Courts across the nation continue to weigh in on the Equal Employment Opportunity Commission's systemic investigation and conciliation tactics. While there is a growing split within the courts, the notion that EEOC litigation is not like monopoly - "just pass go, and collect money by virtue of suing…" - is a premise that is surfacing in these rulings.
Recent opinions from the Northern District of Illinois and Eighth Circuit (discussed here, here, here, and here) set the back drop for a split among federal courts concerning whether the Commission's “sue first, ask questions later” tactics are sufficient to satisfy the EEOC's pre-suit investigation and conciliation obligations.
The EEOC has recently hung its hat on the Northern District of Illinois ruling in EEOC v. United Road Towing, Inc., Case No. 10-CV-06259 (N.D. Ill. May 11, 2012), holding that the EEOC satisfied its pre-suit investigation requirements. The EEOC even went so far as to issue a press release about that ruling. However, less than two weeks later, the Eastern District of Washington tipped the split back in favor of employers, holding to the contrary on analogous facts.
The Ninth Circuit has yet to definitively rule on this issue, but in EEOC v. Evans Fruit Co., Inc., Case No. 10-CV-03033, 2012 U.S. Dist. LEXIS 72836 (E.D. Wash. May 24, 2012), Judge Lonny Suko relied in part on the Eight Circuit’s decision in EEOC v. CRST Van Expedited, Inc., Nos. 09-3764, 09-3765 & 10-1682 (8th Cir. May 8, 2012), and held that the EEOC must engage in meaningful pre-lawsuit investigation and good-faith conciliation of the claims the EEOC intends to litigate under § 706. While Judge Suko was reluctant to dismiss the unconciliated claims outright, on the eve of trial he did require the EEOC to engage in mediation on those claims. The ruling is already receiving significant news coverage.
Factual Background Of EEOC v. Evans Fruit Co., Inc.
In EEOC v. Evans Fruit, the EEOC brought allegations against one of the nation’s largest apple producers claiming that it tolerated a sexually hostile work environment. The Commission’s claim began with three female claimants alleging that certain co-workers made unwelcome sexual comments and advances. During the course of pre-suit investigation efforts, the EEOC identified five additional claimants.
The EEOC originally sought $1.9 million in damages for a group of allegedly injured employees. Pointing to the lack of evidence that there was a class of women who claimed sexual harassment by managers, defense counsel continued to entertain the possibility of resolving the matter in pre-suit negotiations. Id. at *16. Subsequently, the EEOC reduced its demand to $1 million. Id. at *17.
The EEOC’s demand, however, left Evans Fruit without answers to integral facts and wondering as to the identity of the allegedly injured employees and their justifications for bringing suit. After continued requests by defense counsel for additional information, the EEOC provided certain details about the alleged group of claimants, and identified a new alleged victim and purported harasser - but only by first name. Again, Evans Fruit requested more information from the Commission, such as the full name of the new alleged victim and the accused employee. A mere six days later, the EEOC brought all conciliation efforts to a halt deeming them “unsuccessful.” Id. at *18.
Apparently, the EEOC was eager to pass go, skip the mandatory good faith conciliation efforts, and file suit against Evans Fruit. After filing its complaint, the EEOC took advantage of the discovery process as a tool to find allegedly injured employees. At the close of discovery, the EEOC’s so-called “class” grew to 25 total members.
The Court’s Analysis Of The EEOC’s Investigation And Conciliation Tactics
On the heels of judicial decisions that addressed the EEOC’s pre-suit investigation and conciliation requirements, the EEOC argued that all alleged victims need not be identified before the EEOC commences a lawsuit. The EEOC, however, ignored a critical factor – the good faith requirement. Judge Suko explained that fruitless conciliation efforts are not enough. The Court reasoned that the EEOC’s abrupt declaration that conciliation efforts were “unsuccessful” without any explanation was unreasonable. Id. at *21.
Highlighting examples of good faith, Judge Suko stated the EEOC must “be more forthcoming regarding the type of damages sought” and suggested that good faith efforts to conciliate include offering “some justification of the amount of damages sought, potential size of the class, general temporal scope of the allegations, and the potential number of individuals . . . alleged to be involved in the harassment.” Id. at *22.
Judge Suko granted defendant’s motion for summary judgment because he concluded the EEOC did not engage in good faith conciliation efforts. Citing Congress’ intent in creating Title VII, the Court held that conciliation efforts are not jurisdictional requirements and ordered the parties to participate in judicially supervised mediation.
Implications Of The Ruling
The ruling in EEOC v. Evans Fruit reminds employers of the importance in continually requesting investigation findings and engaging in conciliation efforts with the EEOC despite unresponsive replies from the Commission. Defense counsel's reasonable requests in EEOC v. Evans Fruit highlighted the EEOC's failure to engage in good faith efforts and created a clear record for Judge Suko to rule on in the employer's favor.
As federal courts continue to weigh in on the EEOC’s investigation and conciliation tactics, the ruling in EEOC v. Evans Fruit sends a clear message that employers can add the good faith requirement of investigation and conciliation to their arsenal of defenses.