Employment Law Daily EEOC’s ‘take-it-or-leave-it’ conciliation approach was acceptable
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Tuesday, April 24, 2018

EEOC’s ‘take-it-or-leave-it’ conciliation approach was acceptable

By Marjorie Johnson, J.D.

The EEOC met its obligation to conciliate even if it adopted a “take-it-or-leave-it” approach to negotiations, and its notice of determination set forth sufficient details to alert the employer as to the details of the allegations against it, a federal court in Maryland held, denying the employer’s motion to dismiss the agency’s lawsuit alleging the employer subjected a class of female employees to a hostile work environment and unlawful retaliation (EEOC v. MVM, Inc., April 18, 2018, Chuang, T.).

Harassing manager. The EEOC brought this lawsuit against an employer that provides security services at a Social Security Administration (SSA) campus. When awarded the contract in 2014, the company inherited certain personnel from the SSA’s previous contract, including a female guard and a male site manager. The manager purportedly subjected the guard and other females to sexually explicit comments and unwanted touching, including in the presence of SSA supervisors and managers.

Fired after complaining. The guard complained about the harassment on February 18, 2016, after the manager had cornered her on an elevator and kissed her without her consent. On February 29, the employer’s general counsel questioned her about her complaint. Though she told him that the manager may have harassed other women, none of the witnesses she identified were interviewed. She was terminated on March 1 and subsequently filed an EEOC charge.

Letter of determination. On July 20, 2017, the EEOC issued a letter of determination stating that it had found reasonable cause to believe that the employer violated Title VII as to the complainant and other female employees and invited the company to participate in conciliation. The EEOC then engaged in communications to provide an opportunity for the employer to remedy the described discriminatory practices. On September 13, after concluding that it could not secure an acceptable conciliation agreement, the agency issued a notice of failure of conciliation. It then filed this lawsuit on behalf of the female guard and a class of aggrieved female employees.

“Barebones” review. In Mach Mining, LLC v. EEOC, the Supreme Court provided guidance on the parameters of Title VII’s requirement that the EEOC engage in conciliatory efforts before filing suit. The High Court also described judicial review as a “relatively barebones” inquiry done to ensure that the EEOC communicated “in some way (through conference, conciliation, and persuasion) about an alleged unlawful employment practice in an endeavor to achieve an employer’s voluntary compliance.” The EEOC must show two things: (1) that it informed the employer about the specific allegation by describing both what the employer has done and which employees (or class of employees) have suffered; and (2) that it engaged in some form of discussion to give the employer an opportunity to remedy the alleged discrimination.

Courts can’t delve too far. Courts are only permitted to review whether the EEOC satisfied these two requirements and cannot delve into what specifically happened during the discussions. Since the EEOC has “expansive discretion” to decide how to conduct conciliation efforts and when to end them, judicial review does not extend to considering the EEOC’s conduct during the process or whether it negotiated in good faith. Matters such as the “pace and duration of conciliation efforts, the plasticity and firmness of its negotiating positions, the content of its demands for relief,” and “strategic decisions such as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers” all lie beyond the scope of judicial review.

Sufficiently conferred. Here, the EEOC complied with both conciliation requirements. First, its letter of determination gave notice that it had uncovered evidence that the female guard was subjected to “unwanted sexual comments, stares, and touching,” that she was terminated for complaining, and that “a class of female employees were also subjected to unwanted sexual comments and touching,” sometimes in the presence of or with the knowledge of management. The EEOC also stated that it found reasonable cause to believe that the guard “was sexually harassed and subjected to a sexually hostile work environment,” “discharged in retaliation for engaging in protected activity,” and “since at least March 2014, a class of females have been sexually harassed and subjected to a hostile work environment, in violation of Title VII.”

The letter then proposed a conciliation process, noted that it was an “opportunity to voluntarily remedy the unlawful employment practices,” and invited the employer to respond to a specific conciliation proposal. The EEOC further alleged that though it engaged in communications to provide an opportunity for the employer to remedy the discriminatory practices, it was unable to secure an acceptable conciliation agreement, prompting it to issue a notice of failure. All of this was acknowledged in the general counsel’s declaration.

Enough detail. Though the employer complained that the letter of determination didn’t provide “specific details describing the nature of the act(s) related to the purported sexual harassment and/or sexually hostile work environment,” the EEOC was not required to provide the level of detail that the employer demanded. Rather, it sufficiently described the conduct and the employees who suffered as a result, including specifically identifying the original complainant.

The court also squarely rejected the employer’s assertion that the EEOC failed to meet its conciliation obligations since it didn’t respond to the company’s offer and adopted a “take-it-or-leave-it” approach. Mach Mining directs that a court’s review of the conciliation process not extend to matters that fall within the EEOC’s broad discretion, including “strategic decisions such as whether to make a bare-minimum offer” and whether “to respond to each of an employer’s counter-offers.” Indeed, based on Mach Mining, courts have declined to take the type of “deep dive” into the conciliation process that the employer sought.

Motion to strike. The court also granted the EEOC’s motion to strike portions of the employer’s legal memorandum and its general counsel’s accompanying declaration, both of which impermissibly disclosed information about the conciliation process between the parties, in violation of Title VII.

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