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7th Circuit: EEOC conciliation efforts can't be disputed in court

According to a federal appellate court, the adequacy of the Equal Employment Opportunity Commission’s pre-trial settlement process is not something employers can challenge in court. Attempting this process, which the EEOC calls “conciliation,” is required by law before the agency can file a lawsuit.

One aspect of ADR that justifies using the word “alternative” is that it limits the opportunity for parties to engage in the costly, time-consuming tactics all-too common in litigation. For example, mediation is intentionally confidential to prevent the content of mediation sessions being used as evidence in subsequent court proceedings. Arbitration shares many of the rules used in court, but the process deliberately limits parties’ ability to file formal motions and to appeal.

This particular case involved an Illinois mining company the EEOC complained had failed to hire single female miner since it began its operations, despite many qualified female applicants. The agency attempted to resolve the issue through conciliation, failed to do so, and filed a lawsuit.

Among other defenses, the company asked the courts to dismiss the lawsuit for an interesting reason. According to the company, the EEOC hadn’t tried very hard to conciliate. It thought the courts should require the agency to try harder before it was allowed to sue.

That argument was just definitively denied, at least in the 7th Circuit. In an unusual move, all judges on the circuit were asked to endorse this ultra-unanimous decision. And, while Pennsylvania is in the 3rd Circuit, employers should think carefully before trying the argument here.

First, the court noted that the conciliation requirement specifically allows the agency to file a lawsuit upon being “unable to secure from the respondent a conciliation agreement acceptable to the Commission.”

Even more central to the point, the court essentially said that asking courts to pick apart negotiations to gauge their adequacy would be a ridiculous waste of their time. Furthermore, sending “district courts down such a dimly lighted path” would only serve to distract all parties from the real issue at stake -- whether illegal discrimination was taking place.

Protecting alternative dispute resolution processes from judicial interference is crucial. For those involved in employment disputes, however, it’s equally important to know that EEOC conciliation isn’t the only option. Both employers and employees would ideally start, long before any federal complaint, to resolve the dispute through negotiation, mediation or voluntary arbitration.

Source: EEOC press release, “In Landmark Ruling, Seventh Circuit Holds Employers Cannot Challenge EEOC Conciliation,” Dec. 20, 2013

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