This is Part 2 of a 2 Part series designed to educate employers on the EEOC Charge Process. It picks up at the point where the EEOC has made a “For Cause” determination” that sufficient evidence exists reasonable cause to believe that discrimination, as alleged in the Charge, has taken place by the employer. What are the options open to the employer?
The EEOC is statutorily bound to offer conciliation before it can file suit on behalf of an aggrieved employee. The EEOC is mandated to inform the employer of the claim, and provide the employer an opportunity to remove the alleged discriminatory practice. Conciliation gives the parties one final opportunity to resolve the claim before the EEOC files suit on behalf of an employee.
An employer is not required to participate in conciliation efforts. Employers should know that if the EEOC “threatens” to bring suit on behalf of an aggrieved employee or class of employees, its history suggests a risk analysis for the employer. For example, in 2014, the EEOC successfully conciliated 1031 cases. However, the EEOC only filed suit in less than 8% of those cases where it found “for cause” determinations. Therefore, an employer must weigh the risk that the EEOC will actually file suit is minimal and decline to participate in conciliation. An employer may decide the risk that the EEOC will file suit is minimal and decline to participate in conciliation. Employers may be more inclined to defend a lawsuit brought by an individual employee rather than fight the full weight of the EEOC.
If the employer does decide to participate in the conciliation process, the EEOC will send a list of remedies the EEOC will demand. These remedies could include:
- Monetary back pay;
- Posting of notice regarding applicable statutory requirements;
- Injunctive relief against the employer to ensure such conduct does not reoccur;
- Training by the employer of its staff regarding the statutory provisions found to have been violated;
- Follow up monitoring with the EEOC to ensure compliance.
Each of these proposed remedies are subject to negotiation by the parties.
For an employer, the conciliation process can be discouraging. For one thing, it occurs after the EEOC has made a determination that discrimination has already taken place. The focus is on the remedy and generally disallows an employer to plead his or her facts that may negate the initial claim. The EEOC has already made up its mind as to liability and the employer does not have a chance to change that perception.
It is critical that an employer considering the conciliation process consult with an experienced labor and employment law attorney. The attorney will be able to research prior published EEOC settlements involving similar fact patterns. This can be particularly useful when trying to negotiate from a point of claiming the proposed remedies the EEOC is demanding in your particular instance are grossly out of proportion to other similar situations.
If the parties are successful in arriving at an agreeable resolution, that agreement is then reduced to writing and the parties will be bound. Employers should be careful not to accept sweeping remedies just to get the matter over with. Such an action may send a signal to other potential employees that this particular employer is an easy target to go after with potentially meritless claims.
If there is not a successful conciliation, the EEOC may file suit on behalf of the complaining employee or class of employees, or more likely, issue a final determination permitting the Charging Party to file his or her own private lawsuit.
Conciliation may be a beneficial way to resolve a Charge with the EEOC prior to incurring substantial time, expense and disruption associated with full blown employment litigation. However, employers should never enter the conciliation process without experienced labor and employment counsel to review the Charge and perform an in-depth analysis of the merits and risks associated with proceeding on one track or the other.
With over 30 years’ experience in advising employees and businesses on labor and employment issues and business concerns, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing business law landscape. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us.