EEOC May Sue Without Attempting to Conciliate Individual Claims

Agency may proceed on behalf of class of individuals

By Douglas Duerr Apr 5, 2016
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The Equal Employment Opportunity Commission (EEOC) may proceed with Title VII litigation on behalf of a class of individuals even if the EEOC fails to seek conciliation for individual employees, said the 9th U.S. Circuit Court of Appeals in one of the first cases applying the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015), that courts may review the EEOC’s compliance with its obligation to first attempt conciliation with the employer.

Geo is a corporation that employs over 13,000 employees and provides corrections and detention management as well as health and mental health services to federal, state and local government agencies. In 2009, Alice Hancock, a female correctional officer, filed a charge of sexual harassment and retaliation against Geo. In the course of the investigation, which was conducted by the Arizona Civil Rights Division, Geo provided information regarding previous investigations of complaints of sexual harassment at the same Arizona facility. As a result, the Arizona agency was able to identify five additional female employees subjected to sexual harassment.

Following the state’s investigation, the EEOC adopted the state’s reasonable cause determination that a Geo supervisor had sexually harassed and retaliated against Hancock and that the same supervisor, along with other male supervisors, had created an offensive and hostile work environment based on sex that adversely affected a class of female employees at the Arizona facility. In addition, it was found that Geo had failed to take reasonable steps to prevent and correct harassment in the workplace. The EEOC then invited Geo to conciliate, proposing damages for Hancock, a fund to compensate the class of female employees and injunctive relief. At a subsequent conciliation meeting, Geo made a counteroffer of relief to Hancock but made no offer of class relief. At the meeting, the EEOC refused to identify individual class members.

After conciliation failed, the EEOC filed suit, bringing claims on behalf of Hancock and similarly situated female employees. While the case was pending, the EEOC sent letters to other employees and successfully invited other female employees to join in. Upon motion of Geo, the district court held that by failing to attempt conciliation on behalf of individual class members, the EEOC had failed to satisfy its obligation to conciliate on their behalf prior to filing suit. Consequently, it ordered the EEOC to attempt conciliation on behalf of the five female employees it had identified during the investigation and dismissed from the case the female employees who were identified after it had made its reasonable cause determination. On appeal, the 9th Circuit reversed and returned the case to the district court.

While noting that the U.S. Supreme Court had held that courts can review whether the EEOC has met its obligation to attempt conciliation prior to bringing suit, the 9th Circuit reiterated that the EEOC has a large degree of discretion in how it meets that obligation. It merely needs to provide notice of what the employer is found to have done wrong and to identify the person or persons harmed. In the latter regard, according to the appeals court, the EEOC merely needs to describe the class of individuals on whose behalf relief is sought. Thus, the EEOC is not required to identify and seek to conciliate on behalf of specific individuals prior to bringing a lawsuit so long as the class is identified.

Arizona v. GEO Grp., Inc., 9th Cir., No. 13-16081 (March 14, 2016).

Professional Pointer: Although the Supreme Court’s 2015 decision in Mach Mining was seen by some as providing employers with the ability to keep the EEOC out of court should it take a hard bargaining position after a reasonable cause determination, this decision underscores how limited the judicial review may actually be. Thus, while an employer can, and should, push the EEOC to engage in serious conciliation efforts following a reasonable cause determination, it should nonetheless be ready to defend itself in court on the merits.

Douglas Duerr is an attorney with Elarbee, Thompson, Sapp & Wilson LLP, the Worklaw® Network member firm in Atlanta.

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