The U.S. Equal Employment Opportunity Commission

EEOC 915.013
  1. SUBJECT: Policy Statement: Employer standing to bring a charge of discrimination against a labor organization.
  2. PURPOSE: This policy statement reflects the Commission’s position on the issue of whether an employer has standing to file a charge of discrimination against a labor organization.
  3. EFFECTIVE DATE: September 4, 1987
  4. EXPIRATION DATE: March 4, 1988
  5. ORIGINATOR: Office of Legal Counsel.
  6. INSTRUCTIONS: This notice supplements the instructions in § 630 of Volume II of the Compliance Manual, Unions. Insert the Notice after p. 630-31.

Title VII case law establishes that, generally, an employer does not have standing to file a charge of discrimination against a labor organization, since a claim may be brought only by or on behalf of a person aggrieved by the alleged unlawful employment practice.

The Supreme Court in Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978), in a case arising under the Constitution, held that to have standing plaintiffs must demonstrate: (1) they suffered an injury; and (2) defendant’s allegedly unlawful conduct caused their injuries.

The essence of the standing inquiry is whether the parties seeking to invoke the court’s jurisdiction have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 (1962). As refined by subsequent reformulation, this requirement of a ‘personal stake’ has come to be understood to require not only a ‘distinct and palpable injury,’ to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501 (1975), but also a ‘fairly traceable’ causal connection between the claimed injury and the challenged conduct. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977). See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976); Linda R. S. v. Richard D., 410 U.S. 614, 617 (1973).

Duke Power Co., 438 U.S. at 72.

Further, in a Title VII case, the Supreme Court has held that an employer cannot be the victim of discriminatory employment practices. Alexander v. Gardner - Denver Co., 415 U.S. 36, 54, 7 EPD ¶ 9148, 6800 (1974). Thus, an employer cannot bring a suit against a labor organization because it cannot show direct injury by the discriminatory employment practice, except as set out below.

In Pima County Community College District v. EEOC, 11 EPD 10,867, 7662 (D. Ariz. 1976), the Court held that Title VII does not authorize suits by employers but allows private party suits only by persons aggrieved by an unlawful employment practice. The court stated, “Nowhere in the Act is it provided, either expressly or implicitly, that an employer may bring an action pursuant to Title VII.” Also see, AFSCME v. City of New York, 599 F. Supp. 916, 37 EPD 35,311 (S.D.N.Y. 1984), which held that an employer was not an aggrieved person who could assert a claim against a union. If the union had engaged in an unlawful employment practice, the only persons aggrieved would have been the employees.

There is an exception to the lack of employer standing to file a charge against a union. An employer can file a charge with the EEOC pursuant to § 703(c)(3) in its own right(1) § 703(c)(3) expressly forbids unions to “cause an employer to discriminate.” Where this occurs, the employer is aggrieved by the discriminatory employment practice because the employer becomes subject to discrimination charges and complaints.

An employer also may file a third party charge on behalf of any person claiming to be aggrieved by the discriminatory employment practice. EEOC Procedural Regulations, 29 C.F.R. § 1601.7. The confidentiality of aggrieved persons and the private suit rights of such persons may be preserved by the filing of “on behalf of” charges under Title VII, the ADEA, Title VII/ADEA or Title VII/EPA. Compliance Manual, Volume I, § 2.1.

When it is determined that an employer does not have standing to file a charge of employment discrimination under Title VII, the charge should be referred to the Systemic Unit in the district office for a determination of whether a recommendation should be made to file a Commissioner’s charge.(2)

Although the employer may not have standing, a Commissioner has standing to file a charge of discrimination against a labor organization pursuant to § 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(b), and the EEOC Procedural Regulations, 29 C.F.R. § 1601 11.

_____________       Approved: __________________________________
Date                           Clarence Thomas


1.§ 4(c)(3) of the ADEA and § 6(d)(2) of the EPA contain similar provisions which make it unlawful for a labor organization to cause an employer to discriminate.

2.While the employer does not have standing to file ADEA or EPA charges or complaints except as noted above, the information the employer provides could be used for a directed investigation by the Commission. Compliance Manual, Volume I, § 8.2(b).

This page was last modified on August 23, 2007.

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