Employment Law Update

Many employers faced with a charge of discrimination have participated in the Equal Employment Opportunity Commission’s mediation process. Employers, however, may not be as familiar with a separate EEOC process known as “conciliation.” This article reviews that process and provides suggestions for employers negotiating with the Commission.

Background

An employer generally has two options after receiving an EEOC charge of discrimination. The employer can either agree to immediately mediate the case or, instead, provide a position statement detailing its version of events. Thus, mediation generally occurs well before the Commission has made any determination regarding the merits of the charge.

Conciliation, on the other hand, occurs after the employer has submitted its position statement and, most importantly, after the EEOC has reviewed the merits of the charge and issued a “for cause” determination. In short, conciliation occurs only when the EEOC has reviewed the employer’s version of events and determined there is “reasonable cause” to believe the employer has participated in discriminatory activity.

The Commission is statutorily obligated to offer conciliation before it can file suit on behalf of a charging employee. See 42 U.S.C.§ 2000e-(f)(1). In 2015, the U.S. Supreme Court held that this obligation is met if the Commission informs the employer of the claim and provides the employer an opportunity to voluntarily remedy the allegedly discriminatory practice. See Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1653 (2015). Consequently, conciliation gives the parties a final opportunity to resolve the charge before the EEOC files suit.

Although the Commission cannot file suit before offering conciliation, an employer is always permitted to decline to participate. However, the EEOC sometimes implies or threatens that it is “considering” filing suit on behalf of the charging employee if the employer declines. Because some employers would rather defend a suit brought by their charging employee – and not one brought by the Commission itself – this threat encourages the employer to conciliate. However, the EEOC rarely follows through. In Fiscal Year 2014, the Commission successfully conciliated 1,031 cases, but filed suit in less than 8 percent of those where it issued a “for cause” determination. Therefore, an employer may decide that the risk the Commission will actually file suit is minimal and decline to participate in conciliation.

The Conciliation Process

If the employer chooses to participate, the EEOC will first send it a list of the remedies the Commission will seek. These remedies could include:

  • Monetary back pay;
  • Reinstatement of the employee;
  • Posting of a notice regarding the applicable statutory requirements;
  • The employer’s written promise not to retaliate against the employee; or
  • Training for all employees regarding the applicable statutory provisions under which the charge was filed.

At the conciliation – which will include representatives of the Commission, the employer, and the charging employee – the parties will negotiate these proposed remedies. Generally, the EEOC insists that the initial conciliation be in-person; however, later negotiations may be held over the phone.

The conciliation process can be discouraging. Because the Commission has already determined that discriminatory conduct has likely occurred, it may not identify which of the underlying facts led to the “for cause” determination. And, because the Commission has already issued a “for cause” determination, conciliation typically focuses solely on potential remedies – not whether the discrimination actually occurred or whether the employer will likely be found liable should the case proceed to court. In sum, the Commission views conciliation only as a means to afford the charging employee some form of relief.

Employers who opt-in to conciliation should – if they have not already – consult with experienced labor and employment counsel. Researching published EEOC settlements involving similar fact patterns is also useful. Although, as noted, the Commission does not view conciliation as an opportunity to contest the merits of the case, a comparison of similar cases can be helpful when arguing that the EEOC’s proposed remedies are excessive. If the parties successfully resolve the charge at conciliation, the agreement will be reduced to writing. If not, the Commission will either file suit on behalf of the charging party or, more likely, issue a final determination permitting the charging party to file suit on his or her own behalf.

Takeaways

Conciliation can be beneficial because it gives the employer a relatively cost-effective method of resolving the case at an early stage. Statements and arguments made during conciliation cannot be made public by the Commission, nor can they be used as evidence in subsequent proceedings without written consent. 42 U.S.C. § 2000e-5(b). Although the charging party may publicize the results of the conciliation on his or her own, the information an employer learns during a conciliation – even if a settlement is not reached – may outweigh that risk. Furthermore, if the case is resolved, then the parties enter a binding resolution, the case is dismissed, and the proceedings are terminated at a much earlier stage in the process.

Employers should, however, proceed with caution. Agreeing to a substantial remedy at conciliation may encourage other potentially meritless claims. Thus, employers should not enter the conciliation process without first having experienced counsel review the charge and provide an in-depth analysis of the case.