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Litigating with the EEOC
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.
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