It seems that the EEOC sometimes operates just like a private sector, plaintiff's law firm, notwithstanding its charter to fairly enforce federal antidiscrimination law. A recent case before the Seventh Circuit shows EEOC litigation at its games playing best.
A male employee filed a charge of discrimination against his employer after he discovered his supervisor and a female employee were having an affair, and the supervisor was giving his paramour preferential treatment because of the relationship. After the plaintiff reported the situation to his company's management, he was fired, allegedly for disclosing the relationship.
For some reason, the EEOC decided this was a case worthy of attention, and brought a civil action against the employer on behalf of the plaintiff. The Commission alleged that the employer retaliated against the employee because the plaintiff opposed an unlawful employment practice, i.e. the favoritism given to a female coworker because of her sexual relationship with the supervisor.
Unfortunately, this is not a claim under Title VII. The district court recognized this immediately, and granted the employer's motion to dismiss the case, noting that such favoritism, and retaliation for reporting it, does not constitute a violation of the law.
The EEOC promptly turned around and filed an amended complaint, this time making its allegations much less specific, and leaving out the fact that the retaliation claim was based on a report of an affair between supervisor and subordinate. This was an obvious attempt to prevent the court from dismissing the case, notwithstanding that there was no additional evidence to support the litigation. The district court would have none of this, and noted that even though the Commission failed to list the conduct that the plaintiff believed violated Title VII, the court could and would look to the original charge of discrimination, which it found deficient, again. The district court dismissed the case again, noting that the EEOC, again, pleaded itself out of court.
The Seventh Circuit disagreed with the district court's opinion, but not with the result. The Court found that there was no basis to look back to the charge and include it as a factual support for the litigation, but at the same time determined that the EEOC's complaint was procedurally vague and did not meet the requirements of a properly pled cause of action. The Court noted that what the Commission accomplished with its amended complaint was to file a lawsuit in which "the plaintiff withholds the basis upon which she suspects her employer acted..." The court would not allow this, and dismissed the claim, this time with prejudice.
I don't know why this particular case attracted the EEOC's attention. Typically the Commission does not litigate individual employment cases except in the most egregious of circumstances; it properly focuses its efforts, and its limited resources, on systemic cases of discrimination or potential class actions. It's disappointing, however, to see a government agency engage in this type of semantic gamesmanship. Presumably the Supreme Court's recent decision in Bell Atlantic Corp. v. Twombly (which the Seventh Circuit quotes extensively in this case) will act as a further brake on this type of nonspecific litigation.