What Are The EEOC’s Conciliation Requirements?

The Equal Employment Opportunity Commission (“EEOC”) has the express power to enforce Title VII’s prohibition against employment discrimination. The EEOC is granted expansive investigative authority to effectively pursue claims of employment discrimination. If the EEOC finds reasonable cause to believe that allegations of discrimination have merit, it is required to attempt to resolve the matter by informal methods of conference, conciliation (mediation), and persuasion prior to filing a lawsuit against the employer in federal district court.

Title VII limits disclosure of communications made during conciliation and gives the EEOC unfettered authority to accept the terms of conciliation or to file suit. However, Title VII is silent on whether this authority extends to protection from judicial review of the EEOC’s efforts at conciliation. The EEOC, of course, contends that its efforts are not subject to judicial review on the basis that Title VII requires that conciliation efforts be confidential.

From the employers’ perspective, the EEOC’s desire to shroud all conciliation efforts in secrecy has resulted in strong-arm tactics being used by the EEOC during the conciliation process, with no recourse to the employer. In other cases, the EEOC utterly drops the ball with no real effort to fulfill its statutory duty. A new case gives hope to employers subjected to EEOC conciliation.

Employer compliance with disability discrimination provisions of state and federal law are complex, requiring careful consideration of the interactive process and reasonable accommodations. Recently, the California Court of Appeals upheld the requirement that some employees in the public sector such as police officers must be able to perform ALL essential functions of the job even if they are rarely used. In Lui v. City of San Francisco, a police officer suffered a heart attack and could no longer perform physically strenuous activities. Obviously, police work requires a great deal of strenuous activities including chasing down criminals, physical confrontations and arresting non-compliant suspects.

Lui argued that though he could no longer perform the physical tasks associated with a street cop, he believed he could perform the duties of an administrative police officer. The Department disagreed and argued that all police officers (including those in administration) must be able to perform all the strenuous activities a normal police officer would be expected to do. Officer Lui sued the Department for disability discrimination.

Loring Winn Williams sued his employer, the fire district, for disability discrimination under the California Fair Employment and Housing Act (“FEHA”). Williams v. Chino Valley Indep. Fire Dist.(2013)218 Cal. App. 4th 73. The fire district ultimately prevailed on a summary judgment motion against Williams. Thereafter, the court awarded $5,368.88 in costs to the fire district pursuant to Cal. Civ. Proc. Code §1032(b), which allows a prevailing party to recover costs in any action or proceeding.

Williams claimed that no costs should be awarded to the fire district because his discrimination claim was not “frivolous, unreasonable, or groundless.” Williams relied on the U.S. Supreme Court standard in Christianburg Garment Co. v. EEOC: “In sum, a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case of action upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 421.

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