Employers Who Conciliate in Glass Houses Shouldn’t Throw Stones
Stuck in between the investigation phase and the litigation phase, conciliation of a discrimination charge pending before the EEOC is akin to a middle child - often overlooked - but just as important as the other children. The recent decision in EEOC v. Supervalu, Inc., 2009 U.S. Dist. LEXIS 116718 (Dec. 15, 2009) demonstrates that conciliation should be given the same rigorous attention that defense counsel give to the investigation and ensuing litigation of an EEOC charge. Further, if an employer is going to allege that the EEOC failed to conciliate in good faith, that employer must be ready to prove that it approached the conciliation process with a seriousness and good faith that was lacking from the EEOC.
In Supervalu, Inc. the EEOC brought suit against Supervalu and Jewel-Osco alleging that they failed to provide their employee, Patricia Shied, with a reasonable accommodation in violation of the Title I of the Americans with Disabilities Act of 1990 (”ADA”), 42 U.S.C. § 12101 et seq. and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Before any substantive issues were decided in the case, Supervalu and Jewel-Osco filed a Motion to Dismiss under the Federal Rules of Civil Procedure on the grounds that the EEOC failed to make a sufficient effort to resolve the parties dispute through informal conciliatory means prior to filing suit. The EEOC must attempt conciliation with employers when it finds reasonable cause to believe that the have engaged in discrimination under the ADA, the ADEA, and Title VII. See 42 U.S.C. § 200e-5(b).
U.S. District Judge Elaine E. Bucklo rejected Supervalu’s argument that the EEOC failed to conciliate in good faith. In particular, she identified three deficiencies with Supervalu’s position. First, Judge Bucklo noted that the record before her was factually inadequate so there was no way she could determine whether the EEOC made a good faith effort to conciliate or not. Second, based on the scant record before her, Judge Bucklo noted that the EEOC invited Supervalu to submit a settlement offer on December 13, 2007, yet Supervalu did not respond to this invitation until nearly two years later on March 17, 2009.
Finally, Judge Bucklo held that the EEOC was entitled to conclude that further conciliation efforts would be futile since Supervalu’s settlement offer was $10,000 with no equitable relief. In closing, Judge Bucklo stated:
Under these circumstances, I cannot say that the EEOC failed to carry out its obligation to engage in good-faith conciliation efforts. The EEOC invited the defendants to engage in the conciliation process. However, the defendants responded long after the deadline indicated by the Commission. And when the defendants finally did respond, their offer was underwhelming.
The takeaway from the Supervalu decision is clear. If an employer is going to make the argument that the EEOC did not approach conciliation in good faith, it must present the court with: 1) a complete record, 2) evidence that the employer timely responded to the EEOC’s invitation to conciliate, and 3) evidence that any settlement offer made by the employer accounts for non-monetary or “equitable” forms of relief along with monetary relief. Put another way, before an employer seeks to dismiss or stay a federal case based on the EEOC’s failure to conciliate in good faith, that employer better be able to prove that it approached the process in good faith.
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Tags: Employment Law, Labor & Employment