56 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP PART VI: EEOC Case Resolution All EEOC matters eventually come to an end. How a matter ends will dramatically impact an employer’s future interaction with the EEOC. As with most civil litigation, most matters are settled, but as we describe below, there is significant meaning to when resolution is achieved. A Resolution Through Conciliation Congress originally conceived that the EEOC would remedy discrimination in a non-adversarial manner by conducting neutral investigations and reaching agreements with the employer to voluntarily correct any discriminatory practices. Congress settled on a framework that “preferred” cooperation and voluntary compliance over litigation, rather than simply affording victims a cause of action for damages like other statutes provide. Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015) (citation omitted). As the Supreme Court has explained, Title VII was designed to encourage “`…`voluntary compliance’ and ending discrimination far more quickly than could litigation proceeding at its often ponderous pace.” Ford Motor Co. v. EEOC, 458 U.S. 219, 228 (1982). This notice of voluntary compliance through conciliation remains. When the EEOC issues a letter of determination, it must then invite the employer to explore the potential for a negotiated, pre-suit resolution. As the Supreme Court has described in Mach Mining, the EEOC must demonstrate that it has satisfied its statutory duty of “conference, conciliation, and persuasion” before filing suit. For employers, there are often benefits to resolving a matter through conciliation rather than proceeding to litigation. The most notable is the opportunity to avoid having the EEOC go public with its allegations. The EEOC is prohibited by law from sharing information about charges that it settles through conciliation unless an employer agrees to publicize the resolution. In contrast, the EEOC frequently publicizes its litigation matters through press releases, briefs and evidence will posted to the court’s docket, and litigation can only be resolved through Consent Decrees, which are public. Unfortunately, it is common for the EEOC to approach conciliation in a one-sided manner. Investigators in the EEOC’s District Offices frequently refuse to explain the bases for their findings, decline to consider additional argument from employers, and remain vague about the relief they are seeking in order to resolve the charge. This lack of transparency can frustrate employers, who often feel that they lack information at the conciliation stage to meaningfully evaluate risk and make decisions about settlement. There have been attempts to change this state of affairs. At the close of FY 2020, we reported that new EEOC leadership had been pushing to make substantive changes to how the EEOC approaches its litigation and enforcement programs.93 On July 7, 2020, the EEOC officially announced a new pilot program intended to improve conciliation procedures at the Commission.94 The program was built “on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years.”95 On October 8, 2020, the EEOC, in a Notice of Proposed Rulemaking, acknowledged that, historically, it had elected not to adopt detailed regulations relative to its conciliation efforts based on its belief that 93 See Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer, EEOC Update: The Commission Releases Its FY 2020 Litigation Performance Report Card, Workplace Class Action Blog (Jan. 20, 2021), https://www.workplaceclassaction.com/2021/01/eeoc-update-the-commissionreleases-its-fy-2020-litigation-performance-report-card/; see also Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer, EEOC Update: The Commission Issues New Litigation Delegation And Amicus Curiae Procedures, Workplace Class Action Blog (Jan. 14, 2021), https://www. workplaceclassaction.com/2021/01/eeoc-update-the-commission-issues-new-litigation-delegation-and-amicus-curiae-procedures/. 94 Press Release, U.S. Equal Employment Opportunity Commission, EEOC Announces Pilot Programs to Increase Voluntary Resolutions (July 7, 2020) www.eeoc.gov/newsroom/eeoc-announces-pilot-programs-increase-voluntary-resolutions. 95 Id.
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