I. INTRODUCTION
The Equal Employment Opportunity Commission (EEOC), created by Congress in 1964, is an independent federal agency whose mantra is to prevent discrimination in the workplace. The EEOC enforces several federal anti-discrimination statutes which include: Title VII of the Civil Rights Act which prohibits employment discrimination based upon race, color, religion, sex and national origin and applies to employers with 15 or more employees; the Equal Pay Act of 1963 which prohibits sex based wage discrimination between men and women in the same establishment who are performing under similar working conditions and applies to employers with one more employees; the Age Discrimination in Employment Act of 1967 which prohibits employment discrimination against persons 40 years of age or older and applies to employers with 20 or more employees; Titles I and V of the Americans With Disabilities Act of 1990 which prohibits employment discrimination against qualified individuals with disabilities and applies to employers with 15 or more employees; the Civil Rights Act of 1991 which amends several section of Title VII, ADEA, and ADA; and the Rehabilitation Act of 1973, Section 501, which prohibits employment discrimination against individuals with disabilities in the federal sector and Section 505 which contains provisions governing remedies and attorney’s fees under Section 501.
The EEOC has the authority to receive and investigate charges of discrimination filed against employers who have the statutory minimum number of employees. The EEOC’s role in an investigation is to fairly and accurately evaluate the charge allegations in light of all the evidence obtained. Individuals who believe they have been discriminated against during employment begin the process by filing administrative charges. Charges must be filed within 180 days of the discriminatory act in States without their own State enforcement agency (non-deferral states) and within 300 days in States with their own enforcement agency (deferral states). Moreover, an individual, agency or organization may also bring a charge if they want to protect the identity of an aggrieved individual. Individual Commissioners may also initiate charges that the law has been violated. The charge is filed in person at an EEOC office or by mail.
EEOC charges continue to be on the rise and there is no reason to believe this will change in the future. The EEOC prioritizes charges into one of three categories for purposes of investigation and resource allocation. “Category A” charges are priority charges to which EEOC offices devote principal investigation and settlement efforts. “Category B” charges are those where there appears to be some merit but more investigation is needed before a decision is made on handling. “Category C” charges include non-jurisdictional, self defeating, or unsupported charges which are immediately closed.
II. A CHARGE OF DISCRIMINATION HAS BEEN FILED
An employer will always be notified that a charge of discrimination has been filed and will be provided with the name and contact information for the investigator assigned to the case. The EEOC notifies the employer within 10 days of receipt of the charge asking for a response. A charge does not constitute a finding that the employer engaged in discrimination. The EEOC has a responsibility to investigate and determine whether there is reasonable cause to believe discrimination occurred. In many cases, the employer may opt to resolve a charge early in the investigation process through either mediation or settlement. At the start of an investigation, the EEOC will advise the employer if the charge is eligible for mediation but the employer should also ask the investigator about settlement options if early resolution is a goal. Mediation and settlement are voluntary resolutions.
During the investigation, the employer and the charging party will be asked to provide information. The investigator will evaluate the information submitted to determine whether unlawful discrimination has taken place. The employer may be asked to submit a statement of position providing the employer an opportunity to tell their side of the story and the employer should take advantage of this opportunity including reference to any threshold issues that render the charge invalid.
The employer may also be asked to respond to a request for information (RFI). The RFI may ask the employer to submit copies of personnel polices the charging party’s personnel and employment files, the personnel and employment files of other individuals and other relevant information. The employer may also be asked to permit an on-site visit. While such visits may be destructive to the employer’s operations these visits can greatly expedite the fact finding process and may help achieve quicker resolutions. In some cases, an on-site visit may be an alternative to an RFI if requested documents are made available for viewing or photocopying. There obviously would be circumstances where an employer does not want to permit the EEOC investigator an on-site visit in which the employer should simply rely upon responding to RFIs.
An employer may also be asked to provide contact information or have employees available for witness interviews. The employer representative may be present during interviews with management personnel, but an investigator is allowed to conduct interviews of non-management level employees without the employer’s representative being present. It is a recommended practice that the employer conduct exit interviews with any non-management level employees interviewed by the EEOC investigator but must be careful to ensure that the exit interview process is conducted in such a fashion that the non-management level employee cannot assert a claim of harassment or retaliation for cooperating with the EEOC.
An employer is expected to cooperate with the EEOC investigator and present any facts that will help determine the merit of a charge. If the employer has information that shows the allegations are false or did not violate the law, then the employer needs to present that information to the investigator immediately. Additionally, the employer may help the investigator understand the most efficient way to collect information and further the investigation. It does not matter if the employer believes the investigation is unnecessary or frivolous. The employer may discuss any concerns he or she has regarding the scope of the investigation at any time as in some instances the scope of the investigation may be narrowed or modified; however, any relevant information can be ultimately subpoenaed by the EEOC. The EEOC’s subpoena powers are discussed later in this paper.
The employer’s responsibility includes notifying the investigator and setting up alternative time lines if timely cooperation with the investigator is not feasible due to extenuating circumstances. The employer should discuss what the investigator deems to be relevant documents in any timelines for retention of those documents with the investigator. The investigator is expected to conduct a proper and timely investigation. The investigator should be available to answer questions the employer has about the charge and investigation, including the rights and responsibilities of both the employer and the charging party. The investigator will allow the employer to respond to the allegations and will ultimately inform the employer of the investigation findings. The average length of an investigation is 182 days. Note however that a charging party may request a Right To Sue letter (RTS) from the EEOC allowing him/her to sue independent of EEOC action once 180 days have passed since the filing of the charge. Often, the EEOC seeks an extension of this time period from the charging party.
Once the investigator has completed the investigation, the EEOC will make a determination on the merits of the charge. If the EEOC determines that there is no reasonable cause to believe that discrimination occurred, the charging party will be issued a letter called a Dismissal and Notice of Right to Sue that tells the charging party he or she has the right to file a lawsuit in federal court within 90 days from the date of receipt of the letter. The employer will also receive a copy of this document. If the EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a letter of determination stating that there is reasonable cause to believe that discrimination occurred and inviting the parties to join the agency in seeking to resolve the charge, through an informal process known as conciliation. If conciliation fails, the EEOC has the authority to enforce violations of a statute by filing a lawsuit in the federal district court where the alleged acts occurred. If the EEOC decides not to litigate, the charging party will received a Notice of Right To Sue and may file a lawsuit in federal district court within 90 days from receipt of the RTS letter.
III. EEOC SUBPOENA POWERS
Under Title VII’s administrative scheme, the EEOC has the right to conduct an investigation into charges of discrimination. The EEOC is entitled to inspect and copy “any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation.” (42 U.S.C. 2000e-8(a)). The EEOC has the right to issue administrative subpoenas and have the subpoenas judicially enforced. EEOC v. Shell Oil Co., 466 U.S. 54 (1984).
The existence of a valid charge is a jurisdictional pre-requisite to judicial enforcement of an EEOC subpoena. Shell, 466 U.S. at 65. The EEOC’s investigative authority, is not, however, plenary; the EEOC is entitled to only access evidence relevant to the charge under investigation. Shell Oil, 466 U.S. at 64. In order for a subpoena to fall within the EEOC’s power, it need only be relevant in the sense that the subpoenaed information “might throw light upon” the issues in the charge. EEOC v. United Air Lines, 287 F.3d at 643, 653 (7th Cir. 2002). The EEOC’s burden is not particular onerous. The EEOC must only carry its burden of demonstrating that the information requested is relevant to the charge filed against the employer. The requirement of relevance, and the charge requirement itself, is designed to cabin the EEOC’s authority and prevent fishing expeditions. EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982). Confidentiality is no excuse for non-compliance since Title VII imposes criminal penalties for EEOC personnel who publicize information obtained in the course of investigating charges of employment discrimination. 42 U.S.C. §2000e-5(b), 2000e-8(e). See also EEOC v. University of New Mexico, 504 F.2d 1296, 1303 (10th Cir. 1974).
As previously noted, although the legitimate scope of the EEOC’s subpoena power includes information that “might throw light upon” the inquiry raised by a complaint, the “might” is an indication of a realistic expectation rather than an idol hope that something may be discovered. United States v. Harrington, 388 F.2d 520, 524 (1968). The United States Supreme Court has cautioned that the charge and relevancy requirements should not be interpreted so broadly as to render the statutory language a nullity. Shell Oil, 466 U.S. at 69. Absent a finding that the material sought is relevant, a court may not enforce an EEOC subpoena. Note that the EEOC’s Compliance Manual advises its investigators to be on the lookout for possible unrelated violations of the law which can be considered later as a basis for new charges. This does not render the requirement of relevancy out the window. It simply means that employers should be on the lookout for these types of efforts and should take steps to ensure that they are in compliance with anti-discrimination laws across the board. The EEOC does, on occasion, look beyond the four corners of the charge to determine whether a violation of law exists. To do so, however, the claim not explicitly stated in the charge of discrimination must be reasonably related to the claims in the charge and must have been expected to grow out of an investigation of the same. Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995).
The role of federal courts in subpoena enforcement proceedings is sharply limited. EEOC v. Tempel Steel Company, 814 F.2d 482, 485 (7th Cir. 1985). Such enforcement proceedings are designed to be summary in nature. EEOC v. United Airlines, Inc., 287 F.3d 643, 649 (7th Cir. 2002). As long as the investigation is within the Agency’s authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce the administrative subpoena. Tempel Steel Company, 814 F.2d at 485. A district court will not consider the merits of the underlying charge of discrimination during a subpoena enforcement proceeding. EEOC v. Shell Oil Co., 466 U.S. 54, 72 N.26 (1984).
The EEOC need not demonstrate probable cause before it is entitled to subpoena enforcement. EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312-13 (7th Cir. 1981). In many instances, the purpose of the EEOC investigation is to determine whether probable cause does in fact exist. General Employment Enterprises, Inc. v. EEOC, 440 F.2d 783, 784 (7th Cir. 1971). Keep in mind that the purpose of a charge is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima fascia case. Graniteville Company v. EEOC, 438 F.2 32, 38 (4th Cir. 1971).
It is well settled through case precedent and statute that the EEOC’s authority to investigate is limited to evidence that is relevant to the underlying charge of discrimination. As stated by the United States Supreme Court:
The EEOC’s investigative authority is tied to charges filed with the Commission; unlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access only to evidence “relevant to the charge under the investigation.” Shell Oil Co., 466 U.S. at 64. (Quoting 42 U.S.C. §2000e-8).
As noted, the existence of a valid charge is a jurisdictional pre-requisite to judicial enforcement of an EEOC subpoena. Shell Oil Co., 466 U.S. at 65. This analysis should not end with an examination of the charging party’s initial charge but should remain throughout the life of the charge should circumstances render the charge no longer valid. An example would be the death of the charging party which arguably limits the EEOC’s ability to pursue any public interests related to the charge, including penal relief against the employer. See Schreiber v. Sharpless, 110 U.S. 76, 80 (1884) (Under federal common law, the general rule is that “remedial” actions survive the claimant’s death while “penal” actions abate.) See also generally Transworld Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) and Smith v. 2 Galesburg Crown Finance Corp., 615 F.2d 407 (7th Cir. 1980). It is important to note that district courts may refuse to enforce an administrative subpoena where the disclosure sought “would impose an unreasonable or undo burden on the party from whom production is sought.” Dow Chemical Company v. Ellen, 672 F.2 1262, 1267 (7th Cir. 1982). A court will not enforce an administrative subpoena where compliance with the administrative subpoena would “threaten the normal operation of a respondent’s business.” EEOC v. Bay Ship Building Corp., 668 F.2d 304, 313 (7th Cir. 1981).
Courts will also refuse to enforce a subpoena if it is too indefinite. A court will refuse enforcement when the subpoena is written as a “catch all” demand. Manpower, Inc. v. EEOC, 346 F.Supp.126 (E.D. Wis. 1972) (refusing enforcement of requests for “any and all like or related records, in addition to those heretofore enumerated, retained in a different form from the documents heretofore enumerated, but reflective of the substance of such documents”); General Ins. Co. of America v. EEOC, 491 F.2d 133 (9th Cir. 1974) (holding that demand for access to evidence going back in time nearly eight years and going to forms of discrimination not charged or alleged was unduly broad.
IV. RESPONDING TO EEOC SUBPOENAS
EEOC subpoena authority is granted by Section 709(a) of Title VII of the Civil Rights Act of 1964 which grants the EEOC:
“access to…and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices…and is relevant to the charge under investigation.” 42 U.S.C. §2000e-8(a).
In 1972, Congress amended Title VII to give the EEOC the investigatory powers contained in 29 U.S.C. §161 (42 U.S.C. 2000e-9). By this amendment, Congress granted the district courts jurisdiction to enforce subpoenas “upon application” by the EEOC. 29 U.S.C. §161(2). Additionally, via 29 U.S.C. §161(1), Congress gave the EEOC the power to revoke a subpoena “if in its opinion” the requested evidence is not relevant or described with sufficient particularity, while providing no special inquiry for the courts in enforcing the subpoena.
29 U.S.C. §161 provides in pertinent part:
“Within five days after the service of a subpoena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in which such proceedings, or if in its opinion, such subpoena does not describe with sufficient particularity the evidence whose production is required.” (emphasis and italics added).
Regulations implementing the EEOC’s subpoena powers can be found at 29 C.F.R. 1601.16. To effect the purposes of Title VII, the ADA, and GINA, any member of the Commission shall have the authority to sign and issue a subpoena requiring: production of evidence including, but not limited to, books, records, correspondence or documents, in the possession or under the control of the persons subpoenaed. 29 C.F.R. 1601.16(a)(2). Any person served with a subpoena who intends not to comply shallpetition the issuing Director or petition the General Counsel, if the subpoena is issued by a Commissioner, to seek its revocation or modification. Petitions must be mailed to the Director or General Counsel, as appropriate within five days (excluding Saturdays, Sundays, and federal legal holidays) after service of the subpoena. 29 C.F.R. 1601.16(b)(1). The EEOC will claim that the employer has failed to exhaust its administrative remedies when it seeks to contest the validity of an EEOC subpoena in federal court without first timely seeking revocation or modification with a Director or General Counsel pursuant to 29 C.F.R. 1601.16(b)(1).
District courts have not been receptive to the EEOC’s exhaustion of administrative remedies argument although it is in the best interest of the employer to comply with the regulation either formally by serving the petition to revoke or modify within five days after service of the subpoena, or otherwise making the EEOC and its investigator well aware of the employer’s objections to the scope of the subpoena. For instance, two district courts in California have rejected the EEOC’s argument that the regulation is jurisdictional, and therefore mandatory. EEOC v. WinCo. 2006 U.S. Dist. Lexis 64521 (U.S.D.C. for the Eastern District of California 2006); EEOC v. Lutheran Social Services, 186 F.3d 1959, 1961 (U.S.D.C. for the District of California 1999).
As explained in Lutheran Social Services, the mandatory language of 29 C.F.R. §1601.16(b) is inconsistent with the discretionary language of its authorizing statute - 29 U.S.C. §161 - which provides that a subpoenaed party may petition the issuing Board to revoke a subpoena. Finding that the EEOC had no power to strip federal courts of authority to determine whether the subpoena the agency seeks to enforce is lawful, the Lutheran Social Services court held that compliance with 29 C.F.R. §1601.16(b) is not jurisdictional although its mandatory language creates a strong presumption that issues parties fail to present to the agency will not be heard in court. The court emphasized that no categorical bar prevents them from considering whether the facts surrounding the subpoenaed party’s failure to file a §1601.16(b)(1) petition constitute circumstances sufficiently extraordinary to defeat this presumption. Lutheran Social Services, 186 F.3d at 1964.
The Lutheran Social Services court excused the failure of the subpoenaed party to file timely objections based upon the following circumstances: (1) lack of notice of the five day deadline on the face of the subpoena or by reference; (2) lack of awareness of the deadline by the EEOC’s own investigator; and, (3) the fact that the subpoenaed party had consistently objected to the EEOC’s request for information. It should be noted that recent subpoenas issued by the EEOC fail to contain notice of the five day deadline on the face of the subpoena or by reference. The “exhaustion requirement” applies as a matter of judicial discretion as opposed to a mandatory jurisdictional doctrine. Lutheran Social Services, 186 F.3d at 1963. Simply put: where Congress specifically mandates, exhaustion is required. But where Congress has not clearly mandated exhaustion, sound judicial discretion governs. McCarthy v. Madigan,, 503 U.S. 140, 144 (1992).
On October 13, 2011, a federal district court for the Northern District of Illinois ruled that the EEOC was not entitled to subpoena medical information on hospital employees in connection with its investigation of a charge that one worker was required to undergo a fitness test that violated the Americans with Disabilities Act. EEOC v. Loyola University Medical Center, 11-CV-4456 (N.D. Il., October 13, 2011). Judge Charles P. Kocoras found that the information the EEOC was seeking, medical test results and other records of employees required by Loyola to complete a fitness for duty exam was irrelevant to the ADA charge filed by a former employee. The former employee had claimed that Loyola required her to submit to medical and psychiatrist testing that was not job related and consistent with business necessity as required by the ADA.
Judge Kocoras found that the University’s treatment of other employees would not aid the EEOC in determining whether testing of the charging party was permitted or prohibited by the Act. Of importance, Judge Kocoras observed that Loyola had failed to comply with the EEOC’s regulation, 29 C.F.R. §1601.16(b) which gave Loyola five days after service of the government’s subpoena to file a petition to revoke or modify. Loyola had waited nearly three weeks after the subpoena was served to send the EEOC a letter refusing to provide the subpoenaed information. Judge Kocoras refused to grant the EEOC’s claim that Loyola had waived its right to contest the subpoena absent any established case law on this precise issue, and due to the sensitivity of the information requested. Going to the merits of the dispute, Judge Kocoras found the EEOC’s subpoena was not focused on employees performing the same job as the charging party, or even workers who performed similar duties. The subpoena also was not limited to fitness tests ordered by the same supervisor as in the charging party’s case.
Given the range of latitude courts afford the EEOC in determining the scope of their investigations, generally employers are advised to use caution when considering making objections and/or refusing to comply with a request for information. Generally, employers should make good faith efforts to fully cooperate throughout an EEOC investigation and should only object and/or refuse to provide requested material if there is a strong legal basis for doing so. The employer’s strong legal basis for challenging an EEOC subpoena include: (1) the non-existence of a valid charge which is a jurisdictional pre-requisite to judicial enforcement of an EEOC subpoena; (2) the subpoena is too indefinite in either scope or time; and, (3) the information sought is not reasonably relevant to the charging party’s charge.
Additionally, courts refuse to enforce administrative subpoenas where the disclosure sought “would impose an unreasonable and undue burden on the party from whom production is sought.” In other words, compliance with the administrative subpoena would threaten the normal operations of a respondent’s business. The imposition of an unreasonable or undo burden on the party from whom production is sought that would threaten the normal operation of a respondent’s business often occurs where the EEOC demands production of paper documents rather than readily accessible electronic documents. The best practice is to utilize an affidavit from someone with knowledge attesting to the imposition of both the unreasonable and undue burden upon the employer as well as the threatened interruption of normal business operations in complying with the subpoena.
Additionally, the equitable defense of laches can be successfully used where the EEOC has asserted the rights of individual claimants. As a general rule, the United States is not subject to the equitable defense of laches when enforcing its rights. United States v. Summerlin, 310 U.S. 414, 416 (1940). See also Silverman v. Commode Futures Trading Commission, 549 F.2d 28, 34 (7th Cir. 1977). An exception to this rule has been created in cases brought by the EEOC asserting the rights of individual claimants. Martin v. Consultants and Administrators, Incorporated, 966 F.2 1078, 1090 (7th Cir. 1992) citing to EEOC v. Massey-Ferguson, Inc., 622 F.2d 271, 275 (7th Cir. 1980); United States v. Georgia Power Company, 474 F.2d 906, 923-24 (5th Cir. 1973); and, Occidental Life Insurance Company v. EEOC, 432 U.S. 355, 373 (1977). In those circumstances, laches requires a showing of: (1) unreasonable delay; and, (2) harm or prejudice to the defendant. Martin, 966 F.2 at 1091.
For laches to apply, a defendant must demonstrate: (1) lack of diligence by the party against whom the defense as asserted; and, (2) prejudice to the party asserting the defense. Cannon v. University of Health Sciences, 710 F.2d 351, 359 (7th Cir. 1983) quoting Costello v. United States, 365 U.S. 265, 281 (1961). Whether the EEOC exercised a lack of diligence depends on whether the delay was both unreasonable and inexcusable. Cannon, 710 F.2d at 359. The Seventh Circuit Court of Appeals has upheld district court findings of unreasonable and inexcusable delay by the EEOC where the delay from the time of filing of a charge with the EEOC to the time the complaint was filed was 4 years, 9 months. Massey-Ferguson, Inc., 621 F.2d at 276. Other courts have found the EEOC’s delay to be unreasonable and inexcusable where the delay was as short as 3 years, 7 months. EEOC v. Westinghouse Electric Corp., 450 F.Supp.792 (Eastern District Missouri 1978) affirmed in relevant part, 592 F.2d 484 (8th Cir. 1979).
While employers must demonstrate some prejudicial change in the condition or relations of the parties to prevail on the defenses laches, they need not necessarily demonstrate that they are unable to conduct or defend as a result of the delay. Cannon, 710 F.2d at 362, quoting from Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946). The fact that a company “faces the hardship of locating former employees and procuring their testimony” years after the company no longer had any reason to stay in contact with them demonstrates prejudice to the company. Smith v. Caterpillar, Inc., 338 F.3d 730, 734 (7th Cir. 2003). Additionally, a company establishes prejudice where the delay undoubtedly contributed to the unavailability of critical physical evidence whether the physical evidence was inadvertently lost or intentionally destroyed as part of routine record maintenance. Smith, 338 F.3d at 735. An employer does not have an obligation to maintain its employee’s records indefinitely after the filing of a charge with the EEOC. Jeffreys v. Chicago Transit Authority, 770 F.2d 676, 681 (7th Cir. 1985).
V. RESOLVING A CHARGE
The EEOC offers employers many opportunities to revolve charges of discrimination. Methods of resolution include mediation, settlement and conciliation.
A. MEDIATION
The EEOC has greatly expanded its mediation program. The program is free, voluntary and confidential. If mediation is successful, there is no investigation. If the charge filed against your company is eligible for mediation, you will be invited to take part in the mediation process. The EEOC takes into account the nature of the charge; the relationship of the parties; the size and complexity of the case; and, the relief sought by the charging party in determining whether the charge is eligible for mediation. If mediation is unsuccessful, the charge is referred for investigation. Advantages of mediation include: (1) the EEOC’s mediation program is free; (2) mediation is efficient as the process is initiated before an investigation begins and most mediations are completed in one session usually lasting one to five hours; (3) the average processing time for mediation is 84 days; (4) the mediation program is completely voluntary; (5) successful mediation results in the closure of the charge filed with the EEOC; (6) mediators are a neutral third party so they have no interest in the outcome of the mediation; (7) mediation is a confidential process and information learned during the mediation cannot be used during an EEOC investigation; (8) mediation is an informal process, it is not a fact finding process; (9) settlement agreements secured during mediation are not admissions by the employer of any violations of law enforced by the EEOC; (10) mediation avoids lengthy and unnecessary litigation; (11) settlement agreements secured during mediation are enforceable; (12) the overwhelming majority of employers and charging parties participating in the EEOC mediation programs are satisfied with the process and would use it again; (13) mediation can help the parties understand why the employment relationship broke down; and, (14) mediation can help the parties identify ways to repair an ongoing relationship.
B. SETTLEMENT
Charges of discrimination may be settled at any time during the investigation. EEOC investigators are experienced in working with the parties to reach satisfactory settlements. Advantages of settlement include: (1) voluntary settlement efforts can be pursued at any time during the investigation; (2) settlement is an informal process; (3) there is no admission of liability; (4) if the parties reach a voluntary agreement, the charge will be dismissed; (5) settlement agreements are enforceable; and, (6) settlement avoids lengthy and unnecessary litigation.
C. CONCILIATION
The EEOC is statutorily required to attempt to resolve findings of discrimination through informal methods of conference, conciliation, and persuasion. See 42 U.S.C. 2000e-5. After the parties have been informed by letter that the evidence gathered during the investigation establishes that there is “reasonable cause” to believe that discrimination had occurred, the parties will be invited to participate in conciliation discussions. During conciliation, the investigator will work with the employer and the charging party to develop an appropriate remedy for the discrimination. Advantages of conciliation include: (1) conciliation is a voluntary process; (2) conciliation discussions are negotiations and counter-offers may be presented; (3) conciliation offers parties a final opportunity to resolve the charge informally-after an investigation has been conducted, but before a litigation decision has been reached; and, (4) conciliation agreements remove the uncertainty, costs and animosity surrounding litigation. If conciliation is unsuccessful, the EEOC can either bring a lawsuit on behalf of the employer or release the matter to the individual to file a lawsuit independently. Employers may challenge an EEOC/employee lawsuit and enforce the EEOC to re-open the conciliation process where the employer believes the EEOC moved to quickly through the conciliation process and initiated a lawsuit without giving the employer an opportunity to respond to a settlement offer from the EEOC with a counter offer.
District court’s have a difference of opinion on what is required by the EEOC to meet its statutory duty in the conciliation process. Some circuits will stay proceedings until the conciliation process is completed and often give great deference to the EEOC in meeting its obligation. Other courts have dismissed an EEOC lawsuit, awarded attorney’s fees and costs to the employer and forced the EEOC to complete the conciliation process in good faith before bringing a lawsuit.
Federal case law provides the EEOC fulfills its duty to conciliate before initiating litigation if it: (1) outlines to the employer the reasonable cause for its belief that the employer is in violation of the law; (2) offers an opportunity for voluntary compliance; and, (3) responds in a reasonable and flexible manner to the reasonable attitude of the employer. EEOC v. Asplundh, 340 F.3d 1256, 1259 (11th Cir. 2003). Federal appellate courts have reached varying conclusions about what this means. In evaluating whether the EEOC has met its duty, the 5th and 11th circuits state the fundamental question is the reasonableness and responsiveness of the EEOC’s conduct under all circumstances. Asplundh, 340 F.3d at 1259. See also EEOC v. Klinger Electric Corp., 636 F.2d 104 (5th Cir. 1981). This is interpreted to give the court authority to look into the EEOC’s actions during its investigation and conciliation process. A different view is expressed by the 6th, 7th, 8th, and 10th circuits, holding the courts should only determine whether the EEOC made an attempt at conciliation. According to these appellate courts, the form and substance of conciliation efforts are within the discretion of the EEOC, as the agency created to administer and enforce employment discrimination laws, and consequently are beyond the scope of judicial review. Under this view, the court is not going to look too closely at the EEOC’s attempt to settle claims prior to filing a lawsuit. EEOC v. David Lerner Associates, Inc., 205 U.S.Dist. Lexus 25817 at Page 4.
VI. HOW ELSE THE EEOC CAN ASSIST
The EEOC’s outreach, education, and technical assistance efforts are vital components of its mission to eradicate employment discrimination. The outreach program is designed to encourage voluntary compliance with the anti-discrimination laws and to assist employers, employees and stake holder groups to understand and prevent discrimination. Copies of the laws enforced by the EEOC as well as EEOC regulations are available on its website. The website also offers many of the EEOC’s enforcement and policy guidance and other materials that could be helpful. Pamphlets and brochures about the EEOC and the laws it enforces can also be obtained by completing the publications request form on the website or by calling 1-800-669-3362.
The EEOC offers no-cost outreach and educational programs and make the EEOC’s staff available for presentations and participation in meetings with employees, employers, community organizations and other members of the general public. The EEOC also offers fee-based training and technical assistance programs throughout the country.
VII. CONCLUSION
Employers should consider mediation, settlement or conciliation rather than engaging in a long, drawn out and expensive administrative litigation with the EEOC where these alternative dispute resolution methods are practical. The employer should also take advantage of its opportunity to respond to the charge with any affirmative matter that defeats the charge or rebuts the allegations of the charge, rather than simply denying the charges with no further elaboration.
Given the range of latitude district courts afford the EEOC in determining the scope of their investigations, generally employers are advised to use caution when considering making objections and/or refusing to comply with a request for information. Generally, employers should make good faith efforts to fully cooperate throughout an EEOC investigation and should only object and/or refuse to provide requested material if there is a strong legal basis for doing so. An employer should always analyze the threshold issues such as jurisdictional limitations; timeliness of the charge filing; validity of the charge; and scope of the subpoena and respond accordingly within the 5 day time period set forth in the regulations. The employer should also analyze the burdensome nature of the subpoena request and establish a record concerning the same via affidavit of a person with knowledge. Finally, the employer should examine any potential laches argument and establish that record as well.
Finally, employers must train their human resources or other personnel on responding to EEOC investigations to ensure the employer’s response does not create or support a subsequent claim of retaliation for cooperating with the EEOC as well as increasing potential exposure by creating doubt with the EEOC of the employer’s credibility in responding to the investigation.
