EEOC Conciliation Process Goes Under the Microscope

Before filing a lawsuit against an employer, the Equal Employment Opportunity Commission (EEOC) must first engage in conciliation – the process of attempting to resolve a finding of discrimination without court involvement. But what constitutes a reasonable conciliation effort by the EEOC; and what role should the courts play, if any, in determining whether such efforts were made? Currently the answers vary from jurisdiction to jurisdiction. In some, the EEOC’s failure to afford an employer a meaningful opportunity to settle a case without litigation provides the employer with an important defense if the EEOC then brings a lawsuit. A significant decision that took the opposite view may go before the Supreme Court later this year. In that decision, EEOC v. Mach Mining, the court concluded that the EEOC’s conciliation efforts—or lack thereof—are entirely immune from judicial review. “Employers should be watching this case very closely,” says Mark Girouard, an employment attorney with Nilan Johnson Lewis. “Whether or not the Supreme Court takes the case, it will continue to impact how the EEOC approaches its pre-suit conciliation obligations.” Mark Girouard and fellow attorney Sarah Riskin are available to discuss the EEOC’s current approach to conciliation and how a Supreme Court decision in Mach Mining could establish a uniform standard for how the courts view the EEOC’s conciliation efforts and whether the EEOC’s failure to make meaningful conciliate efforts will remain a viable defense for employers. Contact Mark Girouard at mgirouard@nilanjohnson.com or 612-305-7579, or Sarah Riskin at sriskin@nilanjohnson.com or (612) 305-7500.