Donald Livingston Offers Key Takeaways from EEOC 2nd Circ. Win

For its article “EEOC's 2nd Circ. Win Won't Stop Attacks On Pre-Suit Probes,” Law360 interviewed Akin Gump labor and employment partner and former EEOC general counsel Donald Livingston on the aftermath of the 2nd Circuit decision reviving a U.S. Equal Employment Opportunity Commission gender bias suit that had been dismissed. According to the article, the defendant had originally been granted summary judgment after arguing that the EEOC had not complied with its statutory obligation to conduct an investigation before suing it, alleging nationwide gender-based pay and promotion discrimination.

Livingston said, regarding the 2nd Circuit’s decision, “[It] provides a helpful clarification about the EEOC's investigative responsibilities in the Second Circuit, and the court explains that the EEOC's investigation must be pertinent to the allegation that it includes in the lawsuit.”

He noted that the 2nd Circuit is requiring matching, to some extent, between an EEOC investigation’s scope and any lawsuit filed on the basis of that investigation, adding “Where this matching doesn't exist, the EEOC's lawsuit is vulnerable.”

Livingston added that the 2nd Circuit is setting the bar higher for the EEOC than the U.S. Supreme Court had done in its April 2015 decision in Mach Mining v. EEOC, which held that courts “have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation.”

Speaking to The Daily Record of Maryland, Livingston said, “We hope that [the decision] brings the case to a close.”