Mach Mining and the Future of the EEOC’s Duty to Conciliate in Good-Faith Prior to Civil Litigation

Last year, individuals filed over 100,000 charges of Title VII violations with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), thousands of which the EEOC has—and continues—to aggressively investigate and pursue. A problem arises, however, when the EEOC’s zealousness translates into unreasonable conciliation demands that deadlock the potential resolution of these claims prior to the filing of a lawsuit. Specifically, this aggressiveness conflicts with the EEOC’s express statutory duty to attempt to secure, in good faith, a conciliation agreement with the employer as a precondition to filing suit. See 42 U.S.C. §2000(e)-5(f)(1). Many employers have challenged the EEOC’s filing of a lawsuit on the basis that it failed to attempt a resolution in good-faith in violationof this statutory duty. Defense attorneys know that conciliation is the process that is to occur between the employer and the EEOC after an employee files an EEOC complaint and probable cause is found, but before the EEOC files suit. The process exists because “Congress established an integrated, multistep enforcement procedure culminating in the EEOC’s authority to bring a civil action in federal court.” Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977).

Originally published in DRI's For The Defense, January 2015.