U.S. 318 (1980), and EEOC v. Harvey L. Walner & Associates, 91 F.3d 963 (7th Cir. 1996). Moreover, the panel’s assignment of identical meaning to §§ 706 and 707 of Title VII, notwithstanding their differing language, contravenes the Supreme Court’s mandate in Russello v. United States, 464 U.S. 16, 23 (1983), and conflicts with International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). Fed. R. App. P. 35(b)(1)(A).

This proceeding also involves one or more questions of exceptional importance because the panel’s holding that the EEOC may never file suit without a charge of discrimination directly conflicts with the authoritative decisions of four other United States Courts of Appeals: Serrano & EEOC v. Cintas Corp., 699 F.3d 884 (6th Cir. 2012); United States v. Fresno Unified Sch. Dist., 592 F.2d 1088 (9th Cir. 1979); EEOC v. Cont’l Oil Co., 548 F.2d 884 (10th Cir. 1977); and United States v. Allegheny-Ludlum Indus., 517 F.2d 826 (5th Cir. 1975). The panel’s decision also gives employers carte blanche to include unenforceable waivers of the right to file charges or otherwise communicate with the EEOC in employment agreements, and leaves the EEOC with no way to protect these vital aspects of its enforcement scheme. Fed. R. App. P. 35(b)(1)(B).

FACTUAL STATEMENT [1]

This appeal arose out of an EEOC enforcement action brought under Section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6. The EEOC sued CVS Pharmacy, Inc. (“CVS”) in 2014, alleging that a separation agreement (“SA”) CVS offered its terminated employees over a period of several years violated Title VII because it constituted resistance to the employees’ rights to file charges with the EEOC, communicate with the agency, and participate in agency proceedings. Slip op. 6. Because this suit was filed pursuant to § 707 of Title VII, rather than § 706, and because it did not have a charge of discrimination as its jurisdictional basis, the EEOC did not engage in pre-suit conciliation with CVS as outlined in § 706(b). Id. at 5.

CVS moved to dismiss or for summary judgment, arguing that (1) the SA did not interfere with signatories’ Title VII rights; (2) an actionable § 707(a) violation must allege discrimination or retaliation; and (3) the EEOC was obligated to engage in conciliation prior to suit. Slip op. 6. The district court granted summary judgment for CVS, holding that the EEOC had failed to meet its pre-suit obligation to conciliate. Id.

PANEL OPINION

A panel of this Court affirmed. It held, first, that the EEOC’s suit against CVS did not state a Title VII claim because “Section 707(a) … simply allows the EEOC to pursue multiple violations of Title VII (i.e., unlawful employment practices involving discrimination or retaliation defined in Sections 703 and 704) in one consolidated proceeding.” Slip op. 12.[2] Next, the panel held, “the EEOC was required to comply with all of the pre‐suit procedures contained in Section 706, including conciliation.” Id. at 14. According to the panel, otherwise “the EEOC would never be required to engage in conciliation before filing a suit because it could always contend that it was acting pursuant to its broader power under Section 707(a)…. But Congress has made it clear that it prefers for the EEOC to resolve Title VII disputes by informal methods of dispute resolution and to only resort to litigation when those methods fail.” Id. at 14-15.

Finally, the panel stated that it “clarif[ied] a statement made in dicta” in Walner, 91 F.3d at 968: that, in the course of amending Title VII, “‘Congress … transferred to EEOC authority previously vested in the Attorney General under § 707 … to institute “pattern or practice” lawsuits on its own initiative—i.e., without certain of the prerequisites to a civil action under [Section 706(f)].’” Slip op. 15-16. According to the panel, “[t]hat statement should not be interpreted as permitting the EEOC to proceed without a charge…. The 1972 amendments gave the EEOC the power to file “pattern or practice” suits on its own, but Congress intended for the agency to be bound by the procedural requirements set forth in Section 706, including proceeding on the basis of a charge.” Id. at 16.

ARGUMENT

I. The Panel’s Holding that the E EOC Must Always Have a Charge of Discrimination In Order to File Suit Conflicts With Prior Case Law of the Supreme Court and of This Court, and Creates a Circuit Split With Four Other Courts of Appeal.

In purporting to “clarify” this Court’s opinion in Walner, the panel held that the EEOC is bound in all cases by the procedural requirements of § 706 of Title VII, including the existence of a charge of discrimination. Slip op. 16. The panel claimed to draw support for this conclusion from the language of § 707 and from two Supreme Court cases: EEOC v. University of Pennsylvania, 493 U.S. 182 (1990), and EEOC v. Shell Oil Co., 466 U.S. 54 (1984). The panel opinion misunderstands both the statutory language and the case law, and, far from clarifying Walner, ultimately turns the cited passage directly on its head—without the required approval of the Court as a whole.

One of the explicit differences between §§ 706 and 707 is that, while a charge of an unlawful employment practice is a prerequisite to suit under § 706, see 42 U.S.C. § 2000e-5(f)(1), § 707 contains no such prerequisite. Rather, § 707(a) provides that the government may bring suit “whenever” it “has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter ….” (Emphasis added.) The 1972 Amendments to Title VII added subsections (c) through (e) to § 707, but, contrary to the panel’s characterization (slip op. 16), none of these provisions limits the EEOC’s § 707 suit authority to the existence of a charge. Subsection (c) simply states that, when the Attorney General’s functions are ultimately transferred to the EEOC in 1974, the EEOC “shall carry [them] out … in accordance with subsections (d) and (e) of this title.” Subsection (e) then states that, as of March 24, 1972, the EEOC “shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be aggrieved or by a member of the Commission. All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 of this title.”

In stark contrast to § 706, nothing in § 707 states that the EEOC must have an underlying charge in all cases in order to file suit. What §§ 707(c) and (e) do make explicit, and the EEOC does not dispute, is that, when the EEOC is acting on a charge of discrimination, the EEOC is obliged to follow the full panoply of pre-suit procedures in § 706, including conciliation. But, as the Commission explained in its briefs to the panel, there is no basis to presume that Congress used such different language in drafting §§ 706 and 707, and again when amending the statute, while intending it all to mean the same thing. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62-63 (2006) (in construing §§ 703 and 704 of Title VII, “the question is whether Congress intended its different words to make a legal difference. We normally presume that, where words differ as they differ here, ‘“Congress acts intentionally and purposely in the disparate inclusion or exclusion.”’”) (citing and quoting Russello, 464 U.S. at 23); EEOC v. Mach Mining, LLC, 738 F.3d 171, 174 (7th Cir. 2013) (noting “the Supreme Court’s recent admonition that ‘Congress’ special care in drawing so precise a statutory scheme’ as Title VII ‘makes it incorrect to infer that Congress meant anything other than what the text does say’”) (quoting Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2530 (2013)), vacated and remanded on other grounds, 135 S. Ct. 1645 (2015).

When the Supreme Court discussed the 1972 amendments to Title VII and their impact on § 707 in General Telephone, it plainly contemplated the authority of the EEOC to bring § 707 suits without a charge, just as the Attorney General did before it. The Court explained,

Prior to 1972, the only civil actions authorized other than private lawsuits were actions by the Attorney General upon reasonable cause to suspect “a pattern or practice” of discrimination. These actions did not depend upon the filing of a charge with the EEOC; nor were they designed merely to advance the personal interest of any particular aggrieved person.… The 1972 amendments, in addition to providing for a § 706 suit by the EEOC pursuant to a charge filed by a private party, transferred to the EEOC the Attorney General’s authority to bring pattern-or-practice suits on his own motion.… Senator Williams then noted that, upon the transfer, “[t]here will be no difference between the cases that the Attorney General can bring under section 707 as a ‘pattern or practice’ charge and those which the [EEOC] will be able to bring.”… Senator Javits agreed with both Senators: “The EEOC … has the authority to institute exactly the same actions that the Department of Justice does under pattern or practice.”

Gen. Tel., 446 U.S. at 325, 327, 328.

The two Supreme Court cases cited by the panel opinion on this point—University of Pennsylvania and Shell Oil—are not to the contrary. Neither case purports to construe the scope of the EEOC’s litigation authority under § 707 or, indeed, the EEOC’s litigation authority at all; both involve aspects of the charge-filing process and the prerequisites for judicial enforcement of administrative subpoenas. See Univ. of Pa., 493 U.S. at 190 (reviewing Title VII charge-filing and enforcement procedure in context of addressing whether peer review materials should be privileged from disclosure in EEOC investigations); Shell Oil, 466 U.S. at 65 (holding that “the existence of a charge that meets the requirements set forth in § 706(b) … is a jurisdictional prerequisite to judicial enforcement of [an EEOC] subpoena”). In other words, these cases address the respective scenarios before the Court at the time, which both involved charge-filing and its connection to subpoena enforcement. They do not stand for the proposition that charges are required in all § 707 enforcement actions.

As to Walner, the question in that case was whether the EEOC may seek injunctive or other relief in court under § 706 for instances of discrimination as to which there was no “independently sufficient charge.” 91 F.3d at 971. The Walner panel began its legal discussion by reviewing the effects of the 1972 amendments to Title VII, noting that they gave the EEOC new litigation authority under § 706, and that “Congress also transferred to EEOC authority previously vested in the Attorney General under § 707 of Title VII to institute ‘pattern or practice’ lawsuits on its own initiative—i.e., without certain of the prerequisites to a civil action under § 2000e–5(f).” Id. at 968.

According to the CVS panel opinion, the Walner Court did not mean to suggest in this passage that the EEOC could bring suit under § 707 without a charge; rather, the reference to “on its own initiative” must have been a reference to Commissioner’s Charges. Slip op. 16. That interpretation of Walner is expressly foreclosed, however, on the next page of the decision:

EEOC’s choice to proceed under § 2000e–5 to address Walner’s alleged discrimination against a class of employees required that it have found reasonable cause to believe a valid charge filed in a timely manner. EEOC chose not to proceed under § 2000e–5 upon a Commissioner's charge. See 42 U.S.C. § 2000e–5(b); 29 C.F.R. § 1601.11. Nor did it choose to prosecute under a “pattern or practice” theory pursuant to § 2000e–6.… Its tactical decision required that it have a valid charge supported by a finding of reasonable cause upon which to base its complaint.

Id. at 969 (emphases added). The Walner Court’s meaning on this point was clear: a charge was required in that case because the EEOC chose to and did proceed under § 706 as opposed to § 707. The CVS panel opinion, far from “clarifying” anything about this aspect of Walner, turned this part of the decision on its head.

Not only did the panel’s opinion go far beyond “clarification,” but it exceeded the panel’s judicial authority. This Court has long maintained that “[o]ne panel of this court cannot overrule another implicitly. Overruling requires recognition of the decision to be undone and circulation to the full court under Circuit Rule 40(e).” Brooks v. Walls, 297 F.3d 518, 522 (7th Cir. 2002); cf. Mojica v. Gannett Co., 7 F.3d 552, 557 (1993) (“When sitting en banc, the full court has the power to change general rules stated in previous cases.”). There is no indication in this case that the procedures of Circuit Rule 40(e) were followed, much less that the full Court considered this issue en banc. Accordingly, and with all due respect, the panel was without authority to “clarify” or reinterpret Walner in a manner contrary to the plain language of the decision itself.

The panel’s holding that the EEOC must always have a charge to proceed in § 707 suits also conflicts with the authoritative decisions of the Fifth, Sixth, Ninth, and Tenth Circuit Courts of Appeal.[3] As the Fifth Circuit explained:

Under § 707, the EEOC (formerly the Attorney General) may institute a “pattern or practice” suit anytime that it has “reasonable cause” to believe such a suit necessary.… Section 707 does not make it mandatory that anyone file a charge against the employer or follow administrative timetables before the suit may be brought. It was unquestionably the design of Congress in the enactment of § 707 to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices, at a level which may or may not address the grievances of particular individuals.… Rather, it is to those individual grievances that Congress addressed § 706, with its attendant requirements that charges be filed, investigations conducted, and an opportunity to conciliate afforded the respondent when “reasonable cause” has been found.

Allegheny-Ludlum, 517 F.2d at 843 (internal citations omitted). See also Serrano, 699 F.3d at 896 (observing that “§ 707 permits the EEOC to initiate suit without first receiving a charge filed by an aggrieved individual, as it must when initiating suit under § 706”); Fresno Unified Sch. Dist., 592 F.2d at 1096 n.5 (“Section 707 [] contains no requirement that anyone file a charge.”); Cont’l Oil, 548 F.2d at 890 (noting that § 707 “affords a broad based remedy without regard to individual charges or complaints”). Apart from the panel opinion in this case, we are aware of no federal court of appeals decision holding otherwise.

Finally, the panel was simply incorrect when it stated that “the EEOC’s position reads the conciliation requirement out of the statute.” Slip op. 15. Title VII requires the EEOC to engage in § 706’s pre-suit procedures whenever a charge of discrimination is filed, which is true in the vast majority of EEOC cases.[4] The EEOC cannot “opt out” of these procedures in cases when it is acting on a charge of discrimination,[5] and it cannot proceed under § 707 in any non-pattern-or-practice case. Nor would the EEOC generally have any incentive to “opt out” of § 706 procedures simply to avoid conciliation, given the exclusive availability of a jury trial and compensatory and punitive damages under § 706. See 42 U.S.C. § 1981a(a)(1), (c).

But, as § 706 itself makes clear, the EEOC’s obligation to conciliate flows from the existence of a charge. The sole source of the EEOC’s conciliation obligation is in § 706, and the statute expressly ties the conciliation requirement to charge-filing.[6] See § 706(b); Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 (2015) (“Title VII … imposes a duty on the EEOC to attempt conciliation of a discrimination charge prior to filing a lawsuit.”) (emphasis added). Thus, while statutory conciliation is a part of the § 706 charge-processing procedures, it is inapposite in cases brought without a charge.

While § 706(a) empowers the EEOC “to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title,” § 707(c) transfers to the EEOC what was previously the Attorney General’s power to bring suit against “any person or group of persons [] engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter.” This linguistic variation was mirrored in other civil rights statutes, and it was not accidental: it reflected Congress’s intent to give the government an independent cause of action to protect the rights at stake, one that was simultaneously broader in the conduct it could reach and narrower in applicable remedies. EEOC Opening Br. 26-30; EEOC Reply Br. 2-3; Gen. Tel., 446 U.S. at 333 (noting Congress’s “general intent to accord parallel or overlapping remedies against discrimination”). But in its opinion, the panel dismissed the differing language of the two subsections with minimal explanation or support. Slip op. 11-12. In so doing, the panel failed to accord the language of Title VII its plain meaning and the meaning given by Congress.

As the panel itself acknowledged, “Section 707(a) allows the EEOC to challenge ‘resistance to the full enjoyment of any of the rights secured by [Title VII].… Therefore, suits under Section 707(a) must challenge practices that threaten the employee’s right to be free from workplace discrimination and retaliation for opposing discriminatory employment practices—the only rights secured by Title VII.’” Slip op. 11-12. This is exactly the nature of the present suit, which challenges a practice—CVS’s use of the SA—that threatens its (former) employees’ rights to be free from retaliation for filing a charge or otherwise cooperating with the EEOC, which are “secured by” Title VII, §§ 704(a), 706(b), (e). See EEOC Opening Br. 39-41.

In the next sentence, however, the panel made an abrupt about-face, declaring that § 707(a) “simply allows the EEOC to pursue multiple violations of Title VII (i.e., unlawful employment practices involving discrimination or retaliation defined in Sections 703 and 704) in one consolidated proceeding.” Slip op. 12. But the cases it cites in support do not stand for that proposition, and its analysis misconstrues the EEOC’s point. As the Commission argued to the panel, the term “pattern or practice” in Title VII does refer to a method of proof applicable to both § 706 and § 707 cases, but it also—by the plain language of the statute—describes a type of legal claim available only under § 707. See EEOC Reply Br. 7-11; Teamsters, 431 U.S. at 360 (describing proof framework in a “pattern-or-practice suit” under Section 707) (emphasis added).

As explained in the EEOC’s reply brief, the cases cited by the panel (which CVS had also cited) do not address this question at all, much less support the panel’s conclusion. Council 31, AFSCME, AFL-CIO v. Ward, 978 F.2d 373 (7th Cir. 1992), was not a § 707 suit, and the passage cited by the CVS panel was dicta in which the Court was explaining how the district court had erred in confusing the respective methods of proof for disparate treatment and disparate impact cases. Id. at 378. Parisi v. Goldman, Sachs & Co., 710 F.3d 483 (2d Cir. 2013), was also a private § 706 action where the court did not purport to address § 707 actions. See id. at 487-88 (finding arbitration agreement did not preclude private party from vindicating right to bring § 706 “pattern or practice” claim). And the panel repeated the same misstatement of Serrano that CVS had made in its brief—omitting the words “discrimination claims” from the sentence—which made it clear that the Serrano court was specifically discussing discrimination claims under § 707, not the entire universe of § 707 actions. See EEOC Reply Br. 10; Serrano, 699 F.3d at 894 (“The Court in Teamsters then analogized the facts surrounding discrimination claims brought by the EEOC under § 707, which are limited to allegations of a pattern or practice of discrimination, to the facts in Franks v. Bowman Transportation Co., … a class-action lawsuit.”) (emphases added).

The panel also faulted the EEOC for “cit[ing] to no case law” in support of its reading of § 707. Slip op. 11. While the EEOC acknowledged in its briefs and at oral argument that no federal appellate court has ruled in full on the exact legal theory advanced here, it is untrue that the EEOC cited no case law in support of its theory. In addition to the EEOC’s discussion of Teamsters and other cases in its briefs, one district court has ruled in favor of the EEOC on this point, and the EEOC sent that decision to the Court via Rule 28(j) letter the day after it was decided, on September 2, 2015. See Doherty, 2015 WL 5118067, at *5:

Defendant contends that section 707(a) cases are limited to unlawful employment practices (i.e., discrimination and retaliation) despite the clear language in section 707(a) which prohibits resistance to the full enjoyment of any rights secured by Title VII. Significantly, Congress chose not to use the term “unlawful employment practices” with respect to section 707(a) which is in stark contrast to the use of the term “unlawful employment practices” in section 706. See 42 U.S.C. § 2000e-5. The Court can only conclude that because Congress chose to use different language in the two sections, it manifested different intent; namely, that a resistance claim is not limited to cases involving an unlawful employment practice. Instead, a resistance claim may be brought to stop a pattern and practice of resistance to the full enjoyment to Title VII rights.

In any case, as the EEOC stated in its reply brief (p.2), the fact that a legal argument may be relatively novel should have no bearing on its correctness. Arguments should stand or fall based on their merit, not their vintage. See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (recognizing that sexual harassment theory originated in EEOC Guidelines promulgated in 1980, sixteen years after 1964 Civil Rights Act); Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (adopting sex-stereotyping theory of intentional discrimination twenty-three years after 1964 Act); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (recognizing same-sex harassment as valid theory of sex discrimination thirty-four years after 1964 Act).

As the Supreme Court has observed, “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Burlington N., 548 U.S. at 67. See also, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (emphasizing importance of “[m]aintaining unfettered access to statutory remedial mechanisms”); EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 431 (7th Cir. 1992) (observing that the “work of the EEOC [] depends upon employee cooperation”); EEOC v. Astra USA, 94 F.3d 738, 744 (1st Cir. 1996) (“[A]ny agreement that materially interferes with communication between an employee and the [EEOC] sows the seeds of harm to the public interest.”).

In recent years, the EEOC and other commentators have taken note of the widespread practice of including unenforceable, yet chilling, anti-charge filing and anti-cooperation provisions in employment contracts. EEOC Reply Br. 14-15; Charles A. Sullivan, The Puzzling Persistence of Unenforceable Contract Terms, 70 Ohio St. L.J. 1127, 1127 (2009). These provisions strike at the lifeblood of the EEOC by giving charging parties and witnesses a strong disincentive to come forward with allegations, or cooperate by providing even simple information, about discrimination. The panel’s opinion in this case leaves the EEOC with no mechanism under either § 706 or § 707 for challenging an unenforceable waiver of the right to file a charge or cooperate with the agency, no matter how explicit the waiver or how routine the employer’s use of such provisions. See slip op. at 12-13 (citing case law holding that employment contracts expressly forbidding charge-filing or cooperation with the EEOC are not retaliatory under Title VII). It is both legally erroneous and profoundly contrary to the public interest the EEOC enforces.

CONCLUSION

The EEOC respectfully requests rehearing or rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

CERTIFICATE OF COMPLIANCE

This petition complies with the type-volume limitation of Fed. R. App. P. 35(b)(2) because it does not exceed fifteen pages, excluding the parts of the petition exempted by Fed. R. App. P. 32.

This petition complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and Seventh Cir. R. 32(b) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 12 point, with the footnotes in Palatino Linotype 11 point.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: January 28, 2016

[1] A more detailed discussion may be found at pages 3-13 of the EEOC’s opening brief.

[2] The panel also observed that, even had it accepted the EEOC’s arguments about § 707(a), “the EEOC’s claim would still fail because the Agreement makes clear that it does not obstruct the signatory’s ability to file a charge with the EEOC.” Slip op. 13 n.4.

[3] All of these authorities were cited to the panel. EEOC Opening Br. 25-26. Also cited to the panel, via Rule 28(j) letter, was the district court’s decision in EEOC v. Doherty Enters., Inc., ___ F. Supp. 3d ___, 2015 WL 5118067 (S.D. Fla. Sept. 1, 2015), which also holds that the EEOC does not require a charge to file suit under § 707. Id. at *3.

[4] In FY 2014, the EEOC received 88,778 charges of discrimination nationwide. Charge Statistics, EEOC, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Jan. 28, 2016).

[5] Indeed, the EEOC did not do so here; the original charge was investigated and dismissed, and the charging party issued a notice of right to sue, in accordance with § 706(b). EEOC Opening Br. 3 n.2.

[6] Title VII only mentions conciliation once outside of § 706: in § 705(g)(4), not relevant here.