Employment Law Daily When viewed as a whole, information provided by EEOC met conciliation requirement
Monday, January 25, 2016

When viewed as a whole, information provided by EEOC met conciliation requirement

By Kathleen Kapusta, J.D. While sympathetic with an employer’s desire to more fully understand the EEOC’s position during conciliation and applauding its willingness to participate in a back-and-forth discussion, a federal court in Illinois nonetheless concluded that pursuant to Mach Mining, it could not impose additional procedural requirements on the agency beyond engaging in some form of discussion, “even if it is simply the extension of a take-it-or-leave-it offer.” Finding that the EEOC had done that here, and thus satisfied its conciliation obligation under the ADA, the court granted the agency’s motion for partial summary judgment (EEOC v. Amsted Rail Co., Inc., January 20, 2016, Gilbert, J.). Not medically qualified. When an applicant with a history of carpal tunnel syndrome applied to Amsted Rail for a “chipper” position, he was offered a job contingent on passing a medical evaluation. After the exam, Amsted purportedly declined to hire him because he was not medically qualified. He then filed a charge of discrimination with the EEOC, which sent notices of his charge to Amsted; neither the notice nor the charge identified the nature of his disability. The agency subsequently notified Amsted that it was expanding its investigation to a class of chipper applicants “who were not hired because they either had a record of carpal tunnel syndrome or failed a nerve conduction test.” In February 2013, it sent a letter of determination to the parties and issued a letter to Amsted’s counsel inviting it to conciliate the dispute. After notifying Amsted a year later that conciliation efforts had been unsuccessful, the EEOC sued, alleging the company violated the ADA when it denied the applicant and a class of job applicants employment because it regarded them as disabled or because they had a record of disability. Amsted argued that the EEOC failed to conciliate and the EEOC moved for summary judgment on this issue. Mach Mining. The Supreme Court, in Mach Mining, held that the EEOC’s conciliation efforts are subject to judicial review, but that review is narrow. The Court put forth a two-part test to determine whether the EEOC complied with the conciliation requirement: the EEOC must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. Bookend letters. While “bookend” letters from the EEOC inviting conciliation and then finding conciliation was unsuccessful, without evidence that in between the letters the EEOC actually attempted to engage in discussions to remedy the discriminatory employment practice, are not enough, the agency argued that here its bookend letters were supplemented by an affidavit from an EEOC deputy district director authenticating the letters and stating that the agency had communicated with Amsted in order to provide it with an opportunity to remedy the discriminatory practices but was unsuccessful. Amsted, however, argued that the EEOC failed to inform it about the specific allegations against it because the letter of determination contained only conclusory statements and did not outline or summarize the evidence on which the agency relied in making its determination or assist it in understanding why the EEOC believed its employee screening process violated the ADA. Rejecting this contention, the court found the agency appropriately notified Amsted of the allegations against it and who it believed suffered as a result of its alleged wrongful conduct. Adequate notice. Although the court found that the relevant documents were notably devoid of specifics as the charge did not name the relevant disability and the letter of determination was not clear, in light of other statements from the EEOC, adequate notification was given. For example, an EEOC letter sent to Amsted during its pre-reasonable cause finding investigation made clear that the investigation concerned people who were not hired because of a record of carpal tunnel syndrome or because they failed a nerve conduction test. Additionally, in the letter of determination, the EEOC stated that it believed Amsted had discriminated against a class of chipper applicants based on the outcome of a nerve conduction test and that this constituted discrimination on the basis of disability, perceived disability, and/or record of disability. Thus, the information when viewed as a whole, was sufficient to inform Amsted of the specific allegations of discrimination. The EEOC also appropriately tried to engage Amsted in some form of discussion so as to give it an opportunity to remedy the alleged discrimination. Its affidavit was evidence that it engaged in communication with Amsted between the “bookend” letters but was unable to reach a satisfactory conciliation agreement. Although Amsted conceded that communications were made, it argued that the court should look at the content of those communications to show that the EEOC’s conciliation efforts were a sham. Finding that pursuant to Mach Mining it could not impose additional procedural requirements on the EEOC beyond engaging in some form of discussion, the court determined that the agency had satisfied its obligation to conciliate.

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