News & Events

Courts May Review the EEOC's Conciliation Efforts – Well, Sort Of

Submitted By Firm: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Contact(s): Phyllis G. Cancienne, Robert C. Divine

Author(s):

Jennifer Hall

Date Published: 5/1/2015

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Title VII is clear: if the EEOC finds discrimination, it is supposed to "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). If those conciliation efforts fail, the EEOC may then bring a federal lawsuit known as an enforcement action. Yesterday, the Supreme Court answered two questions: 1) what does the EEOC have to do to satisfy its duty to conciliate, and 2) can an employer challenge the EEOC's conciliation efforts (or lack thereof) in court? In its ruling, the United States Supreme Court spelled out the bare minimum the EEOC must do to conciliate and unanimously held that the courts have the authority to remand a case back to the EEOC for additional conciliation in limited circumstances. The case is Mach Mining, LLC v. EEOC, No. 13-1019.

How the High Court Got There

The Supreme Court held that to engage in conciliation, the EEOC "must tell the employer about the claim – essentially, what practice has harmed which person or class – and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance." The Court noted the EEOC's conciliation "attempt need not involve any specific steps or measures; rather, the Commission may use in each case whatever 'informal' means of 'conference, conciliation, and persuasion' it deem appropriate." As such, the EEOC does not have to entertain a certain number of counteroffers or set a particular duration for the conciliation process. The EEOC simply has to notify the employer of the claim and provide an opportunity to discuss a possible resolution. The EEOC makes the determination when to end conciliation efforts and commence litigation.

As such, the Supreme Court held that a court's authority to review conciliation is extremely limited: "the point of judicial review is instead to verify the EEOC's say-so – that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge." Judicial review is limited to a determination as to whether the EEOC informed the employer about the specific allegation (which the Court noted is typically satisfied in the EEOC's "for cause" determination letter) and whether the EEOC engaged the employer in "some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice."

Importantly, the Supreme Court noted that a sworn affidavit from the EEOC that it has met the above obligations will usually be sufficient. If an employer can provide credible evidence to the contrary, the court may "conduct the fact finding necessary to decide that limited dispute" and order the EEOC to go back to the proverbial drawing board to attempt to obtain the employer's "voluntary compliance."

What does this mean for employers? While the Supreme Court has recognized a limited judicial review, the EEOC still holds all the cards when it comes to conciliation after a "for cause" determination. Additionally, even after a limited judicial review, the only relief will be additional conciliation with the EEOC (instead of a case dismissal as urged by many employers). As such, it is imperative that employers avoid a "for cause" determination, and we suggest employers do the following to accomplish just that:

  1. Adopt, implement and post anti-discrimination and retaliation policies, which include multiple mechanisms for reporting;
  2. Train all supervisors on their responsibilities for abiding by, and enforcing, those policies;
  3. Train all employees on the policies and the mechanisms for reporting;
  4. Investigate and take prompt remedial action upon receiving a report of discrimination, harassment or retaliation; and
  5. Treat all charges of discrimination as if a "for cause" determination will be issued:
    1. Engage legal counsel for assistance;
    2. Investigate the charge, which can include interviewing witnesses, obtaining statements and reviewing any surveillance videos;
    3. Timely respond to the charge, and provide a thorough and accurate position statement with copies of all policies and documents the EEOC investigator needs to resolve the charge;
    4. Timely respond to telephone calls and letters from the EEOC investigator; and
    5. Consider participating in mediation before a determination is issued.

If, in the unfortunate event the EEOC issues a "for cause" determination, document the EEOC's efforts (or lack thereof) to conciliate and know that a court's review of their efforts will be extremely limited.

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Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

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Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

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Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

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Vice President, Human Resources

Nikkiso Cryo, Inc.

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Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

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Former Senior Director of Human Resources

Rich Products

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Ricoh Americas Corporation

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Roberts-Gordon LLC

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Assistant General Counsel

Sanmina-SCI

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Starwood

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