All recommendations for intervention require a presentation memorandum (PM). In a separate cover memorandum to the PM, the legal unit should set out background information about the private lawsuit, an explanation of the case's general public importance, an assessment of the other factors supporting intervention, and a discussion of the legal unit's understanding with private counsel regarding the Commission's role in the litigation. The background information provided about the private lawsuit should include the following: 1) name, court, and civil action number; 2) date of court filing; 3) claims alleged in private lawsuit; 4) date charge(s) was filed and a description of the Commission’s investigative efforts on the charge(s); 5) furthest stage reached in the administrative process and an explanation of why the private action was filed before the Commission was in a position to file suit; 6) current status of private lawsuit; and, 7) name of private counsel.
Under both Title VII and the ADA, intervention by the Commission is contingent on the agency’s certification that the case is of "general public importance." The certification consists of a statement executed by the General Counsel, an example of which is contained in the Appendix that follows. An original certification for the General Counsel's signature should be included with all Title VII and ADA PMs. Certifications are not required for interventions in ADEA and EPA cases, but those cases should generally meet the same public importance standard.
Normally, to be considered of "general public importance," a case should directly affect a large number of aggrieved individuals, involve a discriminatory policy or practice requiring injunctive relief, or have potential for addressing significant legal issues.
The factors listed below should be considered in determining whether to recommend intervention and should be discussed in the cover memorandum to the PM. They are not exhaustive, and any other relevant factors should also be discussed. The conditions for certifying that the case is of general public importance must be met before considering the factors in this section.
Prior to recommending intervention, the legal unit must have a firm understanding with private counsel regarding the Commission's role in the litigation, including personnel and financial commitments, litigation strategy, relief sought, and the Commission's nonconfidentiality policy on settlements. Although it is not possible to guarantee the absence of disagreements later in the litigation, particularly regarding matters such as the value of the private plaintiffs' claims, the clearer the understanding between the parties prior to the Commission's decision regarding intervention the better. Where the Commission and the private plaintiffs are not in agreement on a fundamental aspect of the litigation, intervention should not be recommended, although it may be appropriate in such circumstances to recommend amicus curiae participation.
In the PM, the legal unit should confirm that the above matters were discussed with private counsel and should summarize the understanding between the parties.
As with all litigation related matters, feel free to discuss potential intervention recommendations with your Litigation Management Services liaison attorney prior to deciding whether to submit a PM.
|Title||Description and Web Address|
|Federal EEO Laws||Text of the statutes enforced by the EEOC, on the Commission’s web site. http://www.eeoc.gov/eeoc/index.cfm
IN THE UNITED STATES DISTRICT COURT FOR THE_____________ DISTRICT OF _____________ [Name of Plaintiff], ) ) ) Plaintiff, ) ) ) ) ) v. ) Civil Action No. ____________________ ) ) [Name of Defendant(s)], ) CERTIFICATION OF GENERAL ) PUBLIC IMPORTANCE PURSUANT Defendant(s). ) TO 42 U.S.C. §2000e-5(f)(1) ______________________________________) CERTIFICATION Upon review of the facts of this case, I have determined that it raises issues of general public importance regarding allegations that the defendant(s) violated [Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. or Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.] by [set out claim(s)]. DATED THIS ___________ day of ________________________ 200__. ________________________________________________ General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW. Washington, DC 20507