Seyfarth Synopsis: An in-depth analysis by Seyfarth Shaw sheds new light on how quickly the EEOC moves matters from letter of determination, through conciliation, to litigation. For charges that result in litigation, the EEOC spends, on average, just over two months in conciliation. After declaring that conciliation has failed, the EEOC takes, on average, about three months to file suit. However, there are notable differences in speed among the EEOC’s district offices.

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Employers on the wrong side of an EEOC enforcement action know all too well that there is little rhyme or reason to the timeline from investigation to litigation. The EEOC issues Performance and Accountability Reports for each fiscal year. Those reports can yield useful insights into the EEOC’s strategic priorities, as well as the volume of charges and litigation matters it brings. However, the EEOC has never reported information that shows how long a charge typically is in the pipeline before it reaches litigation.

Based on our own in-depth analysis of EEOC complaints, we now have insight to how long it takes the EEOC to move a charge from determination to a declaration that conciliation has failed, and how long again from that point until a complaint is filed in federal court.

In addition to finally providing some insight to the timeline on charges that the EEOC takes to litigation, this analysis sets an important benchmark. On January 25, 2017, President Trump appointed Victoria Lipnic as acting chair of the EEOC. Speaking at an event sponsored by Seyfarth Shaw, Ms. Lipnic stated her intention to focus on more targeted litigation that can still have an impact on a larger scale. Monitoring the pace at which the EEOC moves charges to litigation will be one way to measure the changes in the agency’s enforcement approach.

Background And Methodology

In April 2015, the Supreme Court issued its decision in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), holding that the EEOC must demonstrate that it has satisfied its statutory duty of “conference, conciliation, and persuasion” before filing suit. (We have written extensively on the decision in prior blog posts.) In an apparent effort to meet the Supreme Court’s directive, the EEOC began later that year to routinely include additional information in its complaints, such as when it had issued determinations in connection with the underlying charges and when it had declared conciliation efforts to have failed.

We analyzed and collected this and other information from nearly 150 complaints filed around the country by the EEOC from 2015 through January 2017. From that data, we could roughly calculate how long it takes for the EEOC to move from step to step, as well as the relative pace of the EEOC district offices.

How Long Is Conciliation Likely To Last?

If you are an employer that has responded to a charge and just received a letter of determination, how long can you expect the EEOC to engage in conciliation?

According to our analysis, the median time spent in conciliation is 72 days. For most employers, the EEOC will declare that conciliation has failed in three months or less. In some instances, however, conciliation has lasted for years.

Employers are more likely to spend longer in conciliation when dealing with the EEOC’s district offices in Birmingham, Memphis, Phoenix, Houston, or Miami. Conciliation moves faster in the EEOC’s district offices in Baltimore, Little Rock, Detroit, and Washington DC.

Additional details are summarized in the infographic.

If Conciliation Fails, How Long Until A Complaint Is Filed?

The common assumption among employers is that it is a race to the courthouse once the EEOC deems conciliation failed, but our analysis suggests otherwise.

Although about 19% of complaints are filed within the first month, the median time from the notice of conciliation failure to filing of a complaint is almost three times that: 91 days.

The quickest to file are the EEOC district offices in Kansas City, Little Rock, Oklahoma City, and Los Angeles. The EEOC moves most slowly in its district offices in Phoenix, Dallas, St. Louis, Chicago, Indianapolis, Birmingham, and Memphis.

See the infographic for additional details.

A Determination Was Just Issued In An Intractable Case – How Long Until Court Proceedings Commence?

Taking both of these together, how much time can an employer expect to pass from determination to the start of litigation?

Our analysis found that employers have at least two months before the complaint is filed, and that short timeline is uncommon. The median time from determination to complaint is 196 days.

Charges move most quickly to court in the EEOC’s district offices in Kansas City, Little Rock, and Baltimore. The EEOC moves most slowly in its district offices in Phoenix, Memphis, Birmingham.

The infographic provides additional details.