The NCSL Blog


By Lisa Soronen

Death and taxes are not the only things that are inevitable—so are employers looking bad in U.S. Supreme Court employment cases.

Supreme Court; credit: The HillBut in CRST Van Expedited v. EEOC, the agency tasked with defending employees who are victims of unlawful employment discrimination looks bad—for not following the rules.

Title VII allows prevailing employers in frivolous Title VII employment discrimination lawsuits to collect a reasonable attorney’s fee. The Equal Employment Opportunity Commission (EEOC) brings lawsuits on behalf of aggrieved employees. But before doing so it has a statutory obligation to investigate, find reasonable cause the employer violated Title VII, and conciliate the dispute.

On Monday the Supreme Court heard oral argument in CRST Van Expedited v. EEOC where it will decide whether an employer is a prevailing party where a court dismissed a Title VII case because the EEOC failed to meet its pre-lawsuit obligations.

The EEOC brought a class action hostile work environment case against CRST Van Expedited involving about 270 women. The 8th U.S. Circuit Court of Appeals dismissed most of the claims, including those of 67 women the EEOC failed to investigate, find cause or conciliate.

The district court awarded CRST more than $4.5 million in attorney’s fees and costs. The EEOC objected, saying CRST wasn’t a prevailing party with respect to these claims because in dismissing them the court made no ruling on the merits.

According to the 8th Circuit, to be a ruling on the merits, the pre-lawsuit obligations the EEOC failed to meet would have to be elements of the hostile work environment sexual harassment lawsuit as opposed to “nonjurisdicational precondition[s] to filing suit.”

The 8th Circuit concluded that EEOC’s pre-suit obligations weren’t elements of the lawsuit. Finding reasonable cause and attempting conciliation are required before the EEOC files any lawsuit, not just sexual harassment lawsuits. The 8th Circuit had never labeled these requirements as “elements” of a Title VII claim; and pre-suit obligations don’t distinguish between employers who have violated Title VII and those who have not.

Ross Runkel, SCOTUSblog, reports following oral argument that it “seems clear that there is no support on the court for the 8th Circuit’s ‘on the merits’ rule. The justices’ questions and comments suggest that they will prefer a bright-line rule—either that (1) [an employer] prevails by winning in any fashion or (2) [an employer] must gain a dismissal with prejudice [meaning the case cannot be brought again].”

State and local governments may be sued under Title VII. An amicus brief filed by the Equal Employment Advisory Council noted that the EEOC in recent years has embarked on an enforcement strategy that “places particular emphasis on class-based systemic and pattern-or-practice discrimination litigation.” EEAC argues that this policy “incentivize staff to bypass investigation and pre-suit conciliation in favor of high-profile, class-based lawsuits that are likely to end, as this one did, in dismissal.”

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.


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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.