In February 2012, the EEOC approved its Strategic Plan for fiscal years 2012-2016. The Plan establishes a framework for achieving the EEOC's mission to stop and remedy unlawful employment discrimination by focusing on strategic law enforcement, education and outreach, and efficiently serving the public. The second performance measure of the plan requires the EEOC to approve a Quality Control Plan. The QCP will revise criteria to measure the quality of agency investigations and conciliations throughout the nation.
The EEOC has requested input from interested parties regarding recommendations for quality indicia of investigations or conciliations or general recommendations for improving the quality of our intake process, investigations and conciliations. The EEOC’s current interest in improving its conciliation track record likely is related to a recent string of cases challenging the sufficiency of the agency’s conciliation efforts. One such case was issued last month by a federal court in Pennsylvania.
The case began when a single employee filed a charge of unlawful discrimination based on sex and retaliation, which was later amended to allege age discrimination. The EEOC investigated the Charge, requested and received a significant amount of information from the defendant. Approximately 8 months later, the EEOC issued a Cause Finding in which it determined that the defendant had unlawfully discriminated against the Charging Party based on sex and that the defendant had engaged in a pattern and practice of discrimination based on age in 6 of its restaurants.
The EEOC advised the defendant that it would promptly seek to conciliate the dispute and sent a proposed conciliation agreement. By the time the defendant received the Determination and proposed conciliation agreement, it had only 7 days to respond.
The defendant asked for an additional 30 days to respond but the EEOC denied the request. Instead, the EEOC told the defendant that it had to provide its “best offer” within the next week. The EEOC also made its first monetary demand—approximately $6.5 million for an unspecified number of potential claimants.
The defendant made a counter-offer as to the Charging Party’s claims and an expressed willingness to engage in further negotiations. Six days later, the EEOC issued a Notice of Failure of Conciliation and, a week after that, filed suit. The parties engaged in discovery for the next three years.
The Employer’s Motions
The defendant filed a motion to dismiss and for summary judgment. In support of its motion to dismiss, the defendant argued that the EEOC’s complaint failed to allege sufficient facts as the basis for its claim. The court agreed and ordered the EEOC to file an amended complaint within 30 days.
In support of its motion for summary judgment, the employer argued that the EEOC had failed to satisfy its duty to conciliate in good faith. The court acknowledged that the EEOC had great discretion to determine the extent of efforts needed to meet this duty. Even so, the court concluded that the so-called conciliation was insufficient.
The Court’s Decision
Particularly because of the break-neck speed of the process, the court found it difficult to “discern how the EEOC’s actions here would indicate a meaningful desire to actually engage in a process of ‘persuasion,’ ‘conference’ or ‘conciliation.’” As the court explained:
By any measure, a demand for the payment of more than $6 million dollars, coupled with nine days to either say “yes” or to make a “best and final” response in these circumstances (which includes, as noted above, a demand for more than a dozen significant affirmative remedial measures) is so devoid of reasonableness as to lead this Court to the conclusion that it was not a meaningful, good faith conciliation effort.
The court went on to explain that an “exchange of pointed letters does not evidence a sincere effort to reach a meeting of minds, especially in the context of an extraordinarily short set of response deadlines which were not driven by any externally imposed deadlines.” “Conciliation by letter,” the court concluded, will “rarely constitute ‘conciliation’” but, instead, were more akin to “surface bargaining.
Although the EEOC’s efforts were so fundamentally flawed, they were not sufficient to warrant dismissal of its case. Instead, the court concluded that, to dismiss the suit, after years of discovery, would be “wholly improvident.” Instead, the better course was to require that the parties now engage in the conciliation process—a process that should have occurred sooner.
Thus, the court stayed discovery to allow the parties 45 days to engage in conciliation under the court’s supervision.