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In a post Mach Mining opinion, a Federal District Court in Ohio ordered the parties to engage in good faith conciliation. The Equal Employment Opportunity Commission (EEOC) was warned that if it did not participate, the court would impose any and all consequences available including, but not limited to, contempt and dismissal. The court ordered the parties back to conciliation after finding that the EEOC had failed to engage in good faith conciliation efforts. The court rejected the agency’s position that because it had filed a complaint, the EEOC would simply not reach a private resolution via conciliation. EEOC v. Ohio Health Corp. DBA Riverside Methodist Hospitals.

The court analyzed the EEOC’s performance under the standards set forth in April’s Supreme Court Decision in Mach Mining.  The EEOC was required to inform the employer about the specific allegations, including both what the employer had done and which employees had suffered as a result. Additionally, the EEOC must try to engage the employer in some form of discussion and provide the employer an opportunity to remedy the alleged discriminatory practice.

The EEOC claimed that it issued a reasonable cause determination which invited the employer to collaborate on reaching a just resolution and announced conciliation had now begun. The agency subsequently sent the employer a conciliation proposal, which the employer then rejected. The EEOC concluded that further efforts would not be successful after telephone conferences about the employer’s counter-proposal and the EEOC’s final offer. The employer argued that the EEOC presented a take-it or leave-it deal providing no further information, demanded a counter-offer, and then declared conciliation efforts had failed despite the employer being ready and willing to negotiate.

The court found that the parties’ disagreement over whether a final offer had or had not been made suggested those conciliation efforts might not have been unsuccessful. In fact, the EEOC may not have even been aware of the employer’s position when the EEOC declared that position dispositive of the conciliation efforts.

Interestingly, the court considered the EEOC’s determination letter. The letter stated that the agency would present a dollar amount, including lost wages and benefits, applicable interest, fees and costs. However, nothing in the EEOC’s evidence indicated it had done so. Without disclosure of this calculation to the employer, the conciliation process could have been nothing but a sham.  Therefore the EEOC could not have given the employer an opportunity to remedy the alleged discriminatory practice because an unsupported demand letter alone cannot logically constitute an attempt to inform and engage in the conciliation process.

Accordingly, the court ordered the parties to engage in good faith conciliation efforts, disregarding the employer’s suggestion that the court itself lead conciliation talks. The court remained troubled by the stance of the EEOC on reaching a private resolution via conciliation. The agency stressed it would not work because only a public resolution would be possible.  The court found this position directly contrary to Mach Mining.

The take away from this district court opinion is to always respond to EEOC demands in writing during the conciliation process. This includes language requesting that any settlement demand be itemized for the employer to assess and noting that while the employer is rejecting the demand it remains ready, willing, and able to conciliate through its counter-offer.