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How Conciliatory Should You Be?

Many employers faced with a charge of discrimination have participated in the Equal Employment Opportunity Commission’s mediation process. Employers, however, may not be as familiar with a separate EEOC process known as “conciliation.” This article reviews that process and provides suggestions for employers negotiating with the Commission.

EEOC Required to "Conciliate"—However It Sees Fit—Before Suing Employers

Executive Summary: In a limited victory for employers, the Supreme Court held last week in Mach Mining, LLC v. EEOC that courts have jurisdiction to review whether the Equal Employment Opportunity Commission ("EEOC") fulfilled its statutory obligation to conciliate with an employer before filing a lawsuit against it. A court's scope of review is extremely limited, however, with an inquiry limited to the quality or nature of the EEOC's conciliation efforts. Courts may review that the EEOC: 1) informed the employer about the nature of the alleged discrimination and which employee(s) have allegedly suffered from such discrimination, and 2) tried to "engage the employer in some form of discussion," written or oral. If the court finds the EEOC neglected these "barebones" requirements to conciliate prior to litigation, the employer's remedy is a stay of the lawsuit and an order requiring the EEOC to undertake the mandated conciliation efforts.
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