Litigating with the EEOC

The EEOC's Obligation to Conciliate in Good Faith

Under Title VII, the EEOC is obligated to conciliate in good faith after it has made a determination that reasonable cause exists to believe that an employer engaged in discrimination, but before filing suit. 42 U.S.C. ' 2000(e)-5(b). The intended purpose of conciliation is to endeavor to eliminate the unlawful employment practice through voluntary compliance. The EEOC Compliance Manual emphasizes that the agency should act reasonably and flexibly during the conciliation process. There are typically two instances when the EEOC is more likely to be inflexible in its approach to conciliation: 1) where significant issues are involved that the EEOC desires to litigate; or 2) where the EEOC wants any settlement to come after litigation, when the resolution is not protected by confidentiality laws.

The nature of the EEOC conciliation process becomes an issue in litigation when an employer argues that subsequent litigation by the agency should be stayed or dismissed altogether because the EEOC failed to conciliate in good faith before it filed suit. In other words, the EEOC's good faith is called into question as part of the litigation process. Because there is no statutory or regulatory authority that explains the EEOC's precise obligation in the conciliation process, courts have interpreted conciliation as a flexible process that necessarily differs in each instance. In light of this case-by-case approach, courts vary in how carefully they scrutinize the EEOC's conciliation efforts. There appear to be two different lines of analysis followed by the federal courts in this regard. Leading cases in the Sixth and Tenth Circuits have defined a deferential approach, while the Fifth and Eleventh Circuits have proceeded with a more demanding legal standard. This distinction is addressed more fully below.

The Deferential Standard

According to leading cases in the Sixth and Tenth Circuits, district courts should not consider the details of the conciliation process, but, rather, should focus on 'whether the EEOC provided the employer an opportunity to confront all of the issues.' See EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984); EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978). Under this approach, the district court does not examine the substance of the parties' negotiations. Rather, as made clear in the leading Sixth Circuit case, EEOC v. Keco Industries, '[t]he district court should only determine whether the EEOC made an attempt at conciliation. The form and substance of those conciliations is within the discretion of the EEOC as the agency created to administer and enforce our employment discrimination laws and beyond judicial review.' Id. at 1102.

Courts adopting this deferential standard of review forgive less than reasonable conciliation attempts by the EEOC if further attempts at conciliation would have been futile. See, e.g., EEOC v. Spectrum Health Worth Home Care, No. 1:05-446, 2006 WL 519779, at *5-7 (W.D. Mich. March 2, 2006). In EEOC v. Spectrum, the court found that written exchanges between the parties were an adequate conciliation effort and rejected the employer's argument that the EEOC unreasonably refused a face-to-face meeting because such a meeting would have been in vain in light of the parties' polarized views. Id. These courts have also held that the EEOC's obligation to conciliate ends once the employer rejects its offer. See, e.g., EEOC v. Gold River Operating Corp., No. 2:04-01349, 2007 WL 983853, at *4-5 (D. Nev. Mar. 30, 2007).

For example, in EEOC v. Hometown Buffet, Inc., the court was less than complimentary of the EEOC's approach to conciliation, but nevertheless found it to have conciliated in good faith. '- F. Supp. 2d '-, 2007 WL 951299, at *4-5 (S.D. Cal. March 6, 2007). There, the EEOC requested the maximum statutory penalties for each charging party involved based upon conclusory and unidentified evidence. The court stated it was 'sympathetic to [the employer's] arguments that the EEOC could have done more to facilitate conciliation,' and that 'the EEOC's rigid and preemptive attitude ' did not serve as an effective conciliation technique.' Yet, the court concluded that it was not its role to assess the reasonableness of the EEOC's efforts; rather, its role was limited to reviewing whether the EEOC's efforts afforded the employer an opportunity to confront the issues. Noting that the employer never submitted a counteroffer to the EEOC's conciliation proposal, the court found that the EEOC 'minimally complied with its conciliation obligations.'

Simply put, courts using the deferential approach decline to scrutinize the EEOC's conciliation efforts at all, so long as there is evidence that some minimal attempt at conciliation occurred. This is challenging territory for employers taking issue with the EEOC.

The Less Deferential Standard

Other courts have adopted a less deferential approach, as developed by leading cases in the Fifth and Eleventh Circuits. Noting the strong congressional desire for voluntary compliance in lieu of EEOC litigation, these courts have held that the standard for judicial review is whether the EEOC acted reasonably during the conciliation process. See EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003) ('[t]he duty to conciliate is at the heart of Title VII.'); EEOC v. Klinger Elec. Corp., 636 F.2d 104 (5th Cir. 1981); EEOC v. Pet, Inc., 612 F.2d 1001 (5th Cir. 1980).

This standard requires the EEOC to: 1) outline to the employer the reasonable cause for its belief that the law has been violated; 2) offer an opportunity for voluntary compliance; and 3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Asplundh, 340 F.3d at 1259. Courts adopting this approach review 'reasonableness and responsiveness of the EEOC's conduct under all the circumstances.' Id. In this regard, the leading Fifth Circuit opinion instructs that '[n]othing less than a 'reasonable' effort to resolve with the employer the issues raised by the complainant will do.' Klinger, 636 F.2d at 107.

Conduct Evidencing the EEOC's Failure to Conciliate in Good Faith

Using this less deferential standard, courts have generally found the EEOC's conciliation efforts inadequate where it was not willing to: 1) meet with the employer; 2) be flexible with respect to timing; 3) negotiate at least some of the terms of the conciliation agreement; or 4) discuss the merits of the cause finding. Each issue is discussed in turn below.

1. Refusal to Meet with the Employer

Despite the fact that the EEOC's own Compliance Manual instructs its representatives to meet with employers face-to-face during the conciliation process, the EEOC sometimes denies employers this opportunity, arguing that it is not required to meet with employers to satisfy its conciliation duty. EEOC Compliance Manual ' 62.5. Though face-to-face conciliation meetings are not statutorily required, the EEOC's efforts to conciliate have been found unreasonable and inadequate where the EEOC refused to meet with the employer. See, e.g., EEOC v. UMB Bank, N.A., 432 F. Supp. 2d 948, 954-55 (W.D. Mo. 2006) (finding it unreasonable of the EEOC to refuse the employer's requests for a conciliation conference).

In defense, the EEOC often takes the position that it would be futile and unnecessary to conduct a face-to-face meeting where the employer expresses resistance to making a significant counter-offer to the EEOC's opening proposal. However, courts have found that this fact does not make the EEOC's refusal to meet with the employer any more reasonable. See EEOC v. Pacific Maritime Assoc., 188 F.R.D. 379, 380-81 (D. Or. 1999); EEOC v. First Midwest Bank, N.A., 14 F. Supp. 2d 1028 (N.D. Ill. 1998).

2. Refusal to be Flexible with Respect to Timing

The seminal case illustrating judicial intolerance of unreasonable and inflexible timing requirements imposed by the EEOC during conciliation is the Asplundh case noted above. There, the EEOC investigated the charge for three years before issuing its cause finding. Then, 'in a flurry of activity,' the EEOC issued its determination, proposed nation-wide conciliation, and provided the employer twelve business days to respond. When the employer requested a reasonable extension of time to respond, the EEOC immediately terminated conciliation and announced its intent to sue. The Eleventh Circuit affirmed the district court's dismissal of the case based on the EEOC's actions, ruling that the EEOC's conduct 'smacks more of coercion than of conciliation.' Asplundh, 340 F.3d at 1259-60.

The United States District Court for the Southern District of New York reviewed a similar case, in which the employer was given eight days to respond to the EEOC's conciliation proposal on behalf of three charging parties and other unnamed employees. EEOC v. Golden Lender Financial Group, No. 99-8591, 2000 WL 381426 (S.D.N.Y. Apr. 13, 2000). The employer made a counter-proposal for the three charging parties, but requested more information regarding the unnamed individuals. One day later, the EEOC declared conciliation a failure and subsequently filed suit. The court held that the EEOC failed to conciliate in good faith because it made no efforts to respond to the employer's counterproposal, instead simply declaring conciliation a failure.

3. Refusal to Negotiate

Guidance in the EEOC Compliance Manual suggests that the EEOC should not submit 'take it or leave it' conciliation proposals. EEOC Compliance Manual ' 64.6. Despite this guidance, the EEOC occasionally submits 'take it or leave it' offers, particularly with respect to the monetary terms. Courts evaluating the EEOC's conciliation efforts under the less deferential approach generally frown upon 'take it or leave it' conciliation proposals by the agency. In EEOC v. Pet Inc., the employer expressed its willingness to engage in conciliation attempts with respect to broader class issues, but significantly limited the scope of those discussions by informing the agency that it would not consider reinstating the charging party or pay him any back wages. 612 F.2d at 1002. Despite the employer's steadfast refusal to negotiate with respect to relief for the charging party, the court found that the EEOC's refusal to attempt to conciliate the broader issues:

[I]s not the sort of good-faith attempt at conciliation on the part of the EEOC that Title VII contemplates. To withdraw from discussions while the other party is offering to negotiate the broad issues, merely because an impasse has occurred as to the charging party, smacks more of coercion than of conciliation. Such an all-or-nothing approach on the part of a commission, one of whose most essential functions is to attempt conciliation, will not do.

The United States District Court for the Southern District of Mississippi recently found that the EEOC's submission of an all-or-nothing proposal evidenced its failure to conciliate in good faith, ultimately concluding that the agency's actions were so frivolous and unreasonable that it assessed the employer's attorneys' fees against the EEOC. EEOC v. Agro Distributors, LLC, 442 F. Supp. 2d 357 (S.D. Miss. 2006). There, the EEOC made clear to the employer that any counteroffer to its conciliation proposal had to include reinstatement, full back pay and compensatory damages. Finding that the EEOC did not attempt conciliation in good faith, the court stated:

[t]he EEOC appears to have issued an all-or-nothing proposal in this case based on faulty facts and did not 'respond in a reasonable and flexible manner' to the entreaties by [the employer] to resolve this matter. It appears that the Commission dealt in an arbitrary manner based on preconceived notions of its investigator and ignored the attempts of [the employer's] counsel to engage the Commission in settlement discussions.

After granting summary judgment in the employer's favor on the merits of the discrimination claim, the court found that the EEOC's actions were unreasonable and frivolous, and thereby assessed the employer's attorneys' fees against the EEOC. Discussing the waste of significant judicial resources on the case, the court reasoned that, had the charge been 'investigated, reasonably conciliated and reasonably considered during the course of the litigation, it would have never gotten to this point.'

4. Refusal to Discuss the Merits

The EEOC Compliance Manual suggests that employers should be given the opportunity during conciliation to question the EEOC about the merits of its cause finding and its proposed relief. EEOC Compliance Manual ' 62.2. The agency, however, consistently takes the position that it will not engage employers in discussions about the merits of a charge during the conciliation process. According to the EEOC, the exclusive focus of the conciliation process should be on negotiations, with minimal or no dialogue about the basis for or strength of the EEOC's cause finding. The EEOC often uses this position to justify its refusal to engage in any discussion about the merits of its cause finding. Contrary to this position, some courts have found it appropriate and even necessary for the agency to address the merits of a charge during conciliation. See, e.g., EEOC v. UMB Bank, N.A., 432 F. Supp. 2d at 954-55.

In EEOC v. UMB, the EEOC brought suit on behalf of a charging party who claimed the employer unlawfully failed to hire him on the basis of disability. During the EEOC's investigation, the employer maintained that the charging party contended he was unable to perform the job at issue without an accommodation that the employer believed to be unreasonable. During the conciliation process, however, the employer learned that the charging party contended he was able to perform the job at issue without that accommodation. In light of this new information, the employer requested a face-to-face conciliation meeting with the EEOC and the charging party to straighten out any confusion about whether the charging party needed accommodations to perform the job at issue. The EEOC denied the employer's requests, pressed ahead toward litigation, and filed a motion for summary judgment on the issue of whether it had conciliated in good faith.

The United States District Court for the Western District of Missouri denied the agency's motion, concluding that the EEOC unreasonably denied the employer the opportunity to assess the crucial issue of whether the charging party was actually capable of performing the job at issue. Id. at 954-55. The court reasoned that, without the opportunity to evaluate this issue, the employer 'had no foundation from which to engage in meaningful conciliation discussions or to generate a conciliation proposal.' Id. at 955. Consequently, the court found that the EEOC denied the employer an 'adequate opportunity to respond to all charges and negotiate possible settlements,' and did not respond in a 'reasonable and flexible manner to the reasonable attitudes of the employer.' Id.

Guidance for Employers

Conciliation is an important and potentially advantageous opportunity, and employers should approach the conciliation process meaningfully. The EEOC does conciliate some charges in a flexible manner, with an eye toward reasonable resolution in the pre-litigation stage. However, the EEOC may be inflexible where it views a conciliation failure as beneficial to its end goal. This occurs where the EEOC wants to pursue litigation, or wants settlement to come after conciliation fails, when the resolution can be made public through entry of a Consent Decree and issuance of a press release.

When entering conciliation with the EEOC, employers should keep in mind that courts are not likely to penalize the EEOC where both parties contribute to the breakdown of the conciliation process. As demonstrated by the cases above, courts measure the EEOC's conciliation efforts by its response to the reasonable attitudes of the employer. As such, employers should consider the following approaches when responding to an inflexible conciliation style on the part of the EEOC. These steps will enhance the potential for success in the conciliation process and create a good record should the need for it arise.

Most importantly, employers should overtly communicate their willingness to conciliate in correspondence with the EEOC to demonstrate their own good faith. Such correspondence should also memorialize any less than reasonable conduct on the part of the EEOC. If the EEOC has not provided enough information about the merits of its cause finding, do not simply request reconsideration of the cause finding. The EEOC is likely to interpret this as a signal that the employer is not interested in conciliation. Any request for reconsideration should be accompanied by a clear expression of willingness to conciliate.

If the EEOC refuses to address the merits during conciliation, draft correspondence again expressing your desire to conciliate, and explaining that you have insufficient information to engage in meaningful conciliation or generate a counterproposal. Request an explanation for the EEOC's cause finding and conciliation proposal, noting that the EEOC's Compliance Manual requires it to provide a rationale for the remedies sought during conciliation.

Encourage and request the EEOC to provide in writing a detailed basis for its damage calculation, including information about any mitigation of damages or failure to mitigate damages by the charging party. Do not be hesitant to ask questions.

Finally, follow written correspondence on these issues with a request to have an in-person conciliation conference, explaining that a face-to-face meeting will allow the parties to engage in more meaningful conciliation dialogue.

William C. Martucci, a member of this newsletter's Board of Editors, and Kristen A. Page are corporate defense lawyers in the National Employment Litigation and Policy Group at Shook, Hardy & Bacon, L.L.P. in Washington, DC, and in Kansas City, MO. They recently tried an ADA jury case with the EEOC in which the defense prevailed. Martucci may be reached at

The Equal Employment Opportunity Commission (EEOC) has a statutory obligation to conciliate in good faith with employers prior to initiating litigation. This is a well-known obligation, but it is not always carried out in a manner that is fair to employers. In recent years, employers have become increasingly frustrated with the EEOC's approach to conciliation, particularly where it seems that the EEOC is more concerned with pursuing litigation than with attempting to eliminate alleged discriminatory practices voluntarily through conciliation. As a result, more and more employers are challenging the 'good-faith' nature of the EEOC's approach to conciliation. These challenges have produced several notable decisions, with favorable results to employers in several respects.

Although the EEOC's approach to conciliation in many instances may seem less than 'in good faith,' conciliation remains a valuable last step in the pre-litigation stage with the agency. It can be a great benefit for employers to approach the conciliation process meaningfully, and it can be a real lost opportunity if employers do not fully engage in the process.

This article addresses the conciliation process generally, the EEOC's obligation to participate 'in good faith,' and the varying approaches the federal courts have taken to this issue. Additionally, this article offers practical guidance for employers navigating the 'conciliation' process.

The EEOC's Obligation to Conciliate in Good Faith

Under Title VII, the EEOC is obligated to conciliate in good faith after it has made a determination that reasonable cause exists to believe that an employer engaged in discrimination, but before filing suit. 42 U.S.C. ' 2000(e)-5(b). The intended purpose of conciliation is to endeavor to eliminate the unlawful employment practice through voluntary compliance. The EEOC Compliance Manual emphasizes that the agency should act reasonably and flexibly during the conciliation process. There are typically two instances when the EEOC is more likely to be inflexible in its approach to conciliation: 1) where significant issues are involved that the EEOC desires to litigate; or 2) where the EEOC wants any settlement to come after litigation, when the resolution is not protected by confidentiality laws.

The nature of the EEOC conciliation process becomes an issue in litigation when an employer argues that subsequent litigation by the agency should be stayed or dismissed altogether because the EEOC failed to conciliate in good faith before it filed suit. In other words, the EEOC's good faith is called into question as part of the litigation process. Because there is no statutory or regulatory authority that explains the EEOC's precise obligation in the conciliation process, courts have interpreted conciliation as a flexible process that necessarily differs in each instance. In light of this case-by-case approach, courts vary in how carefully they scrutinize the EEOC's conciliation efforts. There appear to be two different lines of analysis followed by the federal courts in this regard. Leading cases in the Sixth and Tenth Circuits have defined a deferential approach, while the Fifth and Eleventh Circuits have proceeded with a more demanding legal standard. This distinction is addressed more fully below.

The Deferential Standard

According to leading cases in the Sixth and Tenth Circuits, district courts should not consider the details of the conciliation process, but, rather, should focus on 'whether the EEOC provided the employer an opportunity to confront all of the issues.' See EEOC v. Keco Industries, Inc ., 748 F.2d 1097 (6th Cir. 1984); EEOC v. Zia Co ., 582 F.2d 527 (10th Cir. 1978). Under this approach, the district court does not examine the substance of the parties' negotiations. Rather, as made clear in the leading Sixth Circuit case, EEOC v. Keco Industries, '[t]he district court should only determine whether the EEOC made an attempt at conciliation. The form and substance of those conciliations is within the discretion of the EEOC as the agency created to administer and enforce our employment discrimination laws and beyond judicial review.' Id. at 1102.

Courts adopting this deferential standard of review forgive less than reasonable conciliation attempts by the EEOC if further attempts at conciliation would have been futile. See, e.g., EEOC v. Spectrum Health Worth Home Care, No. 1:05-446, 2006 WL 519779, at *5-7 (W.D. Mich. March 2, 2006). In EEOC v. Spectrum, the court found that written exchanges between the parties were an adequate conciliation effort and rejected the employer's argument that the EEOC unreasonably refused a face-to-face meeting because such a meeting would have been in vain in light of the parties' polarized views. Id. These courts have also held that the EEOC's obligation to conciliate ends once the employer rejects its offer. See, e.g., EEOC v. Gold River Operating Corp., No. 2:04-01349, 2007 WL 983853, at *4-5 (D. Nev. Mar. 30, 2007).

For example, in EEOC v. Hometown Buffet, Inc., the court was less than complimentary of the EEOC's approach to conciliation, but nevertheless found it to have conciliated in good faith. '- F. Supp. 2d '-, 2007 WL 951299, at *4-5 (S.D. Cal. March 6, 2007). There, the EEOC requested the maximum statutory penalties for each charging party involved based upon conclusory and unidentified evidence. The court stated it was 'sympathetic to [the employer's] arguments that the EEOC could have done more to facilitate conciliation,' and that 'the EEOC's rigid and preemptive attitude ' did not serve as an effective conciliation technique.' Yet, the court concluded that it was not its role to assess the reasonableness of the EEOC's efforts; rather, its role was limited to reviewing whether the EEOC's efforts afforded the employer an opportunity to confront the issues. Noting that the employer never submitted a counteroffer to the EEOC's conciliation proposal, the court found that the EEOC 'minimally complied with its conciliation obligations.'

Simply put, courts using the deferential approach decline to scrutinize the EEOC's conciliation efforts at all, so long as there is evidence that some minimal attempt at conciliation occurred. This is challenging territory for employers taking issue with the EEOC.

The Less Deferential Standard

Other courts have adopted a less deferential approach, as developed by leading cases in the Fifth and Eleventh Circuits. Noting the strong congressional desire for voluntary compliance in lieu of EEOC litigation, these courts have held that the standard for judicial review is whether the EEOC acted reasonably during the conciliation process. See EEOC v. Asplundh Tree Expert Co ., 340 F.3d 1256 (11th Cir. 2003) ('[t]he duty to conciliate is at the heart of Title VII.'); EEOC v. Klinger Elec. Corp ., 636 F.2d 104 (5th Cir. 1981); EEOC v. Pet, Inc ., 612 F.2d 1001 (5th Cir. 1980).

This standard requires the EEOC to: 1) outline to the employer the reasonable cause for its belief that the law has been violated; 2) offer an opportunity for voluntary compliance; and 3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Asplundh, 340 F.3d at 1259. Courts adopting this approach review 'reasonableness and responsiveness of the EEOC's conduct under all the circumstances.' Id. In this regard, the leading Fifth Circuit opinion instructs that '[n]othing less than a 'reasonable' effort to resolve with the employer the issues raised by the complainant will do.' Klinger, 636 F.2d at 107.

Conduct Evidencing the EEOC's Failure to Conciliate in Good Faith

Using this less deferential standard, courts have generally found the EEOC's conciliation efforts inadequate where it was not willing to: 1) meet with the employer; 2) be flexible with respect to timing; 3) negotiate at least some of the terms of the conciliation agreement; or 4) discuss the merits of the cause finding. Each issue is discussed in turn below.

1. Refusal to Meet with the Employer

Despite the fact that the EEOC's own Compliance Manual instructs its representatives to meet with employers face-to-face during the conciliation process, the EEOC sometimes denies employers this opportunity, arguing that it is not required to meet with employers to satisfy its conciliation duty. EEOC Compliance Manual ' 62.5. Though face-to-face conciliation meetings are not statutorily required, the EEOC's efforts to conciliate have been found unreasonable and inadequate where the EEOC refused to meet with the employer. See, e.g., EEOC v. UMB Bank, N.A ., 432 F. Supp. 2d 948, 954-55 (W.D. Mo. 2006) (finding it unreasonable of the EEOC to refuse the employer's requests for a conciliation conference).

In defense, the EEOC often takes the position that it would be futile and unnecessary to conduct a face-to-face meeting where the employer expresses resistance to making a significant counter-offer to the EEOC's opening proposal. However, courts have found that this fact does not make the EEOC's refusal to meet with the employer any more reasonable. See EEOC v. Pacific Maritime Assoc ., 188 F.R.D. 379, 380-81 (D. Or. 1999); EEOC v. First Midwest Bank, N.A ., 14 F. Supp. 2d 1028 (N.D. Ill. 1998).

2. Refusal to be Flexible with Respect to Timing

The seminal case illustrating judicial intolerance of unreasonable and inflexible timing requirements imposed by the EEOC during conciliation is the Asplundh case noted above. There, the EEOC investigated the charge for three years before issuing its cause finding. Then, 'in a flurry of activity,' the EEOC issued its determination, proposed nation-wide conciliation, and provided the employer twelve business days to respond. When the employer requested a reasonable extension of time to respond, the EEOC immediately terminated conciliation and announced its intent to sue. The Eleventh Circuit affirmed the district court's dismissal of the case based on the EEOC's actions, ruling that the EEOC's conduct 'smacks more of coercion than of conciliation.' Asplundh, 340 F.3d at 1259-60.

The United States District Court for the Southern District of New York reviewed a similar case, in which the employer was given eight days to respond to the EEOC's conciliation proposal on behalf of three charging parties and other unnamed employees. EEOC v. Golden Lender Financial Group, No. 99-8591, 2000 WL 381426 (S.D.N.Y. Apr. 13, 2000). The employer made a counter-proposal for the three charging parties, but requested more information regarding the unnamed individuals. One day later, the EEOC declared conciliation a failure and subsequently filed suit. The court held that the EEOC failed to conciliate in good faith because it made no efforts to respond to the employer's counterproposal, instead simply declaring conciliation a failure.

3. Refusal to Negotiate

Guidance in the EEOC Compliance Manual suggests that the EEOC should not submit 'take it or leave it' conciliation proposals. EEOC Compliance Manual ' 64.6. Despite this guidance, the EEOC occasionally submits 'take it or leave it' offers, particularly with respect to the monetary terms. Courts evaluating the EEOC's conciliation efforts under the less deferential approach generally frown upon 'take it or leave it' conciliation proposals by the agency. In EEOC v. Pet Inc., the employer expressed its willingness to engage in conciliation attempts with respect to broader class issues, but significantly limited the scope of those discussions by informing the agency that it would not consider reinstating the charging party or pay him any back wages. 612 F.2d at 1002. Despite the employer's steadfast refusal to negotiate with respect to relief for the charging party, the court found that the EEOC's refusal to attempt to conciliate the broader issues:

[I]s not the sort of good-faith attempt at conciliation on the part of the EEOC that Title VII contemplates. To withdraw from discussions while the other party is offering to negotiate the broad issues, merely because an impasse has occurred as to the charging party, smacks more of coercion than of conciliation. Such an all-or-nothing approach on the part of a commission, one of whose most essential functions is to attempt conciliation, will not do.

The United States District Court for the Southern District of Mississippi recently found that the EEOC's submission of an all-or-nothing proposal evidenced its failure to conciliate in good faith, ultimately concluding that the agency's actions were so frivolous and unreasonable that it assessed the employer's attorneys' fees against the EEOC. EEOC v. Agro Distributors, LLC , 442 F. Supp. 2d 357 (S.D. Miss. 2006). There, the EEOC made clear to the employer that any counteroffer to its conciliation proposal had to include reinstatement, full back pay and compensatory damages. Finding that the EEOC did not attempt conciliation in good faith, the court stated:

[t]he EEOC appears to have issued an all-or-nothing proposal in this case based on faulty facts and did not 'respond in a reasonable and flexible manner' to the entreaties by [the employer] to resolve this matter. It appears that the Commission dealt in an arbitrary manner based on preconceived notions of its investigator and ignored the attempts of [the employer's] counsel to engage the Commission in settlement discussions.

After granting summary judgment in the employer's favor on the merits of the discrimination claim, the court found that the EEOC's actions were unreasonable and frivolous, and thereby assessed the employer's attorneys' fees against the EEOC. Discussing the waste of significant judicial resources on the case, the court reasoned that, had the charge been 'investigated, reasonably conciliated and reasonably considered during the course of the litigation, it would have never gotten to this point.'

4. Refusal to Discuss the Merits

The EEOC Compliance Manual suggests that employers should be given the opportunity during conciliation to question the EEOC about the merits of its cause finding and its proposed relief. EEOC Compliance Manual ' 62.2. The agency, however, consistently takes the position that it will not engage employers in discussions about the merits of a charge during the conciliation process. According to the EEOC, the exclusive focus of the conciliation process should be on negotiations, with minimal or no dialogue about the basis for or strength of the EEOC's cause finding. The EEOC often uses this position to justify its refusal to engage in any discussion about the merits of its cause finding. Contrary to this position, some courts have found it appropriate and even necessary for the agency to address the merits of a charge during conciliation. See, e.g., EEOC v. UMB Bank, N.A ., 432 F. Supp. 2d at 954-55.

In EEOC v. UMB, the EEOC brought suit on behalf of a charging party who claimed the employer unlawfully failed to hire him on the basis of disability. During the EEOC's investigation, the employer maintained that the charging party contended he was unable to perform the job at issue without an accommodation that the employer believed to be unreasonable. During the conciliation process, however, the employer learned that the charging party contended he was able to perform the job at issue without that accommodation. In light of this new information, the employer requested a face-to-face conciliation meeting with the EEOC and the charging party to straighten out any confusion about whether the charging party needed accommodations to perform the job at issue. The EEOC denied the employer's requests, pressed ahead toward litigation, and filed a motion for summary judgment on the issue of whether it had conciliated in good faith.

The United States District Court for the Western District of Missouri denied the agency's motion, concluding that the EEOC unreasonably denied the employer the opportunity to assess the crucial issue of whether the charging party was actually capable of performing the job at issue. Id. at 954-55. The court reasoned that, without the opportunity to evaluate this issue, the employer 'had no foundation from which to engage in meaningful conciliation discussions or to generate a conciliation proposal.' Id. at 955. Consequently, the court found that the EEOC denied the employer an 'adequate opportunity to respond to all charges and negotiate possible settlements,' and did not respond in a 'reasonable and flexible manner to the reasonable attitudes of the employer.' Id.

Guidance for Employers

Conciliation is an important and potentially advantageous opportunity, and employers should approach the conciliation process meaningfully. The EEOC does conciliate some charges in a flexible manner, with an eye toward reasonable resolution in the pre-litigation stage. However, the EEOC may be inflexible where it views a conciliation failure as beneficial to its end goal. This occurs where the EEOC wants to pursue litigation, or wants settlement to come after conciliation fails, when the resolution can be made public through entry of a Consent Decree and issuance of a press release.

When entering conciliation with the EEOC, employers should keep in mind that courts are not likely to penalize the EEOC where both parties contribute to the breakdown of the conciliation process. As demonstrated by the cases above, courts measure the EEOC's conciliation efforts by its response to the reasonable attitudes of the employer. As such, employers should consider the following approaches when responding to an inflexible conciliation style on the part of the EEOC. These steps will enhance the potential for success in the conciliation process and create a good record should the need for it arise.

Most importantly, employers should overtly communicate their willingness to conciliate in correspondence with the EEOC to demonstrate their own good faith. Such correspondence should also memorialize any less than reasonable conduct on the part of the EEOC. If the EEOC has not provided enough information about the merits of its cause finding, do not simply request reconsideration of the cause finding. The EEOC is likely to interpret this as a signal that the employer is not interested in conciliation. Any request for reconsideration should be accompanied by a clear expression of willingness to conciliate.

If the EEOC refuses to address the merits during conciliation, draft correspondence again expressing your desire to conciliate, and explaining that you have insufficient information to engage in meaningful conciliation or generate a counterproposal. Request an explanation for the EEOC's cause finding and conciliation proposal, noting that the EEOC's Compliance Manual requires it to provide a rationale for the remedies sought during conciliation.

Encourage and request the EEOC to provide in writing a detailed basis for its damage calculation, including information about any mitigation of damages or failure to mitigate damages by the charging party. Do not be hesitant to ask questions.

Finally, follow written correspondence on these issues with a request to have an in-person conciliation conference, explaining that a face-to-face meeting will allow the parties to engage in more meaningful conciliation dialogue.

William C. Martucci, a member of this newsletter's Board of Editors, and Kristen A. Page are corporate defense lawyers in the National Employment Litigation and Policy Group at Shook, Hardy & Bacon, L.L.P. in Washington, DC, and in Kansas City, MO. They recently tried an ADA jury case with the EEOC in which the defense prevailed. Martucci may be reached at