Understanding The EEOC Conciliation Process
February 1, 2021
Understanding The EEOC Conciliation Process
On January 11th, The Equal Employment Opportunity Commission (EEOC) published an update to its policy which will govern the implementation of procedural rules for its conciliation process.
Under Section 706 of Title VII of the Civil Rights Act of 1964, the EEOC is statutorily required to encourage participation in the conciliation process in any case where they find evidence or reasonable cause to believe that a violation of its regulations has occurred. In fact, the EEOC is prohibited from engaging in litigation before attempting to resolve the violation using the conciliation process.
What is EEOC Conciliation?
EEOC Conciliation occurs after an EEOC investigator has reviewed evidence or allegations presented by a complainant. If during the review they find “reasonable cause” to believe an employer has engaged in illegal discrimination or harassment, the next step is typically to offer the employer conciliation. This is a voluntary process, and, if it is not pursued, the next step is usually litigation.
During the conciliation process, the EEOC will explain, sometimes vaguely, why it came to the conclusion that the employer committed a violation and attempt to negotiate terms to remedy the situation.
Under standard conciliation, the employer has full autonomy in deciding whether or not to accept or reject the EEOC’s settlement offer.
However, a successful conciliation is one where the employer is: 1) amenable to modifying its practices in order to be compliant with the law, and 2) willing to rectify any harm caused by their violation.
If conciliation is unsuccessful, the EEOC may either initiate a lawsuit on behalf of the complainant or provide the complainant with a “right to sue” letter, which allows them to file a formal lawsuit.
EEO investigations can utilize various fact-finding methods such as interviews, conferences, and requests for additional information through interrogatories or affidavits. The investigation process is also meant to be non-adversarial, meaning that the investigator is obligated to collect any and all relevant evidence regardless of their position on the initial allegations.
Investigations are required to be completed within 180 days of the initial complaint filing. However, if the complaint has been amended or consolidated with another complaint, the EEOC may take up to 360 days after the filing of the initial complaint to complete their review. An investigation is rarely if ever completed within the specified time frames due to a variety of reasons.
At the conclusion of their investigation, the EEOC will make a determination on the merits of the claims. If the EEOC concludes that a violation of the law cannot be reasonably determined based on available evidence, the complainant will be given a letter, with a copy going to the employer, known as a “Dismissal and Notice of Rights.” This letter will inform the complainant of their right to file an independent lawsuit within 90 days, and that the EEOC will be taking no additional action on the case.
If the EEOC finds a reasonable likelihood that a violation has occurred, they will send both parties a “Letter of Determination.” This letter encourages the parties to settle the dispute through informal conciliation.
Advantages of Conciliation
– Free, voluntary and enforceable.
– Efficiency. The average processing time for conciliation is 84 days, much shorter and less expensive than a trial.
– Conducted by a neutral 3rd party, conciliation is confidential and not indicative of guilt. Information learned during conciliation cannot be used outside of the process.
– Conciliation is more likely to help the parties find ways to continue an ongoing relationship and often results in a higher rate of mutual satisfaction.
Though there are many advantages, frustration with conciliation can lie in the implementation of the EEOC’s process. Due to the confidential nature of investigations, employers are often required to evaluate significant EEOC conciliation settlement demands without the benefit of knowing the full scope and detail of the evidence against them.
Additionally, there is no requirement that the employer is provided the opportunity to converse directly with or question the complainant. As such, the EEOC conciliation process often forces the employer to negotiate from a position of ignorance.
This differs from standard litigation procedures where disclosure of evidence is an obligation and discovery allows both sides to have a similar understanding of the relevant facts, making evaluation of liability and exposure much easier.
Due to evidentiary shortcomings in the process, employers must do what they can to self-investigate and develop an independent understanding of the facts that are material to an EEOC complaint against them.
Settlement and Aftermath
Settlement terms can vary vastly depending on the facts of the cases and though financial compensation is often included in a settlement agreement, employers should keep in mind that in almost half of cases that engage in conciliation, the settlement involves a non-monetary demand. For example, policy changes or periodic reporting to the EEOC.
If a settlement agreement is reached at conciliation, in order to establish enforceability, the terms of the agreement must be in writing and signed by the parties.
If the parties do not reach an agreement, the allegation is treated just like any other charge of discrimination filed with the EEOC and a lawsuit may be filed.
When deciding whether to file a lawsuit, the EEOC considers the seriousness of the violation, legal issues present in the case, the impact the lawsuit may have on efforts to reduce workplace discrimination, and the resources required to effectively litigate the case.
Note: the EEOC files a lawsuit in less than 8% of cases where it believes discrimination occurred and conciliation was unsuccessful.
If, in the end, an employer truly does not agree with the basis for the EEOC’s initial violation determination, they must collect all evidence known to them and work with an attorney to assess their exposure prior to conciliation. This will put the employer in the best position to deny the claims outright and/or negotiate appropriate settlement terms. An attorney can also help counsel employers on any applicable defenses or mitigating circumstances.
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