To conciliate or not to conciliate? The company’s defense to early EEOC suits

Courts have been somewhat mixed in their interpretation of the litigation effects of the conciliation requirement found in Title VII

Courts in recent years have been confronted with increasing numbers of lawsuits alleging that the Equal Employment Opportunity Commission (EEOC) failed to adequately conciliate, or settle, discrimination charges filed with the agency before filing suit. While courts have met these cases with varying degrees of responses, in a budget report released in early May 2014 by the House Appropriations Committee, lawmakers weighed in and expressed concern about the pursuit of litigation by the EEOC before engaging in “good faith conciliation efforts.”

By way of background, pursuant to the enforcement procedure set forth in Title VII of the Civil Rights Act of 1964, if the EEOC finds that there is reasonable cause to believe a violation of Title VII has occurred, it “shall endeavor to eliminate any … alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” Indeed, the EEOC is precluded from filing suit unless it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.” However, as some employers have experienced, the conciliation process can move fairly quickly, and the only time constraint on the EEOC’s ability to file suit is that it cannot do so within the first 30 days after receiving the original charge. Thus, employers often find themselves embroiled in litigation with the EEOC before they believe they have had a meaningful opportunity to fully explore pre-suit resolution.

Contributing Author

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Jill Vorobiev

Jill Vorobiev is a member of Dykema's Labor and Employment Group, with an emphasis on labor and employment litigation. Her practice covers a broad-base, representing corporate clients...

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