AUTHOR: Steven D. Leach EMAIL: [email protected] 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.
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
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.