Hunton Employment & Labor Perspectives

On June 30, 2021, President Biden signed a joint resolution narrowly passed by Congress to repeal a Trump-era rule that would have increased the EEOC’s information-sharing requirements during the statutorily mandated conciliation process.

A proposed rule  published by the Equal Employment Opportunity Commission (“EEOC”) on October 9, 2020 (the “Proposed Rule”) offers the possibility of expanded information-sharing with respondents/employers in connection with the agency’s conciliation efforts.  The proposed expanded disclosures may enhance the value of conciliation to those parties.

When the EEOC makes a finding that there is reasonable cause to believe discrimination occurred based on a charge filed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. (“Title VII”), it must offer the employer an opportunity to resolve the dispute through the “informal methods of conference, conciliation and persuasion.”  42 U.S.C. § 2000e-5(b). The agency may not commence a civil action against an employer unless it is unable to secure satisfactory remedies through the conciliation process.  42 U.S.C. § 2000e-5(f).  According to the Proposed Rule, approximately one-third of employers who receive a reasonable cause finding decline to participate in conciliation, and only 41.2% of conciliations between fiscal years 2016 and 2019 were successful. The Proposed Rule characterizes this as a “widespread rejection” of the conciliation process.

We previously reported on the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015), wherein the Court held that a court may review the EEOC’s conciliation efforts.

On remand, the EEOC renewed its motion for partial summary judgment on Mach Mining’s failure to conciliate affirmative defense. On January 19, 2016, the U.S. District Court for the Southern District of Illinois granted the motion, finding that the Supreme Court had expressly rejected Mach Mining’s position that it is entitled to receive demand calculations and additional information during the conciliation process. EEOC v. Mach Mining, LLC, No. 11-cv-00879, 2016 BL 13454 (Jan. 19, 2016).

The Supreme Court’s decision in Mach Mining, LLC v. EEOC provides for judicial review with respect to the EEOC’s conciliation efforts in claims of unlawful discrimination against an employer. In Mach Mining, the EEOC filed suit against Mach Mining, LLC on the basis of sex discrimination, specifically, with regard to Mach Mining’s hiring practices. After the EEOC determined that reasonable cause existed as to Mach Mining’s unlawful hiring practices, the EEOC sent a letter to Mach Mining inviting the employer to participate in an informal conciliation proceeding with the plaintiff to attempt to rectify the charge. In its letter, the EEOC notified Mach Mining that an EEOC representative would be contacting the respondent in order to begin the informal conciliation process regarding the charge. Roughly a year later, the EEOC sent a second letter to Mach Mining, stating it had determined that conciliation efforts had been unsuccessful.  The EEOC then filed suit in federal court.

On June 30, 2014, the United States Supreme Court granted Mach Mining LLC’s petition for writ of certiorari, agreeing to take up the question of whether and to what extent courts may enforce the Equal Employment Opportunity Commission’s (“EEOC”) duty to conciliate a case prior to bringing a lawsuit.

In a budget report released by the House Appropriations Committee on May 8, 2014, lawmakers expressed their concern with “the EEOC’s pursuit of litigation absent good faith conciliation efforts.”   The Committee’s report, which sets out the Committee’s recommended funding proposals for various federal departments and agencies, directs the EEOC “to engage in [good faith conciliation] efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith.”

In an order issued on February 9, 2010, a United States District Judge in Iowa sent a stark reminder to the EEOC that its statutory obligations to investigate and conciliate Title VII claims are not to be ignored.  More than three years after the EEOC filed its complaint alleging systemic sex harassment, the court, in its February 9 order, awarded Defendant CRST Van Expedited, Inc. ("CRST") $4.5 million in attorneys' fees and $460,000.00 in expenses as a prevailing party, following a finding that the EEOC abandoned its statutory obligations under Title VII.