The JSH Reporter Summer 2015 | Page 12

EEOCARTICLE 012 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\