Court Confronts Questionable Conciliation Campaign by the EEOC

September 24, 2013

Have you ever been involved with a case where the EEOC's conciliation practices lacked key information sharing and other important settlement discussion substance?  If so, you may be interested in a new a set of cases coming from New York last week dealing another litigation blow to the EEOC.  In short, the court agreed that employers should not be forced to face a moving target during the conciliation process. Background Three women filed charges against Bloomberg L.P. for gender discrimination in relation to their maternity leave.  The EEOC expanded its investigation to more than 80 potential class members.  After finding "cause" and during the conciliation process, the EEOC requested, among other demands, that Bloomberg establish a $7.5 million "claim fund" for non-charging party class members who they would, or could, not identify.  The EEOC was to be given the power "to determine the eligibility of Potential Class Members" and "to make all determinations as to amounts of monetary relief to each Class Member."  Bloomberg would only learn of who was provided settlement money after the process was complete. The Litigation While underlying class claims were dismissed by a federal court in 2011, the EEOC proceeded with claims on behalf of 29 individuals, none of whom filed charges with EEOC.  The United States District Court for the Southern District of New York found that the EEOC did not conduct sufficient pre-litigation requirements for the remaining individuals. The Court thoughtfully explained the differences in the processes required for a class case and those required for individual claims.  "Allowing the EEOC to subvert its pre-litigation obligations with respect to individual claims by yelling far and wide about class claims would undermine the statutory policy goal of encouraging conciliation."  EEOC, et al. v. Bloomberg, L.P., 2013 U.S. Dist. LEXIS 128385, *25 (September 9, 2013). The Court found that while the EEOC has the authority to bring claims not asserted in the charge of discrimination but that are reasonably related to the charge, the EEOC cannot "abdicate its statutory responsibility to provide sufficient notice and pursue a pre-suit resolution in good faith."   The Court found that the EEOC was not permitted to "level broad accusations of class-wide discrimination to present Bloomberg with a moving target of prospective plaintiffs and ... substitute its own investigation with the fruits of discovery to identify which members of the class, none of whom were discussed specifically during conciliation, might have legitimate individual claims...." With this ruling, the Court aligned its position with the Eighth Circuit's ruling in EEOC v. CRST Van Expedited, Inc., 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009), aff'd, 679 F.3d 657 (8th Cir. 2012). If you are stuck in the EEOC's conciliation process or currently wrangling with the EEOC over broad requests for information or expanding scopes of investigation, it may be time to take a different approach.

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