©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 63 C EEOC Settlement Agreements Most practitioners and employers are at least generally aware of case resolutions through conciliation agreements and Consent Decrees, but some EEOC investigations can also be resolved through a Settlement Agreement. Settlement Agreements were quite uncommon for years, but have been gaining popularity in EEOC Districts around the country. A Settlement Agreement is an instrument used to resolve a Charge before a Cause Determination is issued. Thus, the negotiations leading up to a Settlement Agreement are not formally “conciliation” and—importantly—are not automatically confidential. Settlement Agreements are typically used by the EEOC to detach from an investigation before it is required to expend additional resources in further fact gathering or conciliation discussions. Settlement Agreements are typically short, with only a handful of provisions, and address targeted non-monetary relief important to the Commission. A feature of a Settlement Agreement is almost always an agreement that the EEOC will not pursue the claims raised by the Charging Party in federal court. Thus, a Settlement Agreement is often proposed in conjunction with the issuance of a right to sue letter to the Charging Party; the Charging Party can still move forward with their claims in federal court. The attraction for an employer is that it can foreclose any possibility of the EEOC pursuing a matter on a Charging Party’s behalf, and focus instead on a more traditional federal court action with the Charging Party as a private litigant. Settlement Agreements can be a valuable tool to take the specter of EEOC-initiated litigation off the table. The terms are often far more modest than a conciliation agreement or Consent Decree, and the agency is often significantly more flexible in negotiations. As a practice pointer, employers are reminded that these Agreements are not confidential, and a confidentiality provision must be affirmatively proposed (but is routinely accepted). D Trial Judgment Although EEOC trial victories are widely publicized by the agency, they are, in reality, quite rare. This, not necessarily because of the merits of any given action, but because the EEOC tries very few cases to verdict. As with the broader universe of employment law actions, the uncertainty of trial often drives the parties to pre-trial resolution. Indeed, according to Lex Machina’s 2023 Employment Litigation Report, only 1.3% of all employment cases are actually tried to verdict. Monetary relief awarded by juries vary widely, depending on the number of claimants, the nature of the action, and the type of position at issue. Some of these trial verdicts are highlighted in Part III. The monetary relief in an EEOC-initiated action is no different than what a private litigant could be awarded in individual action, with the important exception that the EEOC cannot be awarded attorneys’ fees as a prevailing litigant. A more important distinction is non-monetary relief. Although non-monetary/injunctive relief can theoretically be sought in private litigation, few private litigants seek relief beyond backpay, front pay and compensatory, punitive and/or liquidated damages (depending on the statute at issue). The EEOC, on the other hand, routinely seeks non-monetary relief after a trial victory. The District Court Judge, and not a jury, awards any non-monetary relief. The injunctive relief demanded by the EEOC often mirrors the elements sought in Consent Decrees (see above). A District Court considers a variety of factors when deciding what injunctive relief is proper after an EEOC trial win. To determine whether a post-trial award warrants the imposition of injunctive relief, courts primarily consider “whether the facts indicate a danger of future violations” of unlawful employment practices. E.E.O.C. v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1250 (10th Cir. 1999) If an employer intentionally engages in a practice whereby a “danger of future violations” exists, a court may find it necessary to grant injunctive relief. Id. “The likelihood of future violations is inferred from the totality of the circumstances, including the commission of past illegal conduct.” Barrington v. United Air Lines, Inc., No. 15-CV-00590-CMAMLC, 2018 WL 2322070, at *2 (D. Colo. May 22, 2018). Moreover, the danger of recurrent violations must
RkJQdWJsaXNoZXIy OTkwMTQ4