Tag Archives: “Sue First

The EEOC claims that it can sue an employer and then use discovery to identify, investigate, and seek relief for individuals that it never heard of before it filed the lawsuit, which has been commonly referred to as the EEOC’s sue first, ask questions later litigation strategy. Accordingly, an employer may find itself defending a class action against the EEOC when it was under the impression that the alleged claims were limited to a few identified individuals. This strategy has been controversial and, to the delight of employers, has been rejected by several courts, most recently by the Eighth Circuit Court or Appeals in EEOC v. CRST Van Expedited Inc., holding that such a strategy does not satisfy the agency’s mandatory pre-suit requirements. Before filing suit, the EEOC must receive a charge alleging unlawful discrimination or retaliation, it must conduct an investigation, issue a reasonable cause determination, and then engage in conciliation with the employer (informal settlement discussions). In sum, the EEOC cannot comply with its pre-suit requirements if it seeks relief for individuals it only learned of during litigation because the agency could not have investigated their claims, issued a determination, and attempted to conciliate their claims.Continue reading this entry