An African American delivery driver was the victim of racial
name-calling, and was exposed to a noose hanging in the workplace
which the manager refused to remove. The EEOC issued a Letter
of Determination finding probable cause of racial harassment in
violation of Title VII.
After what the Court called "failed conciliation
attempts," the EEOC filed a lawsuit, which the company
sought to have dismissed, arguing that the EEOC had not fulfilled
its statutory duty to conduct conciliation proceedings in good
What does the EEOC's duty to
The EEOC is required under Title VII to "endeavor to
eliminate" any unlawful employment practice as alleged by the
charging party, "by informal methods of conference,
conciliation, and persuasion." See section 5(b). But before it
files a lawsuit, how much must the EEOC do to be said to have
attempted to conciliate? And can an employer get a lawsuit
dismissed if the EEOC did not try to conciliate "in good
In the lawsuit discussed in this blog, the Court held that
although the conciliation requirement is not
"jurisdictional" (that is, it is not a pre-requisite for
the Court to even hear the case), nonetheless the EEOC's
conciliation requirement must still be complied with "in good
faith" or else the case may be subject to dismissal.
But what constitutes good faith?
Is any colorable attempt at conciliation sufficient to be called
"good faith"? The EEOC does not act in good faith
by simply "making a take-it-or-leave-it demand"
settlement offer, but this case was different: it was
"Defendant's refusal to make any counteroffer that
resulted in the EEOC's termination of conciliation attempts as
futile. If Defendant was unsatisfied with the EEOC's offer
based upon the evidence, it could have made a counteroffer for a
token sum. If the EEOC had refused to budge, perhaps the Court
could then determine that there was no good faith conciliation
attempt. But Defendant refused to make any counteroffer at
The Court concluded that "Defendant's continued refusal
to make any counteroffer when repeatedly solicited for one makes it
impossible for the Court to determine that the EEOC was not
prepared to conciliate in good faith."
The Court therefore declined to dismiss the case.
Unless the employer bargains in good faith in the conciliation
process, even by making a "token" offer or counter-offer,
a court is unlikely to dismiss a lawsuit by concluding that the
EEOC breached its duty to conciliate in good
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.
In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act").