When an employee experiences workplace discrimination, he or she must usually first go to the Equal Employment Opportunity Commission (EEOC) if the workplace is covered by federal law. The EEOC investigates the claim, and may pursue litigation on the employee’s behalf depending upon the type of case. Other remedies include mediation, settlement, and conciliation.The EEOC’s conciliation methods have recently come under scrutiny of the Seventh Circuit Court of Appeals. In EEOC v. Mach Mining, LLC, the Seventh Circuit recently heard oral arguments as to whether courts should be permitted to review the EEOC’s conciliation efforts. If so, should the reviewing courts use heightened scrutiny or a deferential scrutiny?
Conciliation involves the EEOC informing the employer that there is reasonable cause to believe that discrimination has occurred. The EEOC then invites both parties to sit down and the EEOC investigator works with them to come up with a fair resolution. This may involve negotiations with offers and counter-offers. The idea is to resolve the issue without spending money on litigation.
However, sometimes following conciliation proceedings, employers will seek a review from the district courts, which may then end up reducing or dismissing the lawsuits. In these cases, the district courts argue that the EEOC did not sufficiently carry out its conciliation duties prior to litigation. The EEOC argues for its part that its conciliation efforts should be unreviewable, and that employers are going to court citing conciliation “failure” as a way of preventing the EEOC from enforcing employment laws.
During the oral arguments, Seventh Circuit Judges Diane Wood and David Hamilton referenced Title VII of the Civil Rights Act, and its language restricting whether conciliation efforts can be disclosed. At the same time, Judge Michael Kanne asked the EEOC if there should not be some way for an outside observer to measure whether conciliation had occurred. The EEOC responded that an outsider should be able to look at communication from the EEOC showing conciliation was sought and failed, but not at the substance of the conciliation itself.
The Seventh Circuit judges were also critical of the idea that an EEOC lawsuit could simply be dismissed in court due to improper conciliation. Judge Wood proposed alternate remedies such as a stay in the litigation so parties could hold further discussions, or sanctions that could be applied at the end of a case to the remedies available. The Seventh Circuit will now take the issue under advisement and provide a ruling later in the year. Regardless of the way the court rules, hopefully the outcome will be one that benefits workers, who might otherwise be too intimidated by their employers to work out a decent arrangement with them. In the meantime, if you live in Indiana and have experienced discrimination, contact an Indiana employment discrimination attorney to learn your options.
Miller & Falkner is a plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. Contact us today for a free consultation.