Before anyone can file a suit alleging a violation of the Americans with Disabilities Act, they first have to exhaust administrative remedies. That means they have to file a claim with the EEOC first. In some cases, a plaintiff files a claim with the state discrimination authority and that claim gets cross filed with the EEOC. It is then up to the EEOC to investigate the matter. Sometimes in the course of their investigation, it turns into something broader, a class action. If the EEOC turns it into a class action, the question is do they have to tell the defendant the specific members of that class before filing suit? A case that addressed this question is a recent decision from the northern district of Illinois in the case of EEOC v. United Road Towing, Inc. docket number 10 C 6259, May 11, 2012 written by Judge Ruben Castillo.

In this case, two people filed claims with the EEOC saying that United Road violated the Americans with Disabilities Act by automatically terminating a person upon the expiration of unpaid leave and by denying another person a reasonable accommodation, terminating that person, and then denying that person the ability to be rehired. After investigation, the EEOC issued a determination letter to United Road stating that it had reasonable cause to believe that United Road had committed three separate violations of the Americans with Disabilities Act against the persons who filed a charge with the EEOC and against a class of disabled individuals. More specifically, the EEOC said that it had reasonable cause to believe that United Road discriminated against the charging party and the class of disabled individuals in its application of its unpaid leave policy; denied reasonable accommodation to a class of disabled individuals; and discriminated against the charging parties and a class of individuals by failing to rehire them. Settlement talks broke down when the EEOC requested $2 million in monetary relief for the charging party and the affected the class members and a demand that United Road helped EEOC determine who the class members were. United Road felt that the class was being expanded from what they believed the EEOC had told them previously and therefore, broke off settlement talks because they believed that the EEOC did not make an offer in good faith. In discovery, the EEOC provided detail to United Road concerning the specific nature of their claims and the identities of the claimants. United Road believing the conciliation process was sufficient, declined the offer to negotiate a resolution and filed the summary judgment motion.

Before the EEOC can file a claim of discrimination, the EEOC must serve notice of the charge on the employer, investigate the charge, and if it finds reasonable cause to believe that a violation occurred, attempt conciliation with the employer. United Road in its summary judgment motion argued that the EEOC investigation process was deficient and that they did not conciliate with respect to the class members prior to filing the suit. With respect to the first issue, Judge Castillo said that the Seventh Circuit Court of Appeals had made it clear that the court may not review EEOC administrative investigation to determine whether a particular investigation sufficiently supports the claim that the EEOC brings in a subsequent lawsuit. That is, whether probable cause exists is a matter for the EEOC to determine not the courts because otherwise the focus of discrimination litigation in employment would become the EEOC’s investigation and not the validity of the actual claims of discrimination.

With respect to the conciliation process, the first question the court was faced with was what is the standard of review for determining whether the conciliation process was defective. There are two standards. First, some courts use a deferential standard. That is, a court will not review the substance of the conciliation process and will ask only whether an attempt to conciliate was made. Other courts use a heightened scrutiny standard where the court reviews the EEOC effort for reasonableness and responsiveness under all the circumstances. The Seventh Circuit has not decided which standard to use, but Judge Castillo said that that was not an issue because either standard was met in this case. In particular, the court said that both parties were at fault with respect to making sure that the scope of conciliation was clear. That is, the EEOC did not clarify its position after receiving communication from United Road indicating that there was a misunderstanding concerning the scope of the conciliation. However, on the other hand, United Road did not request more information or clarification when it received the EEOC’s $2 million settlement demand. Instead, they terminated the conciliation. As a result, the court declined to grant summary judgment to United Road since both parties were at fault with respect to the mistaken scope of conciliation. Therefore, the court denied summary judgment on that issue, and stayed the proceedings for 14 days to allow the EEOC and United Road to attempt conciliation on claims involving the class.

So what can you take away from this case. First, courts are going to have a hands-off policy with respect to the actual EEOC investigation and whether probable cause was correctly determined. Second, if you are challenging conciliation, the attorney needs to investigate whether their jurisdiction is a heightened scrutiny or deferential standard jurisdiction. Eventually, the US Supreme Court may step in to decide this question so that it is consistent. Regardless of which standard the court uses, if a defendant may have reason to believe that the EEOC is after something broader, the defendant should take the opportunity to clarify that. If they don’t, then the court may be justified in finding that the heightened scrutiny standard is satisfied as well.

In short, the EEOC does have the ability to pursue relief in litigation for similarly situated claimants whose allegations are not individually conciliated but whom defendants are generally aware of during the conciliation process. On the other hand, the EEOC does have the obligation to clarify its position with regarding to the class members they are trying to conciliate for when asked to do so by the defendant (United Road did not make such a request in this case).

Preventive law tip: In other words, if a defendant being subject to a class claim from the EEOC is not sure of the scope of that class and who may be the members of that class, the defendant needs to ask for clarification since under this case, the EEOC does have the obligation to make clear what the class is.