58 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP As described above, a longer conciliation process is likely to benefit employers, because it generally reflects that both sides are trying to reach an agreement. Employers are more likely to spend longer in conciliation when dealing with the EEOC’s District Offices in Los Angeles, St. Louis, Charlotte, and Washington DC. Conciliation moves faster in the EEOC’s District Offices in Memphis, Birmingham, Philadelphia, and Miami. Time from the Failure of Conciliation to Filing a Complaint. 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. Only about 7% of complaints are filed within the first month, and the median time from the notice of conciliation failure to filing of a complaint is nearly four times that: 116 days. The quickest to file are the EEOC District Offices in Birmingham, New York, St. Louis, and Dallas. The EEOC moves most slowly in its District Offices in Los Angeles, San Francisco, Houston, and Indianapolis. Time from Determination to Litigation. 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 can expect to have more than a month before the complaint is filed, and that short timeline is uncommon. The median time from determination to complaint is 238 days. Charges move most quickly to court in the EEOC’s District Offices in Birmingham, Miami, New York and Dallas. The EEOC moves most slowly in its District Offices in Los Angeles, San Francisco, Houston, and Charlotte. B. Consent Decrees 1 General Description of a Consent Decree If conciliation fails and the EEOC chooses to file a federal court complaint, the only way a matter can be mutually resolved is a Consent Decree. A Consent Decree is a legally binding agreement, negotiated between the EEOC and the employer defendant, and ordered by the presiding Court. The proposed Decree and the Order entering the Decree are filed in open court and are a matter of public record. Critically, a Consent Decree cannot be confidential. The public nature of the settlement of an EEOC-initiated case is one of the biggest differences between an agency action and private litigation, and can be a source of surprise and frustration for employer defendants, where confidentiality is typically an essential term of any settlement. Adding to the concern is the EEOC’s standard procedure of issuing a press release at the conclusion of a lawsuit. With rare exceptions, soon after a Consent Decree is entered, the EEOC issues a press release on its website at EEOC.gov. The press release is ordinarily composed of 1) a recitation of the allegations in the complaint, 2) a summary of the terms of the Decree (both monetary and nonmonetary), 3) one or more quotes by the District leadership/attorneys emphasizing the importance of complying with civil rights statutes, and 4) a discussion of how individuals can contact the EEOC if they feel they are victims of discrimination or retaliation. The EEOC takes the uniform position that employers cannot be part of the press release process, and will flatly reject demands to preview and/or edit the press release. Naturally, an employer may issue its own counter-press release, but that carries with it certain risks of compounding the exposure of the Decree. EEOC press releases and media issues are described in Part VII, below. Most Time for Conciliation: • Los Angeles (183 days) • St. Louis (155 days) • Charlotte (149 days) • Washington DC (145 days) According to our analysis of complaints filed in EEOC District Offices in FY2023: Least Time for Conciliation: • Memphis (38 days) • Birmingham (40 days) • Philadelphia (58 days) • Miami (58 days) 99 Average days spent in conciliation
RkJQdWJsaXNoZXIy OTkwMTQ4