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Adding to this frustration is the EEOC’s tendency to quickly
terminate conciliation discussions without significant
negotiation if an employer takes a position that is substantially
different from the EEOC’s initial conciliation demand. In the
end, employers can be faced with either paying far more
than they believe a claim is worth, and accepting intrusive
EEOC administrative demands, or with the painful prospect of
becoming entwined in an EEOC enforcement action that may
last years and result in enormous defense costs.
Employers may often conclude that they have no choice
but to reject a conciliation demand and risk proceeding to
litigation. However, this choice is contradictory to the entire
purpose of the conciliation process which, as outlined above,
is to encourage informal resolution without forcing the
parties to resort to litigation in federal courts. In fact, the U.S.
Senate recently recognized this problem, and others, in the
EEOC’s current handling of its administrative responsibilities.
On November 24, 2014, the Senate Committee on Health,
Education, Labor and Pensions issued a Minority Staff Report
entitled “EEOC – An Agency on the Wrong Track? Litigation
Failures, Misfocused Priorities and Lack of Transparency Raise
Concerns About Important Anti-Discrimination Agency.” The
report outlines several concerns regarding the EEOC’s conduct,
including a history of being rebuked by federal courts for failing
to adequately conciliate charges. The report cites examples
where federal courts have criticized the EEOC’s conciliation
efforts as violating the agency’s statutory obligation, and
dismissing EEOC enforcement actions accordingly.
For example, in EEOC v. Bloomberg, 967 F. Supp.2d 802
(S.D.N.Y. 2013), the Court entered judgment against the
EEOC because it sought to prosecute claims by individuals
without first going through the conciliation process on those
claims. The EEOC’s conciliation demand included more than
$6 million each for identified Charging Parties, and a $7.5
million fund to be divided by the EEOC among members of
a then-unidentified class of employees allegedly suffering
pregnancy discrimination. Although the employer found the
discrimination claims lacked merit, it offered each Charging
Party $65,000 but stated it could not agree to any fund for
the alleged class, “absent further information about other
potential claimants.” The EEOC closed conciliation the day
after receiving the employer’s response. The EEOC then filed
suit on behalf of the purported class of employees suffering
pregnancy discrimination. The employer eventually obtained
summary judgment on those claims, after which the EEOC
sought to continue the case on behalf of twenty-nine claimants
who were not previously identified in the charge or during the
conciliation process.
The employer brought another motion for summary judgment
asserting the claims by the newly identified individuals failed
because the EEOC did not engage in conciliation regarding
those individuals’ claims. The Court’s opinion granting the
employer’s motion is particularly damning of the EEOC’s
conduct. It found, “the EEOC spurned any efforts to conciliate
individual claims beyond those of the Claimant Parties, let
alone offer [the employer] an opportunity to tailor any classwide conciliatory efforts to the breadth of legitimate claims
it might face.” Bloomberg, 967 F. Supp.2d at 813 (emphasis in
original). The Court further concluded:
The EEOC’s pre-litigation conduct also failed to
meet the req Z\