©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 70 69 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 Seyfarth Shaw LLP belief that retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination.” 109 The notice also acknowledged that the EEOC’s conciliation efforts had not been terribly successful at resolving charges.110 In an effort to improve the effectiveness of the conciliation process, the notice included proposed amendments meant to establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.” 111 The changes proposed by the EEOC were seen by many as a welcome attempt to address this issue, the Republican-led Commission adopted the Final Rule in January 2021, just before the new Biden administration was sworn in. The new rule went into effect on February 16, 2021, but while it was lauded by employers, it did not survive long. Congress exercised its authority under the Congressional Review Act to overturn executive branch regulations within 60 legislative days of when they were issued.112 Before June 2021 ended, both 113 houses 114 of Congress passed resolutions to rescind the rule, which the White House signed the resolutions into law.115 Short of any explicit requirements for the EEOC to follow, employers must be diligent and sometimes creative about drawing the EEOC into meaningful and productive settlement discussions. For employers, a longer conciliation process generally is better, as it suggests that the EEOC is more engaged in a give and take process about how to resolve the dispute without resort to litigation. In contrast, a short conciliation suggests that one or both parties are unwilling to bend their positions to negotiate a mutually acceptable outcome. Conciliation agreements that the EEOC accepts commonly include requirements such as posting a notice of non-discrimination; reviewing and revising policies; providing training; and submitting reports to the EEOC for a period of time. Employers can negotiate the specific terms, though, such as the content of any notice, or where it is posted; which employees must complete the training; the contents and frequency of submission of any reports; or the duration of the agreement. The EEOC may also ask the employer whether they will agree to make the settlement public via a press release. Experienced counsel may be able to save an employer significant sums of money not just through the economic relief, but by understanding how to agree on points important to the EEOC while ensuring that programmatic relief does not needlessly burden the employer. Timing and Statistics in Conciliation. The EEOC does not report detailed statistics about its process and timelines for moving an investigation from determination, to conciliation, to litigation. However, following the Supreme Court’s Mach Mining decision, the EEOC began to include information in its complaints about how the process played out in each particular case. Seyfarth collects and analyzes that information annually, and as a result we are able to describe how long it takes for the EEOC to move from step to step, as well as the relative pace of the EEOC District Offices. Duration of Conciliation. If you are an employer that has responded to a charge and just received a letter of determination, how long can you expect the EEOC to engage in conciliation? According to our analysis, the median time spent in conciliation is 54 days. For most employers, the EEOC will declare that conciliation has failed in three months or less. In some instances, however, conciliation has lasted for years. 109 Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64079 (proposed Oct. 9, 2020) (to be codified at 29 C.F.R. pt. 1601 and 1626). 110 Id. Over the last several years, the EEOC’s conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful. 111 Id. 112 See Congressional Review Act, 5 U.S.C. § 801. 113 S.J. Res., 117th Cong. (2021 114 H.R.J. 33, 117th Cong. (2021). 115 Remarks on Signing Legislation Regarding Methane Pollution, Predatory Lending, and Employment Discrimination, Daily Comp. Pres. Doc. DCPD202100551 (June 30, 2021). 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. Employers often complain that 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.106 On July 7, 2020, the EEOC officially announced a new pilot program intended to improve conciliation procedures at the Commission.107 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.” 108 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 106 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/. 107 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. 108 Id.
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