A quick tip to employers facing class actions brought by the Equal Employment Opportunity Commission (EEOC)—don’t forget about the EEOC’s statutory duty to investigate the claim before filing suit.

Before the EEOC may file a lawsuit, an employee must have made a timely charge of discrimination of which the EEOC timely notified the employer and the EEOC must have investigated the charge, determined that there was reasonable cause to sue, and attempted conciliation with the employer. 42 U.S.C. § 2000e-5(b), (e).

Courts generally have rejected attempts by employers to call into question the sufficiency of the EEOC’s pre-suit investigation. See, e.g., EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984). But a district court recently authorized a Rule 30(b)(6) deposition of the EEOC to determine whether the EEOC actually investigated the charge of discrimination at all before filing a class action. See EEOC v. Grane Healthcare Co., No. 3:10-cv-250 (W.D. Pa. Mar. 15, 2013). If the EEOC has failed to satisfy its pre-suit obligations, courts have the discretion to dismiss the case—in fact, the Eleventh Circuit has upheld an award of attorneys’ fees and costs to the defendant in one such case. See EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003).

The next time you’re facing a dubious EEOC class action, remember that you can ask the EEOC whether it did its homework before filing suit. And if it didn’t, you may be able to get the lawsuit bounced before having to spend the money on a full-blown summary-judgment motion

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