EEOCARTICLE 010 The frustrating eeoc conciliation process AUTHOR: Steven D. Leach EMAIL: firstname.lastname@example.org BIO: jshfirm.com/stevendleach Employers are often frustrated when dealing with the Equal Employment Opportunities Commission (EEOC) regarding employee Charges of Discrimination. Many EEOC charges are legitimate and allow current or former employees an appropriate forum in which to remedy employer discrimination. Employers are encouraged to comprehensively investigate charges early, with counsel’s assistance if appropriate, to determine if there is likely exposure on the allegations contained in the charge. If so, employers are well served by attempting to quickly resolve the matter. However, employers are often frustrated by being forced to expend significant time, effort and funds to defend against what often appear to be groundless claims asserted by employees who do not realize that employers have the right to discipline or terminate employees for legitimate nondiscriminatory reasons. Perhaps it is a sign of the times that many employees cannot accept being disciplined for inappropriate conduct, and instead can only conclude the discipline was imposed because of their gender, age, disability, or their purported membership in some other protected class. When an employer has legitimate defenses to a charge, we are generally able to work with them to prepare position statements and assist with the EEOC investigation process, with the end result of having the EEOC dismiss the charge. Many EEOC charges are eventually dismissed. If not, the EEOC will render a cause determination against the employer. The employer will then be invited to participate in conciliation in an attempt to resolve the Charging Party’s claims. With some charges, the employer has enough information from its investigation to evaluate potential exposure, and can accordingly attempt to resolve the charge. However, conciliation can become an exceptionally frustrating process when the employer sees no objective evidence to support the cause determination, and is therefore faced with either having to settle a seemingly groundless claim or accepting the risk of incurring significant costs to defend an enforcement lawsuit filed by the EEOC. This article discusses the difficulties faced by employers in that situation. The EEOC is bound by Title VII to engage in conciliation in an attempt to resolve a charge before it can bring an enforcement action against the employer. 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 2000e-5(f)(1). In other words, if a charge is not resolved at conciliation, the EEOC can proceed to litigate the question of an employer’s liability for alleged discriminatory conduct. E.g., EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534-35 (2nd Cir. 1996). Statutory conciliation requirements reveal Congress’s intent to have the EEOC attempt to informally resolve charges and bring employers into compliance with anti-discrimination laws. As one court stated, “[t]he EEOC fulfills this mandate if it (1) outlines to the employer the reasonable cause for its belief that the employer is in violation . . . , (2) offers an opportunity for voluntary compliance, and (3) responds in a reasonable and flexible manner to the reasonable attitude of the employer.” Johnson and Higgins, 91 F.3d at 1534-35. The conciliation process is therefore designed to allow the employer and the EEOC to negotiate how the employer may change its policies and practices to comply with Title VII in addition to determining the amount of damages, if any, the employer will pay to the Charging Party. The important take-away from how courts interpret the conciliation process is that when Congress enacted antidiscrimination legislation, its intent was to develop a regulatory scheme that emphasizes voluntary proceedings and informal conciliation between an employer and the EEOC, as opposed to a regulatory scheme that encourages litigation. EEOC v. Bloomberg L.P., 967 F.Supp. 2d 802, 811 (S.D.N.Y. 2013). Federal courts have specifically concluded that the conciliation process is intended to avoid over-burdening the federal judicial system -- a system that is not the preferred avenue for resolving employment discrimination disputes. Occidental Life Insurance Company v. EEOC, 432 U.S. 355, 367-68 (1977). The United States Supreme Court went so far as to describe the EEOC’s purpose as follows: [T]he EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties; it is a federal administrative agency charged with the responsibility of investigating claims of employment discrimination and settling disputes, if possible, in an informal, noncoercive fashion. Id. at 368. As so described, the intent of the conciliation process seems entirely reasonable and logical. The frustration with conciliation therefore does not lie in its purpose, but in the EEOC’s application, which often requires employers to evaluate what can be extremely significant EEOC conciliation demands without having the benefit of knowing what evidence the EEOC has to support its cause determination.