I remember being surprised at the intensity of the objections by some of the EEOC panelists to my suggestion at an EEOC public meeting earlier this year that the EEOC implement a pilot ADR program as a part of its conciliation process. One of those objections was made by an EEOC Regional Attorney out of the Phoenix District Office who commented as follows:
[W]e have a fabulously successful ADR program and I would urge employers to take more advantage of that than they do. That’s early in the process. It’s such a successful program. It’s a wonderful opportunity to settle. And there’s all sorts of opportunities to enter into no-fault settlement agreements and just settle a case along the way. But as Julie has said, once we have finished our investigation, we have determined there was discrimination and so our goals at that point are twofold. One is to make whole the victims of that discrimination and number two, we are trying to make sure that that discrimination never reoccurs in that workplace. And with those goals in mind, the statutory duty to enter into conciliation is on us, is on the EEOC. And so it’s our duty. I think a neutral in that situation is just inappropriate. If employers want to take advantage of the ADR process early on, I would really recommend that people, that employers do so. So I think it’s completely inappropriate for there to be a neutral conciliation process.
(emphasis added). To read the transcript of the EEOC public meeting at which my suggestion of an ADR conciliation program was discussed click here. The quote above is in the discussion from the panelists included in Roundtable III.
In reflecting on this comment, it struck me then and it strikes me now that the attorney misstates the procedural posture of the charge. The EEOC has not, in fact, as this attorney states “determined that there was discrimination.” Indeed, for the EEOC to do so would effectively usurp the role of juries in Title VII and other EEO cases. The EEOC is not judge and jury. The procedural posture at the time of conciliation is that the EEOC has found “reasonable cause” to believe that the charge is true.
It’s of course entirely possible that this regional attorney simply misspoke, but it does cause one to stop and ask whether it is this type of misunderstanding of the EEOC’s role and the procedural posture at the time of conciliation that is contributing to the type of tactics and actions we’re seeing of late from the EEOC.
But, I digress.
As I write this blog I think I’ve gained some additional insights into the intensity of the objections to my suggested pilot ADR program at the conciliation phase.
You see at the same time I was writing and submitting my written testimony to the EEOC suggesting ADR be a part of conciliation, the EEOC was (unbeknownst to me) preparing to file a motion in a case pending in the Southern District of the U.S. District Court of Texas arguing that federal courts don’t have the power to enforce Title VII’s requirement that the EEOC conciliate in good faith. In that motion, the EEOC conceded that whether it attempted to conciliate is judicially reviewable, but argued that how the EEOC conducted conciliation is not. In support of this argument the EEOC stated that “[t]he constitutional doctrine of separation of powers prevents judicial review of discretionary decisions by an executive agency, such as the EEOC.”
I just had occasion to read the EEOC’s motion and supporting brief in that case as the federal judge who heard the motion has this month rejected the EEOC’s arguments.
In reading the EEOC’s arguments in support of its motion, I must confess to agreeing with the employer that the EEOC’s argument is “remarkable” and “demonstrates a persistent and serious misunderstanding about basic principles of administrative law, sovereign immunity, and the nature of judicial review.”
After reading the EEOC’s arguments in this case, I guess I don’t feel so badly about my suggestions being summarily rejected by some of the other EEOC panelists at the public hearing. I mean the reaction that day is in line with what the lawyers over at Seyfarth call a “consistent message” from the EEOC — “nobody should tell us how to conciliate our cases, not even the courts.”
I urge the EEOC Commissioners and General Counsel to take this most recent loss as an opportunity to step back and reflect on whether these types of tactics and arguments are the highest and best use of your limited resources. Reflect on whether, for example, these resources would be better served trying to help resolve the 5,000+ employee claims the EEOC shortchanges each year.
Wouldn’t your limited resources be better spent trying to do what you’ve been charged by Congress to do — work with employers and the employees who have trusted you with their claims to informally resolve these cases?