©2025 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2025 EDITION | 72 71 | EEOC-INITIATED LITIGATION: 2025 EDITION ©2025 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 Charlotte, New York, Philadelphia, and Dallas. The EEOC moves most slowly in its District Offices in Houston, Miami, Memphis, and Phoenix. 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 196 days. Charges move most quickly to court in the EEOC’s District Offices in Indianapolis, Charlotte, Dallas, and New York. The EEOC moves most slowly in its District Offices in Houston, Los Angeles, Phoenix, and Miami. 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 (at least according to the EEOC) 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 non-monetary), 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, ©2025 Seyfarth Shaw LLP Most Time for Conciliation: • Phoenix (465 days) • Philadelphia (398 days) • Charlotte (332 days) • Chicago (280 days) According to our analysis of complaints filed in EEOC District Offices in FY 2024: Least Time for Conciliation: • New York (13 days) • Birmingham (14 days) • Charlotte (15 days) • Philadelphia (16 days) 80 Average days spent in conciliation 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. 2. Common Provisions of a Consent Decree Consent Decrees can differ significantly based on a host of factors, including the claims alleged, the size and nature of the employer, the strategic importance of the issue litigated, and the scope of alleged victims impacted by the employer’s action or policy. Decrees can also differ significantly depending the EEOC District bringing the action, and can even differ by the EEOC lawyer negotiating the settlement. There are, however, certain features common to most Decrees: • Injunctive “Follow-the-Law” Provision: A term appearing in virtually any Decree is a requirement that the employer not violate the particular statute at issue in the case for the term of the Decree. While this may seem like an innocuous provision, it technically creates a new cause of action against the employer for any alleged violation of statute during the term of the Decree. For example, if an employee feels they were a victim of discrimination during the Decree, and the EEOC believes that claim is substantiated, not only could the employee file an individual action under the particular statute, but the EEOC could also claim the employer defendant violated the Decree as well, and pursue a separate enforcement action. The impact of these provisions can be so great that certain Courts have, in very rare circumstances, refused to enter a Decree unless the provision is removed. Fla. Ass’n of Rehab. Facilities v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1223 (11th Cir. 2000) (citing Meyer v. Brown & Root Constr. Co., 661 F.2d 369, 373 (5th Cir. 1981) (“An injunction must be framed so that those enjoined know exactly what conduct the court has prohibited and what steps they must take to conform their conduct to the law.”); see, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir. 1999) (invalidating an injunction which prohibited a municipality from discriminating on the basis of race in its annexation decisions because it “would do no more than instruct the City to ‘obey the law’…”); Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 897 (5th Cir. 1978) (invalidating injunction that prohibited defendant from violating Title VII in its employment decisions). • Scope and Duration of the Decree: Consent Decrees necessarily include provisions outlining the organizational and/or geographical scope to which it applies, and how long the Decree will remain in effect. The scope can range from as small as a particular department in a single facility to a coast-tocoast scope if the alleged offending policy or practice was nationwide. The length of Decrees typically range from as short as one year to as long as five years (and, in some rare instances, even longer). The most typical Decree length demanded by the EEOC is three years. • Monetary Relief: The Decree will include the details of any monetary settlement, both for individual claimants and for class relief where applicable. The monetary relief section of a Decree can be as simple as outlining where and how checks will be sent, to pages of complicated instructions as to how a class settlement will be funded, managed, and issued to a large group of alleged victims. In some instances, employers and the EEOC engage a settlement administrator to assist in the monetary relief distribution process (at the employer’s expense). • Modification of Internal Practices and Procedures: The EEOC typically requires employers to ensure their internal processes, policies and procedures comply with the law. In an employment discrimination case, these changes generally impact recruitment, promotion, compensation, training, and other human resources policies. A diverse assortment of institutional changes may be required by the EEOC. In some cases, the EEOC will demand changes to an employer’s policies that go beyond what is necessarily required by law.
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