EEOC Chair Propose Rule to Prioritize Conciliation over Litigation

On August 18, 2020, the EEOC held a public meeting to discuss the proposed rule change submitted by Chairwoman Janet Dhillon. The proposed change would seem to undo the effects of the Supreme Court's ruling in Mach Mining, LLC v. EEOC. In essence, this rule proposes to curtail the EEOC's ability to litigate against repentant employers by requiring additional conciliatory steps.

MACH MINING, L.L.C. V. EEOC

The issue decided in Mach Mining dealt with the extent to which a Court can review the EEOC's conciliation efforts prior to bringing a lawsuit against an employer. Title VII of the Civil Rights Act of 1964, as amended, requires that in pursuing its goal to end employment discrimination, the EEOC is required to seek resolutions by way of "conciliation", i.e. agreement or settlement with the employer, before it may initiate litigation.

Prior to Mach Mining, a common tactic used by employers during litigation was to challenge the sufficiency of the EEOC's efforts at conciliation. That is, employers asked the Courts to review whether the EEOC had done enough to settle with the employer before giving up and filing suit.

Throughout the 2000s employers – and the lawyers who represent them –...mounted a coordinated strategy of defending against discrimination claims in court by challenging the sufficiency the agency's presuit procedures, including its efforts at conciliation. In essence, employers sought to shift attention away from their own alleged discriminatory conduct and, instead, to whether the EEOC had done enough to resolve the case informally before filing suit. - David Lopez

HOLDING IN MACH MINING

The Court held that the EEOC's presuit attempts at conciliation can be reviewed by a Court. However, the scope of that review is to be narrow and limited to determining whether the EEOC had discussed the allegations with the employer and provided the employer with an opportunity to rectify the discriminatory offense.

A court may review whether the Equal Employment Opportunity Commission satisfied its statutory obligation to attempt conciliation before filing suit. But, because the EEOC has extensive discretion to determine what kind and amount of communication with an employer is appropriate in any given case, the scope of that review is narrow.

NOTICE OF PROPOSED RULE MAKING

If the EEOC's Notice of Proposed Rule Making is ultimately enacted, it would require the EEOC to turnover more information to employers during the conciliation process.

This additional information, though not yet defined, may include requiring the EEOC to spend time writing findings of fact and conclusions of law, handing over non-privileged information, identification of most witnesses, list of potential victims, and basis of any relief sought by the EEOC, among other requirements.

In general greater transparency is a good goal, especially where the government is concerned. Requiring too much though may result in the EEOC having to expend additional resources in order to simply satisfy its good faith attempt to resolve issues of discrimination with employers who have no interest in settling without a fight. Permitting the EEOC with the flexibility to determine what level of conciliation effort is warranted could save resources in the face of obstinate employers.

What this also does is give more ammunition to employers during the litigation phase. Prior to Mach Mining, employers' go-to strategy was to challenge the sufficiency of the EEOC's conciliation efforts. If the new rule is accepted and enacted, then employers will be able to throw the EEOC's own regulations back in its face rather than having to defend against the allegations of discrimination. Thus, the rule change could effectively undo Mach Mining.

The end result may be time and resources wasted, and forced settlements with employers which do little to end discrimination.

The EEOC's resources are already stretched thin, so much so that each year a vast number of Charges of Discrimination are unable to be investigated as thoroughly as Congress had hoped when it passed Title VII of the Civil Rights Act of 1964.

If you believe your case is languishing with no hope of a serious investigation into your employer's discriminatory practices, then contact Anthony Bretz today to learn what other options you have available. Don't rely on the hope that the EEOC will eventually get to your case, take action now and fight for your right to equal treatment in the workplace.